Asset forfeiture; require hearing to challenge.

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To: Judiciary A
MISSISSIPPI LEGISLATURE REGULAR SESSION 2026

By: Representative Calvert

HOUSE BILL NO. 836

AN ACT TO AMEND SECTION 41-29-179, MISSISSIPPI CODE OF 1972, 1
TO PROVIDE A PROCEDURE THAT ALLOWS ANY PERSON WHOSE ASSETS ARE 2
SUBJECT TO FORFEITURE TO CHALLENGE THE FORFEITURE FOR CERTAIN 3
REASONS; TO AMEND SECTIONS 41-29-153, 41-29-176.1 AND 41-29-177, 4
MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; 5
AND FOR RELATED PURPOSES. 6
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: 7
SECTION 1. Section 41-29-179, Mississippi Code of 1972, is 8
amended as follows: 9
41-29-179. (1) (a) A defendant may petition the court at 10
any time to determine whether his or her seized property should be 11
subject to forfeiture, and whether such forfeiture is excessive 12
under state and/or federal law. 13
(b) The defendant has the burden of establishing that 14
the forfeiture is disproportional to the seriousness of the 15
offense by a preponderance of the evidence at a hearing conducted 16
by the court without a jury. 17
(c) In determining whether the forfeiture is 18
unconstitutionally excessive, the court may consider all relevant 19
factors, including: 20
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(i) The seriousness of the offense and its impact 21
on the community, including the duration of the activity and the 22
harm caused by the defendant; 23
(ii) The extent to which the defendant 24
participated in the offense; 25
(iii) The extent to which the property was used in 26
committing the offense; 27
(iv) The sentence imposed for committing the crime 28
authorizing forfeiture; 29
(v) Whether the offense was completed or 30
attempted; 31
(vi) The hardship to the defendant if the 32
forfeiture is realized and if the forfeiture would deprive the 33
property owner of the owner's livelihood; and 34
(vii) The hardship from the loss of a primary 35
residence, motor vehicle or other property to the defendant's 36
family members or others if the property is forfeited. 37
(d) In determining the value of the instrumentality 38
subject to forfeiture, the court may consider all relevant factors 39
relating to the fair market value of the property. 40
(e) The court may not consider the value of the 41
instrumentality to the state in determining whether the forfeiture 42
of an instrumentality is constitutionally excessive. 43
(f) If the court determines that the forfeiture is 44
disproportionate, the agency in possession of such property shall 45
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return the property to the defendant no more than fifteen (15) 46
days from the date of the hearing. 47
( * * *2) Except as otherwise provided in Section 41-29-176 48
and Section 41-29-107.1, an owner of property, other than a 49
controlled substance, raw material or paraphernalia, that has been 50
seized shall file an answer within thirty (30) days after the 51
completion of service of process. If an answer is not filed, the 52
court shall hear evidence that the property is subject to 53
forfeiture and forfeit the property to the Mississippi Bureau of 54
Narcotics or the local law enforcement agency. If an answer is 55
filed, a time for hearing on forfeiture shall be set within thirty 56
(30) days of filing the answer or at the succeeding term of court 57
if court would not be in progress within thirty (30) days after 58
filing the answer. Provided, however, that upon request by the 59
Bureau of Narcotics, the local law enforcement agency or the owner 60
of the property, the court may postpone * * * the forfeiture 61
hearing to a date past the time any criminal action is pending 62
against * * * the owner. 63
( * * *3) If the owner of the property has filed an answer 64
denying that the property is subject to forfeiture, then the 65
burden is on the petitioner to prove that the property is subject 66
to forfeiture. However, if an answer has not been filed by the 67
owner of the property, the petition for forfeiture may be 68
introduced into evidence and is prima facie evidence that the 69
property is subject to forfeiture. The standard of proof placed 70
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upon the petitioner in regard to property forfeited under the 71
provisions of this article shall be by a preponderance of the 72
evidence. 73
( * * *4) At the hearing any claimant of any right, title or 74
interest in the property may prove his lien, encumbrance, security 75
interest, other interest in the nature of a security interest, 76
mortgage or deed of trust to be bona fide and created without 77
knowledge or consent that the property was to be used so as to 78
cause the property to be subject to forfeiture. 79
( * * *5) If it is found that the property is subject to 80
forfeiture, then the judge shall forfeit the property to the 81
Mississippi Bureau of Narcotics or the local law enforcement 82
agency. However, if proof at the hearing discloses that the 83
interest of any bona fide lienholder, secured party, other person 84
holding an interest in the property in the nature of a security 85
interest, or any holder of a bona fide encumbrance, mortgage or 86
deed of trust is greater than or equal to the present value of the 87
property, the court shall order the property released to him. If 88
such interest is less than the present value of the property and 89
if the proof shows that the property is subject to forfeiture, the 90
court shall order the property forfeited to the Mississippi Bureau 91
of Narcotics or the local law enforcement agency. 92
( * * *6) Upon a petition filed in the name of the State of 93
Mississippi, the county or the municipality with the clerk of the 94
circuit court of the county in which the seizure of any controlled 95
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substance or raw material is made, the circuit court having 96
jurisdiction may order the controlled substance or raw material 97
summarily forfeited except when lawful possession and title can be 98
ascertained. If a person is found to have had lawful possession 99
and title prior to seizure, the court shall order the controlled 100
substance or raw material returned to the owner, if the owner so 101
desires. Upon a petition filed in the name of the State of 102
Mississippi, the county or the municipality with the clerk of the 103
circuit court of the county in which the seizure of any purported 104
paraphernalia is made, the circuit court having jurisdiction may 105
order such seized property summarily forfeited when the court has 106
determined the seized property to be paraphernalia as defined in 107
Section 41-29-105(v). 108
SECTION 2. Section 41-29-153, Mississippi Code of 1972, is 109
amended as follows: 110
41-29-153. (a) The following are subject to forfeiture: 111
(1) All controlled substances which have been 112
manufactured, distributed, dispensed or acquired in violation of 113
this article or in violation of Article 5 of this chapter or 114
Chapter 137 of this title; 115
(2) All raw materials, products and equipment of any 116
kind which are used, or intended for use, in manufacturing, 117
compounding, processing, delivering, importing, or exporting any 118
controlled substance in violation of this article or in violation 119
of Article 5 of this chapter or Chapter 137 of this title; 120
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(3) All property which is used, or intended for use, as 121
a container for property described in paragraph (1) or (2) of this 122
subsection; 123
(4) All conveyances, including aircraft, vehicles or 124
vessels, which are used, or intended for use, to transport, or in 125
any manner to facilitate the transportation, sale, receipt, 126
possession or concealment of property described in paragraph (1) 127
or (2) of this subsection, however: 128
A. No conveyance used by any person as a common 129
carrier in the transaction of business as a common carrier is 130
subject to forfeiture under this section unless it appears that 131
the owner or other person in charge of the conveyance is a 132
consenting party or privy to a violation of this article; 133
B. No conveyance is subject to forfeiture under 134
this section by reason of any act or omission proved by the owner 135
thereof to have been committed or omitted without his knowledge or 136
consent; if the confiscating authority has reason to believe that 137
the conveyance is a leased or rented conveyance, then the 138
confiscating authority shall notify the owner of the conveyance 139
within five (5) days of the confiscation; 140
C. A forfeiture of a conveyance encumbered by a 141
bona fide security interest is subject to the interest of the 142
secured party if he neither had knowledge of nor consented to the 143
act or omission; 144
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D. A conveyance is not subject to forfeiture for a 145
violation of Section 41-29-139(c)(2)(A) 1, 2 or (B)1 or (C)1, 2, 146
3; 147
(5) All money, deadly weapons, books, records, and 148
research products and materials, including formulas, microfilm, 149
tapes and data which are used, or intended for use, in violation 150
of this article or in violation of Article 5 of this chapter or 151
Chapter 137 of this title; 152
(6) All drug paraphernalia as defined in Section 153
41-29-105(v); and 154
(7) Everything of value, including real estate, 155
furnished, or intended to be furnished, in exchange for a 156
controlled substance in violation of this article, all proceeds 157
traceable to such an exchange, and all monies, negotiable 158
instruments, businesses or business investments, securities, and 159
other things of value used, or intended to be used, to facilitate 160
any violation of this article. All monies, coin and currency 161
found in close proximity to forfeitable controlled substances, to 162
forfeitable drug manufacturing or distributing paraphernalia, or 163
to forfeitable records of the importation, manufacture or 164
distribution of controlled substances are presumed to be 165
forfeitable under this paragraph; the burden of proof is upon 166
claimants of the property to rebut this presumption. 167
A. No property shall be forfeited under the 168
provisions of subsection (a)(7) of this section, to the extent of 169
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the interest of an owner, by reason of any act or omission 170
established by him to have been committed or omitted without his 171
knowledge or consent. 172
B. Neither personal property encumbered by a bona 173
fide security interest nor real estate encumbered by a bona fide 174
mortgage, deed of trust, lien or encumbrance shall be forfeited 175
under the provisions of subsection (a)(7) of this section, to the 176
extent of the interest of the secured party or the interest of the 177
mortgagee, holder of a deed of trust, lien or encumbrance by 178
reason of any act or omission established by him to have been 179
committed or omitted without his knowledge or consent. 180
(b) Property subject to forfeiture may be seized by the 181
bureau, local law enforcement officers, enforcement officers of 182
the Mississippi Department of Transportation, highway patrolmen, 183
the board, the State Board of Pharmacy, or law enforcement 184
officers of the Mississippi Department of Revenue or Mississippi 185
Department of Health acting with their duties in accordance with 186
the Mississippi Medical Cannabis Act, upon process issued by any 187
appropriate court having jurisdiction over the property. Seizure 188
without process may be made if: 189
(1) The seizure is incident to an arrest or a search 190
under a search warrant or an inspection under an administrative 191
inspection warrant; 192
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(2) The property subject to seizure has been the 193
subject of a prior judgment in favor of the state in a criminal 194
injunction or forfeiture proceeding based upon this article; 195
(3) The bureau, the board, local law enforcement 196
officers, enforcement officers of the Mississippi Department of 197
Transportation, or highway patrolmen, the State Board of Pharmacy, 198
or law enforcement officers of the Mississippi Department of 199
Revenue or Mississippi Department of Health acting with their 200
duties in accordance with the Mississippi Medical Cannabis Act, 201
have probable cause to believe that the property is directly or 202
indirectly dangerous to health or safety; 203
(4) The bureau, local law enforcement officers, 204
enforcement officers of the Mississippi Department of 205
Transportation, highway patrolmen, the board, the State Board of 206
Pharmacy, or law enforcement officers of the Mississippi 207
Department of Revenue or Mississippi Department of Health acting 208
with their duties in accordance with the Mississippi Medical 209
Cannabis Act, have probable cause to believe that the property was 210
used or is intended to be used in violation of this article; or 211
(5) The seizing law enforcement agency obtained a 212
seizure warrant as described in subsection (f) of this section. 213
(c) Controlled substances listed in Schedule I of Section 214
41-29-113 that are possessed, transferred, sold, or offered for 215
sale in violation of this article are contraband and shall be 216
seized and summarily forfeited to the state. Controlled 217
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substances listed in the said Schedule I, which are seized or come 218
into the possession of the state, the owners of which are unknown, 219
are contraband and shall be summarily forfeited to the state. 220
(d) Species of plants from which controlled substances in 221
Schedules I and II of Sections 41-29-113 and 41-29-115 may be 222
derived which have been planted or cultivated in violation of this 223
article, or of which the owners or cultivators are unknown, or 224
which are wild growths, may be seized and summarily forfeited to 225
the state. 226
(e) The failure, upon demand by the bureau and/or local law 227
enforcement officers, or their authorized agents, or highway 228
patrolmen designated by the bureau, the board, the State Board of 229
Pharmacy, or law enforcement officers of the Mississippi 230
Department of Revenue or Mississippi Department of Health acting 231
with their duties in accordance with the Mississippi Medical 232
Cannabis Act, of the person in occupancy or in control of land or 233
premises upon which the species of plants are growing or being 234
stored, to produce an appropriate registration, or proof that he 235
is the holder thereof, constitutes authority for the seizure and 236
forfeiture of the plants. 237
(f) (1) When any property is seized under the Uniform 238
Controlled Substances Law, except as otherwise provided in 239
paragraph (3) of this subsection, by a law enforcement agency with 240
the intent to be forfeited, the law enforcement agency that seized 241
the property shall obtain a seizure warrant from the county or 242
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circuit court having jurisdiction of such property within 243
seventy-two (72) hours of any seizure, excluding weekends and 244
holidays. Any law enforcement agency that fails to obtain a 245
seizure warrant within seventy-two (72) hours as required by this 246
section shall notify the person from whom the property was seized 247
that it will not be forfeited and shall provide written 248
instructions advising the person how to retrieve the seized 249
property. 250
(2) A circuit or county judge having jurisdiction of 251
any property other than a controlled substance, raw material or 252
paraphernalia, may issue a seizure warrant upon proper oath or 253
affirmation from a law enforcement agency. The law enforcement 254
agency that is seeking a seizure warrant shall provide the 255
following information to the judge: 256
A. Probable cause to believe that the property was 257
used or intended to be used in violation of this article; 258
B. The name of the person from whom the property 259
was seized; and 260
C. A detailed description of the property which is 261
seized, including the value of the property. 262
(3) This subsection does not apply to seizures 263
performed pursuant to Section 41-29-157 when property is 264
specifically set forth in a search and seizure warrant. 265
SECTION 3. Section 41-29-176.1, Mississippi Code of 1972, is 266
amended as follows: 267
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41-29-176.1. The seizing law enforcement agency shall within 268
thirty (30) days of a seizure, request either the district 269
attorney of the county in which property is seized or the 270
Mississippi Bureau of Narcotics to prosecute any cases involving 271
seized property. No one other than the district attorney of the 272
county in which the seizure occurred or an attorney from the 273
Mississippi Bureau of Narcotics shall have authority to prosecute 274
the forfeiture of the seized property. If the district attorney 275
and the Mississippi Bureau of Narcotics decline to prosecute the 276
forfeiture of the seized property, the seizing law enforcement 277
agency shall notify the person from whom the property was seized 278
that the property will not be forfeited, within * * * fifteen (15) 279
days of receiving the notice not to prosecute, and shall provide 280
written instructions advising the person how to retrieve the 281
seized property. If the district attorney and/or the Mississippi 282
Bureau of Narcotics decide to prosecute, the person shall have the 283
rights provided in Section 41-29-179. 284
SECTION 4. Section 41-29-177, Mississippi Code of 1972, is 285
amended as follows: 286
41-29-177. (1) Except as otherwise provided in Section 287
41-29-176, Mississippi Code of 1972, and in Section 41-29-107.1, 288
when any property, other than a controlled substance, raw material 289
or paraphernalia, is seized under the Uniform Controlled 290
Substances Law, proceedings under this section shall be instituted 291
within thirty (30) days from the date of seizure or the subject 292
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property shall be immediately returned to the party from whom 293
seized. 294
(2) A petition for forfeiture shall be filed by the district 295
attorney or his or her designee, or an attorney for the bureau, as 296
applicable, in the name of the State of Mississippi, the county or 297
the municipality and may be filed in the county in which the 298
seizure is made, the county in which the criminal prosecution is 299
brought or the county in which the owner of the seized property is 300
found. Forfeiture proceedings may be brought in the circuit court 301
or the county court if a county court exists in the county and the 302
value of the seized property is within the jurisdictional limits 303
of the county court as set forth in Section 9-9-21, Mississippi 304
Code of 1972. A copy of such petition shall be served upon the 305
following persons by service of process in the same manner as in 306
civil cases: 307
(a) The owner of the property, if address is known; 308
(b) Any secured party who has registered his lien or 309
filed a financing statement as provided by law, if the identity of 310
such secured party can be ascertained by the Bureau of Narcotics 311
or the local law enforcement agency by making a good faith effort 312
to ascertain the identity of such secured party as described in 313
subsections (3), (4), (5), (6) and (7) of this section; 314
(c) Any other bona fide lienholder or secured party or 315
other person holding an interest in the property in the nature of 316
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a security interest of whom the Mississippi Bureau of Narcotics or 317
the local law enforcement agency has actual knowledge; 318
(d) Any holder of a mortgage, deed of trust, lien or 319
encumbrance of record, if the property is real estate, by making a 320
good faith inquiry as described in subsection (8) of this section; 321
and 322
(e) Any person in possession of property subject to 323
forfeiture at the time that it was seized. 324
(3) If the property is a motor vehicle susceptible of 325
titling under the Mississippi Motor Vehicle Title Law and if there 326
is any reasonable cause to believe that the vehicle has been 327
titled, the Bureau of Narcotics or the local law enforcement 328
agency shall make inquiry of the Department of Revenue as to what 329
the records of the Department of Revenue show as to who is the 330
record owner of the vehicle and who, if anyone, holds any lien or 331
security interest which affects the vehicle. 332
(4) If the property is a motor vehicle and is not titled in 333
the State of Mississippi, then the Bureau of Narcotics or the 334
local law enforcement agency shall attempt to ascertain the name 335
and address of the person in whose name the vehicle is licensed, 336
and if the vehicle is licensed in a state which has in effect a 337
certificate of title law, the bureau or the local law enforcement 338
agency shall make inquiry of the appropriate agency of that state 339
as to what the records of the agency show as to who is the record 340
owner of the vehicle and who, if anyone, holds any lien, security 341
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interest or other instrument in the nature of a security device 342
which affects the vehicle. 343
(5) If the property is of a nature that a financing 344
statement is required by the laws of this state to be filed to 345
perfect a security interest affecting the property and if there is 346
any reasonable cause to believe that a financing statement 347
covering the security interest has been filed under the laws of 348
this state, the Bureau of Narcotics or the local law enforcement 349
agency shall make inquiry of the appropriate office designated in 350
Section 75-9-501, Mississippi Code of 1972, as to what the records 351
show as to who is the record owner of the property and who, if 352
anyone, has filed a financing statement affecting the property. 353
(6) If the property is an aircraft or part thereof and if 354
there is any reasonable cause to believe that an instrument in the 355
nature of a security device affects the property, then the Bureau 356
of Narcotics or the local law enforcement agency shall make 357
inquiry of the Mississippi Department of Transportation as to what 358
the records of the Federal Aviation Administration show as to who 359
is the record owner of the property and who, if anyone, holds an 360
instrument in the nature of a security device which affects the 361
property. 362
(7) In the case of all other personal property subject to 363
forfeiture, if there is any reasonable cause to believe that an 364
instrument in the nature of a security device affects the 365
property, then the Bureau of Narcotics or the local law 366
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enforcement agency shall make a good faith inquiry to identify the 367
holder of any such instrument. 368
(8) If the property is real estate, the Bureau of Narcotics 369
or the local law enforcement agency shall make inquiry of the 370
chancery clerk of the county wherein the property is located to 371
determine who is the owner of record and who, if anyone, is a 372
holder of a bona fide mortgage, deed of trust, lien or 373
encumbrance. 374
(9) In the event the answer to an inquiry states that the 375
record owner of the property is any person other than the person 376
who was in possession of it when it was seized, or states that any 377
person holds any lien, encumbrance, security interest, other 378
interest in the nature of a security interest, mortgage or deed of 379
trust which affects the property, the Bureau of Narcotics or the 380
local law enforcement agency shall cause any record owner and also 381
any lienholder, secured party, other person who holds an interest 382
in the property in the nature of a security interest, or holder of 383
an encumbrance, mortgage or deed of trust which affects the 384
property to be named in the petition of forfeiture and to be 385
served with process in the same manner as in civil cases. 386
(10) If the owner of the property cannot be found and served 387
with a copy of the petition of forfeiture, or if no person was in 388
possession of the property subject to forfeiture at the time that 389
it was seized and the owner of the property is unknown, the Bureau 390
of Narcotics or the local law enforcement agency shall file with 391
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ST: Asset forfeiture; require hearing to
challenge.
the clerk of the court in which the proceeding is pending an 392
affidavit to such effect, whereupon the clerk of the court shall 393
publish notice of the hearing addressed to "the Unknown Owner of 394
_______________," filling in the blank space with a reasonably 395
detailed description of the property subject to forfeiture. 396
Service by publication shall contain the other requisites 397
prescribed in Section 11-33-41, and shall be served as provided in 398
Section 11-33-37, Mississippi Code of 1972, for publication of 399
notice for attachments at law. 400
(11) No proceedings instituted pursuant to the provisions of 401
this article shall proceed to hearing unless the judge conducting 402
the hearing is satisfied that this section and Section 41-29-107.1 403
has been complied with. Any answer received from an inquiry 404
required by subsections (3) through (8) of this section shall be 405
introduced into evidence at the hearing. 406
(12) The owner of any property that is subject to forfeiture 407
shall have the right to a hearing as provided in Section 408
41-29-179. 409
SECTION 5. This act shall take effect and be in force from 410
and after July 1, 2026. 411