concurring.
I join the opinion of the Court and write separately only to supplement the well-written majority opinion.
A civil forfeiture under Texas Code of Criminal Procedure Article 59.02 potentially implicates two provisions of the United States Constitution: the Excessive Fines Clause of the Eighth Amendment and the Double Jeopardy Clause of the Fifth Amendment. Additionally, it must be determined whether the property to be forfeited is proceeds from criminal activity or the instrumentality of criminal activity, as property not falling under one of those two categories enjoys greater constitutional protection.
I. The Excessive Fines Clause and Civil Forfeitures
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const, amend. VIII (emphasis added). The Supreme Court, in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), addressed whether the Excessive Fines Clause applied to forfeitures under 21 U.S.C. § 881(a)(4) and (a)(7), the federal Controlled Substances Act. In Austin, the defendant pled guilty in state court to possession of cocaine with intent to distribute and was sentenced to seven years imprisonment. Subsequently the federal government filed an in rem action in federal district court seeking forfeiture of defendant’s auto body shop and mobile home. Evidence was introduced defendant sold two grams of cocaine to a Keith Engebretson at his auto body shop. A subsequent search of defendant’s mobile home uncovered small amounts of marihuana and cocaine, a gun, drug paraphernalia and $4700 in cash. Summary judgment for the government was granted and the Court of Appeals affirmed. 964 F.2d 814 (8th Cir.1992).
In reversing the judgment of the Court of Appeals, the Supreme Court held that the Excessive Fines Clause does apply to civil forfeitures under 21 U.S.C. § 881(a)(4) and (a)(7). The Court further held that such forfeitures are properly considered as “punishment,” noting the legislative history which characterizes forfeitures of real property as “a powerful deterrent,” the inclusion of an innocent owner defense and the language of the statute itself which states property is forfeitable only if tied directly to the commission of drug offenses. Austin, 509 U.S. at 620, 113 S.Ct. at 2811. “We therefore conclude that forfeiture under these provisions constitutes ‘payment to a sovereign as punishment for some offense,’ Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 2915, 106 L.Ed.2d 219 (1989), and, as such, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.” Austin, 509 U.S. at 621-623, 113 S.Ct. at 2812.
The Court reversed and remanded the cause to the court of Appeals to determine if the forfeiture violated the Excessive Fines Clause. The Court did not establish any guidelines to be used in the determination of whether a particular in rem forfeiture is excessive. Justice Scalia’s concurring opin*311ion states that the sole measure of an in rem forfeiture’s excessiveness is the relationship between the forfeited property and the offense. Austin, 509 U.S. at 625-627, 113 S.Ct. at 2814, 2815.
It does seem clear, however, that forfeiture of a $30,000 vehicle as result of an individual being convicted of a Class B misdemeanor of possession of marihuana because a single marihuana cigarette was found in the vehicle’s ashtray would be excessive and barred as such by the Excessive Fines Clause. A different result may well be indicated if that same vehicle was used to transport significant amounts of controlled substances. Such a proportionality review is to be conducted by the trial court and is, on appellate review, subject to an abuse of discretion standard.
However, Austin is not relevant to the present case. Chapter 59 forfeitures are a limited category of forfeitures, as a forfeiture under Chapter 59 may occur only if the State proves the property to be forfeited, by a preponderance of the evidence, to be contraband, i.e., proceeds of criminal activity or which was used to facilitate commission of crimes. Such forfeitures thus should be analyzed using the standards established by the Supreme Court in U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).1 In Halper, the Supreme Court addressed whether a civil sanction may be considered as punishment, and thereby implicate the Fifth Amendment’s double jeopardy clause so as to bar a subsequent criminal prosecution of the person whose property has been forfeited. As appellant in the present case alleges a double jeopardy claim, Austin, supra, which addressed only the Eighth Amendment implications of civil forfeitures, is not on point, as appellant, in the present case, did not allege an Eighth Amendment claim. The court of appeals erred in relying on Austin in the present case. The correct standard of review is found in Halper, supra.
II. The Double Jeopardy Clause and Civil Forfeitures
“... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...” U.S. Const, amend. V. In U.S. v. Halper, supra, Halper was convicted of filing 65 Medicare false claims, and was sentenced to two years’ imprisonment and a fine of $5,000. The evidence showed the total loss to the government was $585. The cost of prosecuting Halper was approximately $16,000.
The government then brought a civil action under the False Claims Act, 31 U.S.C. §§ 3729-3731, under which Halper was subject to a penalty of $2000 for each false claim, for a total of $130,000. The district court concluded, in light of Halper’s previous criminal punishment, an additional penalty this large would violate the Double Jeopardy Clause’s prohibition on multiple criminal punishments for the same offense.
The Supreme Court unanimously held that the “government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the government whole.” Halper, 490 U.S. at 451, 109 S.Ct. at 1903.
The Court acknowledged that a civil sanction following a criminal conviction that compensates the government for its costs of prosecution and actual damages is remedial in nature and is not punishment. Such a civil sanction does not implicate the Double Jeopardy Clause. “We therefore hold that under the Double Jeopardy Clause a defendant who has already been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not be characterized as remedial, but only as a deterrent or retribution. .. .Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the government for its loss, but rather appears to qualify as ‘punishment’ in the plain meaning of the word, then the defendant is entitled to an accounting of the *312government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment. We must leave to the trial court the discretion to determine on the basis of such an accounting the size of the civil sanction the government may receive without crossing the line between remedy and punishment.” Halper, 490 U.S. at 450, 109 S.Ct. at 1902.
Consistent with Halper, it is clear that where the State subsequently files a civil sanction, or, in my opinion, a civil forfeiture, action against an individual against whom it has already obtained a criminal conviction, it must demonstrate to the trial court that the amount of the forfeiture or sanction it seeks is “remedial,” i.e., the amount is rationally related to the costs of prosecution and damages it sustained as a result of the individual’s criminal conduct, and in the case of a civil forfeiture, the property sought to be forfeited is the proceeds of criminal activity or used in the commission of a crime, i.e., “contraband.” Any forfeiture or sanction in excess of such an amount or that is not “contraband” is punishment and is barred by the Double Jeopardy Clause.2
III. The Present Case
In the present case, appellant was charged with possession of a controlled substance with intent to deliver. The State then initiated forfeiture proceedings under Chapter 59, alleging that cash and other property seized from appellant at the time of his arrest was contraband as defined in Article 59.01 and thereby subject to forfeiture. Appellant and the State entered into an agreement by which he agreed to forfeit $3823 and a cellular phone. The agreement stipulated that an additional $1500 and two weapons were “not subject to forfeiture.” Appellant contends the Double Jeopardy Clause bars prosecution of the pending drug charge because the forfeiture proceeding constitutes “punishment.”
The majority correctly notes that Chapter 59 requires the State to allege and prove that property is contraband before it may be forfeited. To be contraband, the property must be proven to be the proceeds from or the instruments of a criminal act enumerated in Article 59.01(2)(A) and (2)(B). In the present case, the State alleged the cash, pistols and cellular phone seized from appellant were contraband, i.e., either the proceeds from or the instruments of criminal activity. Appellant never contested the State’s allegation the property was contraband and, in effect, agreed with the State’s allegation by agreeing to the forfeiture of $3823 and the cellular phone. The court of appeals erred in that it never determined if the property was contraband.
Using the standards established in Halper, forfeitures of property proven to be contraband as that term is defined in Chapter 59 are always remedial. The court of appeals ruling, in effect, could result in the State, after having obtained a conviction against a defendant for aggravated robbery, being barred on double jeopardy grounds from bringing a subsequent civil forfeiture action to recover the robbery proceeds. In effect, Chapter 59 merely allows the State to prevent individuals from retaining property proven to have been unlawfully used or obtained, that is, contraband. Denying convicted criminals of the retention of the proceeds of their criminal activity or of property used to facilitate their criminal activity via civil forfeitures of such property is remedial as such property was not legitimately obtained or used. Therefore, forfeitures of property proven to be contraband, as that term is defined in Chapter 59, are not punishment and the Double Jeopardy Clause’s protections are not implicated.
The majority cites U.S. v. Tilley, 18 F.3d 295 (5th Cir.1994) and U.S. v. McCaslin, 959 F.2d 786 (9th Cir.), cert. denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992) in support of its holding that Chapter 59 forfeitures of contraband are not punishment for purposes of the Double Jeopardy Clause. In Tilley, supra, the defendants were the subject of civil forfeiture proceedings commenced in 1991. In 1992, they were indicted for various drug offenses committed between 1986 and 1991. In February of 1993, the *313defendants agreed, in writing, to forfeit approximately $650,000 in cash and property to the government. In April of 1993, the defendants moved for dismissal of the pending drug charges, alleging, as a result of the prior civil forfeiture proceedings, they were being subjected to multiple punishments for the same crimes in violation of the Double Jeopardy Clause.
The Fifth Circuit noted that in Halper, supra, the $130,000 sanction did not represent the proceeds of the crime for which Halper was convicted, whereas in Tilley, supra, the $650,000 forfeiture represented only a portion of the revenue derived from defendants’ large-scale drug operation. The court stated “under Halper we must classify the civil forfeiture of the unlawful proceeds of illegal drug sales under § 881(a)(6) as a punishment under the Double Jeopardy Clause if, in this particular case, the amount of the proceeds forfeited was so great that it bore no rational relation to the costs incurred by the government and society resulting from the defendant’s criminal conduct.” Tilley, supra, at 299 (emphasis added).
The Fifth Circuit compared, correctly, proceeds of drug sales to the proceeds derived from a bank robbery and their forfeiture “merely places that party in the lawfully-protected financial status quo that he enjoyed prior to launching his illegal scheme... .The possessor of proceeds from illegal drug sales never invested honest labor or other lawfully derived property to obtain the subsequently forfeited proceeds. Consequently, he has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such proceeds because they have their very genesis in illegal activity.” Tilley, supra, at 300. See also, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016-1018, 112 S.Ct. 2886, 2894, 120 L.Ed.2d 798 (1992); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626, 109 S.Ct. 2646, 2652-53, 105 L.Ed.2d 528 (1989). Because an individual never was legally entitled to possess property derived from the illegal sale of drugs or any other criminal activity, the Double Jeopardy Clause is not implicated when the State, pursuant to Chapter 59, successfully institutes a forfeiture action against an individual alleging property owned by that individual is the proceeds of criminal activity enumerated in Chapter 59 and proves, by a preponderance of the evidence, the allegation is true. Accordingly, the State may subsequently prosecute said individual criminally.
Halper also applies where the State institutes a forfeiture action against an individual under Chapter 59 alleging property of the individual was the instrumentality for the commission of a crime. As the Ninth Circuit held in United States v. McCaslin, 959 F.2d 786 (9th Cir.), cert. denied, 506 U.S. 942, 113 S.Ct. 382, 121 L.Ed.2d 292 (1992), double jeopardy has no application to the forfeiture of property which is proven to have been the instrumentality of a crime. In McCaslin, supra, the government sought forfeiture of real property of the defendant which he had used to grow marihuana.3 Subsequently, the government indicted the defendant for growing marihuana. The district court denied defendant’s motion to dismiss the indictment on grounds of double jeopardy and he was convicted. The Ninth Circuit affirmed, holding “there is no necessary relation between the value of the property forfeited and the loss to the government, nor is there any necessary proportion between the value of the property forfeited and the criminal use of the property... .Double jeopardy has no application.” McCaslin, supra, at 788. See also, United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362-365, 104 S.Ct. 1099, 1105-1106, 79 L.Ed.2d 361 (1984); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683-685, 94 S.Ct. 2080, 2092, 40 L.Ed.2d 452 (1974); United States v. A Parcel of Land with a Building Thereon, 884 F.2d 41 (1st Cir.1989).
Conclusion
The Double Jeopardy Clause of the Fifth Amendment has no application to a civil for*314feiture of property proven to have been an instrumentality of crime based on the holdings in McCaslin, supra, and the other cases cited in the preceding paragraph. Accordingly, an individual who forfeits property pursuant to Chapter 59, proven to be an instrumentality of crime may subsequently be prosecuted for crimes related to the use of that property and the subsequent criminal proceeding is not barred by double jeopardy.
The Double Jeopardy Clause also is not implicated where an individual forfeits property, pursuant to Chapter 59, proven to be the proceeds of criminal activity, and then is subsequently prosecuted for crimes related to acquisition of that property. Appellant, in the present case, did not contest the forfeiture of the cash and the phone; indeed, appellant agreed to the forfeiture. Thus, the State’s allegation that said cash and phone were contraband was never disputed by appellant.4
With these comments, I join the opinion of the Court.5
. This is not to say, however, that Chapter 59 forfeitures, in some instances, may not violate the Excessive Fines Clause.
. We note that in Halper, unlike the present case, there was no forfeiture of property alleged to be either proceeds of criminal activity or instrumen-talities of criminal activity.
. A forfeiture of property alleged and proven to be the instrumentality of a crime may, in some cases, violate the Excessive Fines Clause of the Eighth Amendment. For example, an Excessive Fines Clause violation may be present where the govemment seeks forfeiture of a million dollar home as an instrumentality of crime because it finds one marihuana plant growing in the back yard. However, in the present case, appellant did not raise an Eighth Amendment claim.
. Although not raised by the parties in their briefs, it is an open question as to whether, by entering into the agreed judgment of forfeiture dated June 21, 1993, appellant waived his right to claim that the Double Jeopardy Clause bars any subsequent criminal proceeding.
. The Supreme Court, in United States v. Ursery, 95-345 (June 24, 1995) held that in rem forfeitures do not implicate the Double Jeopardy Clause of the United States Constitution as they are not "punishment.” Left open, however, is the possibility that an in rem forfeiture may, in some instances, run afoul of the Excessive Fines Clause of the Eighth Amendment. The holding in Ursery, in my opinion, defeats appellant's double jeopardy claim in the present case.