Alexander v. State

• Decision Date: 31 January 1991
• Docket Number: No. 13-90-059-CV,13-90-059-CV
• Citation: 803 S.W.2d 852
• Parties: McKinley ALEXANDER and Leadlow, Inc., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 852

803 S.W.2d 852

McKinley ALEXANDER and Leadlow, Inc., Appellants, v. The STATE of Texas, Appellee.

No. 13-90-059-CV.

Court of Appeals of Texas,

Corpus Christi.

Jan. 31, 1991.

Rehearing Overruled Feb. 28, 1991.

E. Dale Robertson, Brownsville, for appellants.

Luis V. Saenz, County Crim. Dist. Atty., John A. Olson, and Oscar Ponce, Asst. County Attys., Brownsville, for appellee.

Before BENAVIDES, KENNEDY and DORSEY, JJ.

OPINION

BENAVIDES, Justice.

McKinley Alexander and Leadlow, Inc. appeal the forfeiture of a tractor truck and semi-trailer. By sixteen points of error, appellants challenge jurisdiction, the admission of certain testimony, and some of the trial court's findings. We reverse the trial court's judgment.

Pursuant to an informant's tip, Harlingen law enforcement officers discovered 1,798 pounds of marihuana in a 1982 Utility semi-trailer which was attached to a 1982 International tractor truck. Three individuals, including appellant Alexander's son, were arrested in connection with the seizure of the marihuana. The State instituted forfeiture proceedings, and after a bench trial, the court ordered forfeiture. According to the findings of fact entered by the trial court, Alexander was the owner of the truck, and Leadlow was the owner of the trailer. In three separate findings, the trial court also found that Alexander gave "implied consent" for the truck to be used to transport the marihuana and that Leadlow gave "implied consent" and "consent" for the trailer to be used to transport the marihuana.

We first address appellants' sixteenth point of error in which they contend that the trial court erred in overruling their plea in bar that the State's claim was barred for failure to obtain a trial setting within thirty days of the filing of appellants' answer. Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 5.07(a) (Vernon Supp.1989) (repealed effective September 1, 1989), provided, in part: "If an answer is filed, a time for hearing on forfeiture shall be set within 30 days of filing of the answer and notice of hearing shall be sent to all parties." This provision is mandatory, not discretionary; the State must secure a setting for the hearing within thirty days. See Lopez v. State, 797 S.W.2d 272, 273 (Tex.App.--Corpus Christi 1990, writ denied); State v. One (1) 1986 Nissan Auto., 792 S.W.2d 577, 578-79 (Tex.App.--El Paso 1990, no writ). This section also requires that the answer filed be verified. Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 5.07(a).

The State's original petition and notice of seizure and intended forfeiture was filed on December 20, 1988. Appellants' original answer was filed March 13, 1989. Appellants' answer, however, was not verified. Subsequently, on July 31, 1989, the State filed its first amended petition. At this time, the State also specially excepted to appellants' answer on the grounds that it was not verified. The trial court granted the special exception, ruling that appellants' answer was not proper, and gave them thirty days to file a proper answer. On September 26, 1989, appellants filed their amended answer which was verified. Then, on October 20, 1989, the State filed its motion for trial setting. On October 24, 1989, the trial court set the hearing for November 30, 1989.

Appellants argue that the thirty day limit in which the State is to request a trial setting started to run on March 13, 1989. We disagree. The statute has been construed strictly to require the hearing be set within thirty days of the filing of the answer. It follows that the statute be construed strictly to require that the answer from which the thirty days runs be the answer required by the statute, a verified answer. We find no sense in a construction that requires the State to secure a setting for a hearing when the forfeiture issue has not been joined by a verified answer as the statute requires. The right to an expedited proceeding is triggered by the filing of a verified answer. Once appellants filed their verified answer, the State had thirty days in which to obtain a setting for the hearing. The State met this requirement on October 24, 1989, when the trial court set the hearing. Hence, the State's claim was not barred. Appellants' sixteenth point of error is overruled.

By their first and second points of error, appellants contend that the trial court erred in entering judgment based on findings that Alexander and Leadlow gave implied consent that the truck and trailer be used to transport marihuana because Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 5.03 (Vernon Supp.1989) (repealed effective September 1, 1989) did not provide for implied consent as a basis for forfeiture. Section 5.03(a)(5) provides for the forfeiture of

any ... vehicles ... that [are] used or intended for use to transport or in any manner facilitate the transport, sale, receipt, possession, concealment, or delivery or any property described in paragraph (1), (2), or (3) of this subsection, provided that no conveyance used by any other person shall be forfeited under this subchapter unless the owner or other person in charge of the conveyance is a consenting party or privy to an offense under this act.... (emphasis ours).

Appellants argue that this statute is unambiguous and certain and that in order for forfeiture to be permitted, the evidence must show that the owner consented to the unlawful use of the vehicle or was privy to the offense. They contend that the trial court's finding of implied consent will not provide a basis for forfeiture. Appellants point out that § 5.03(a)(5) does not contain the term "implied consent" and that the trial court did not explain what it meant by implied consent. The State contends that the phrase "privy to an offense" is equated with implied consent and supports the judgment of forfeiture. It relies on the definitions of "privy" found in Black's Law Dictionary and Barron's Law Dictionary.

When the language of a statute is unambiguous, we must seek the legislative intent as found in the plain and common meaning of the words and terms used. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990). Similarly, in construing a statute, if the Legislature does not define a term, its ordinary meaning will be applied. Hopkins v. Spring Indep. School Dist., 736 S.W.2d 617, 619 (Tex.1987); see also TEX.GOV'T CODE ANN. § 312.002(a) (Vernon 1988). None of the words in question is defined in the statute. To determine the ordinary meaning of the words we will consult generally accepted sources of the common and legal definitions of the words in question. Yates Ford, Inc. v. Benavides, 684 S.W.2d 736, 739 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.).

Black's Law Dictionary designates "privy" as a noun, and defines it as a person who is in privity with another. BLACK'S LAW DICTIONARY 1080 (5th ed.1979). "Privity" is defined as private knowledge; joint knowledge with another of a private concern; cognizance implying a consent or concurrence. BLACK'S LAW DICTIONARY 1079 (5th ed.1979). Webster's New Twentieth Century Dictionary Unabridged designates "privy" as an adjective, and defines it as privately knowing; admitted to the participation of knowledge with another of a secret transaction. WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY UNABRIDGED 1432 (2d ed.1980). Webster's New Collegiate Dictionary designates "privy" as an adjective, and defines it as admitted as one sharing in a secret, and gives the example of one who is privy to a conspiracy. WEBSTER'S NEW COLLEGIATE DICTIONARY 909 (1981).

Based on these definitions, we conclude that the phrase "privy to an offense" means admitted as one sharing such knowledge with another regarding an offense under this statute to the extent that consent to use the property in question could be implied. In other words, this phrase relates directly to an owner's knowledge of an offense and establishes the type of knowledge required. The knowledge must be of the offense and substantial enough that the use of the property in carrying out the offense is impliedly consensual. Hence, "implied consent" could relate to "privy to an offense" only to the extent that it is an element of the test to determine whether an owner had knowledge sufficient to support a forfeiture. That the use of the vehicle was impliedly consensual is not sufficient in itself to support forfeiture under "privy to an offense."

The State also argues that implied consent is consent which is shown by circumstantial evidence. In support of this contention, the State cites McDorman v. State, 757 S.W.2d 905 (Tex.App.--Eastland 1988, writ denied). McDorman was also a forfeiture case, and at the time it was appealed, the forfeiture statute precluded forfeiture under the chapter by reason of any act established by the owner to have been committed without his knowledge or consent. McDorman, 757 S.W.2d at 907. Although the Court was aware that the forfeiture statute was to be construed strictly, it stated that "[i]f consent is implicitly shown by circumstantial evidence, then 'implied consent' is sufficient under the statute." Id. Instead of applying Texas rules of statutory construction to justify this conclusion, the court relied on a Florida court of appeals opinion in a forfeiture case in which the Florida court determined that "knowledge" included expressed and implied knowledge. Id. We find McDorman neither instructive nor controlling regarding the position taken by the State that implied consent is consent which is shown by circumstantial evidence.

"Implied consent" is "[t]hat manifested by signs, actions or facts, or by inaction or silence, which raise a presumption that the consent has been given." BLACK'S LAW DICTIONARY 276 (5th ed.1979) (emphasis ours). As an example of implied consent, Black's Law Dictionary refers to those corporations which do business in a state as impliedly consenting to the state's jurisdiction even though not incorporated in that state. Id. at 276-77. It also...