Normally, the maximum penalty for a Class A misdemeanor offense in Texas is one year in jail and a $4,000 fine. But this is only the maximum criminal penalty. Some misdemeanor convictions can also lead to the civil forfeiture of assets that prosecutors believe were proceeds or byproducts of the crime. By law, however, the defendant may be entitled to separate notice and hearing of such civil forfeiture proceedings.
Appeals Court: Defendant Entitled to Separate Forfeiture Hearing Following Gambling Conviction
This issue came up in a recent case from the Texas 13th District Court of Appeals. In Datoo v. State, police executed a search warrant on the premises of the defendant. The search recovered $49,518 in case, which prosecutors said was the result of illegal gambling.
The defendant was subsequently tried and convicted of violating Section 47.04 of the Texas Penal Code, which makes it a Class A misdemeanor to “keep a gambling place.” As a result of the conviction, the trial judge ordered the forfeiture of the $49,518 to the Jefferson County District Attorney’s office. On appeal, the defendant argued that this “automatic forfeiture” was not appropriate in this case. Rather, he was entitled to a separate notice and hearing.
To understand the defendant’s argument, you need to know something about how the forfeiture laws work in Texas with respect to gambling. Section 18.18(a) of the Texas Code of Criminal Procedure provides for automatic forfeiture of “gambling paraphernalia” and related contraband when a defendant is convicted of certain specific crimes. These specified crimes did not include the defendant’s misdemeanor offense. As a result, the trial judge’s automatic forfeiture order was incorrect. Instead, the judge was required to conduct a separate hearing where the defendant could have an opportunity to explain why the money should be returned to him.
Before the appeals court, the prosecution conceded the trial judge’s mistake. Yet the prosecution argued the forfeiture order should stand because the defendant failed to “make a timely objection to the trial court.” The 13th District rejected this argument. Given the whole point of the defendant’s appeal was that the judge never conducted a hearing in the first place, the “only possible relief [the defendant] could seek from the trial court was post judgment.”
That said, the appeals court also rejected the defendant’s request for an order returning the $49,518 to him. The appropriate remedy was to have the trial court conduct a hearing. Notably, the state already established its presumptive right to keep the money when it executed a valid search warrant. At the hearing, the burden will be on the defendant to show the money was not actually “gambling proceeds.”
Speak with a Houston Misdemeanor Crimes Defense Lawyer Today
Misdemeanor convictions can complicate your life more than you might think at first. That is why it is important to work with an experienced Houston criminal defense attorney when facing any form of criminal charges. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need legal advice or representation. Call (281) 280-0100.