TX: In a civil forfeiture, the defense apparently must prove a negative on summary judgment

On defense summary judgment in a forfeiture case, the defense has to prove a negative, that the officers did not have “a reasonable belief that the property had or would have a substantial connection with illegal activity.” Grant of summary judgment reversed. State v. Ninety Thousand Two Hundred Thirty-five Dollars and No Cents in United States Currency ($90,235), 11-0642 (Tex. January 25, 2013).* This is the gobbledygook of the month:

Bueno’s only summary judgment evidence was his affidavit. We need not address the affidavit’s weight in light of Bueno’s status as an interested witness, because his affidavit was insufficient to support summary judgment regardless of his status. See Tex. R. Civ. P. 166a(c) (stating the specific requirements for when summary judgment may be based on the uncontroverted testimonial evidence of an interested witness). The affidavit states, as relevant to any connection between the seized property and illegal drug dealing activities, that (1) the vehicle and money were “acquired legally and lawfully”; and (2) the money represented a partial payment from the sale of his ranch. But the affidavit wholly fails to address whether the officers had a reasonable belief that the property had or would have a substantial connection with illegal activity as pleaded by the State—even assuming Bueno could address what the officers believed and whether their beliefs were reasonable. The affidavit certainly does not conclusively prove that none of them did. And until Bueno conclusively established that none of them had such a belief, the trial court could not have properly granted summary judgment on Bueno’s second ground. The court of appeals erred by holding otherwise.

h/t Americans for Forfeiture Reform