Ex parte Ward

• Decision Date: 21 January 1998
• Docket Number: Nos. 420-96,421-96,s. 420-96
• Citation: 964 S.W.2d 617
• Parties: Ex parte Curtis Ray WARD.
• Court: Texas Court of Criminal Appeals

Page 617

964 S.W.2d 617

Ex parte Curtis Ray WARD.

Nos. 420-96, 421-96.

Court of Criminal Appeals of Texas En Banc.

Jan. 21, 1998.

Robert G. Turner, Houston, for appellant.

Steve Greene, Asst. Dist. Atty., Anahuac, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

HOLLAND, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and MANSFIELD, KELLER and PRICE, Judges, joined.

Appellant was indicted for possession of more than fifty but less than two hundred pounds of marihuana and, in a separate indictment, possession of marihuana on which no tax had been paid. TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 1992); TEX. TAX CODE ANN. § 159.201 (Vernon 1992). Prior to indictment, the Comptroller of Public Accounts sent appellant a notice of taxes due. Appellant made a $250 payment, and then filed a plea in bar and a pre-trial application for writ of habeas corpus contending the Double Jeopardy Clause of the United States Constitution barred his prosecution for aggravated possession. The trial court denied relief. On appeal, the court of appeals affirmed the decision of the trial court. Ward v. State, 870 S.W.2d 659 (Tex.App.--Houston [1st Dist.] 1994, pet ref'd) ("Ward I"). After appellant's petition for discretionary review was refused by this Court, the United States Supreme Court vacated the judgment of the Court of Appeals and remanded the case for further consideration in light of its decision in Montana Dept. of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). On remand, the Court of Appeals reversed its original holding and granted a writ of habeas corpus. Ward v. State, 915 S.W.2d 941 (Tex.App.--Houston [1st Dist.] 1996) ("Ward II"). This Court granted the State's petition for discretionary review to determine: (1) whether jeopardy attaches when the Texas tax on controlled substances is assessed but no judicial action has been taken to enforce the tax assessment; and (2) whether possession of marihuana and the tax on controlled substances are the same offense for double jeopardy purposes.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

A. Factual Background

On February 13, 1992, Chambers County authorities arrested appellant during a traffic stop after discovering seventy-eight pounds of marihuana in a locked tool box. Officers also seized $2,165 in cash and a radar detector. The State filed a motion for summary judgment seeking forfeiture of the cash and radar detector seized. Appellant did not contest the motion, and in July 1992, the trial court granted the motion and ordered the $2,165 and radar detector forfeited to the State of Texas.

The State indicted appellant for possession of more than fifty but less than two hundred pounds of marihuana, and possession of marihuana on which no tax had been paid. After indictment, the Comptroller of Public Accounts sent appellant a notice informing him that he owed $109,546.50 in taxes, together with a $10,954.65 penalty for failure to pay tax on the marihuana. See TEX. TAX CODE ANN. § 159.101 (Vernon 1992). ¹ On March 18, 1992, the Comptroller issued a state tax lien in the amount of $120,501.15. The lien was properly filed pursuant to § 113.001 and § 113.002. In a writ of habeas corpus appellant asserted the civil forfeitures and tax assessment were punitive in nature and a subsequent criminal prosecution for the underlying felony possession charge placed him in danger of a second punishment for the same offense in violation of the Double Jeopardy Clause. The trial court denied appellant's writ of habeas corpus. Appellant sought an appeal from the trial court's decision.

B. Ward I

On appeal, the First District Court of Appeals initially held that the "assessment" of the tax was not "punishment" for jeopardy purposes and further prosecution would not violate the Double Jeopardy Clause. Ward I, 870 S.W.2d at 662. The court cited two reasons for its holding. First, the court emphasized that appellant had only been "assessed" the tax. The State had not sought a judgment against appellant, and there had been no adjudication by a court. The court of appeals explained appellant's reliance on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) was misplaced, because Halper contemplated a criminal prosecution and a civil action resulting in a judgment. Ward I, 870 S.W.2d at 662. Secondly, the appellate court noted the absence of appellant's payment of the tax "in full or substantial part" and reasoned that appellant's $250 payment on the total assessment was so insignificant (1/480) as to not constitute a 'payment' on the tax due. The appellate court recognized that because appellant was not "punished" the trial court's denial of relief was proper.

This Court refused appellant's petition for discretionary review. Appellant then filed a writ of certiorari to the United States Supreme Court. The United States Supreme Court vacated the judgment in Ward I and remanded the case for further consideration in light of its decision in Kurth Ranch. Ward v. Texas, 513 U.S. 1011, 115 S.Ct. 567, 130 L.Ed.2d 485 (1994).

C. Ward II

Without addressing the authority cited in Ward I, the court of appeals reversed its original decision. ² Ward II, 915 S.W.2d at 947. In Ward II the court of appeals began by examining the Texas tax. The appellate court concluded that because the Texas tax was similar to the Montana tax in Kurth Ranch in many respects, the Texas tax on controlled substance tax was a "punishment for purposes of double jeopardy considerations". The appellate court determined that it was the actual "assessment" of the tax which constituted 'punishment.' Id. at 946. To support this conclusion, the court of appeals quoted the Supreme Court's holding in Kurth Ranch that Montana's effort to collect a tax on the possession of drugs was the "functional equivalent of a successive criminal prosecution for the same offense." The Ward II court concluded that "based on this language, the assessment of a tax on the possession of marihuana in this case precludes subsequent prosecution for that offense."

By way of a footnote, the appellate court added it was irrelevant that the assessment preceded the criminal prosecution, quoting Justice Scalia's dissenting opinion in Kurth Ranch, wherein he observed, "[i]f there is a constitutional prohibition on multiple punishments, the order of punishment cannot possibly make any difference." Ward II, 915 S.W.2d at 947 n. 8 (quoting Kurth Ranch, 511 U.S. at 804, 114 S.Ct. at 1958, 128 L.Ed.2d at 794). Based on this conclusion, the appellate court held jeopardy barred appellant's criminal prosecution for possession the moment the tax on possession was "assessed." Recognizing appellant was entitled to relief under Kurth Ranch, the court of appeals reversed the trial court's decision with instructions to dismiss the pending criminal indictments. See Ward II, 915 S.W.2d at 947. The State sought review of this decision. This Court now reverses the judgment of the court of appeals.

D. Hudson v. United States

Recently, the Supreme Court handed down its decision in Hudson v. United States, --- U.S. ----, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), in which it disavowed the analysis applied in U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) to determine whether a civil sanction is a "punishment" for purposes of the Double Jeopardy Clause of the Fifth Amendment. In Hudson, the Office of the Comptroller of the Currency (OCC) imposed monetary penalties and occupational debarments on the defendants for violating federal banking statutes. The defendants were subsequently indicted for violations resting on the same lending transactions that formed the basis for the prior administrative actions brought by the OCC. The defendants moved to dismiss the indictment under the Double Jeopardy Clause of the Fifth Amendment. The District Court ultimately dismissed the indictments, but the Court of Appeals reversed. Relying on United States v. Halper, the Court of Appeals held the proven damages to the Government were not so grossly disproportional as to render the sanctions "punishment" for double jeopardy purposes. Hudson, --- U.S. at ----, 118 S.Ct. at 492.

Before addressing the issues presented in Hudson, the Supreme Court specifically recognized in its opinion that certiorari was granted because of the Courts "concern about the wide variety of novel double jeopardy claims spawned in wake of Halper." Hudson, --- U.S. at ----, 118 S.Ct. at 498. The Court reiterated that the Double Jeopardy Clause states that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb." The Court explained that it has "long recognized that the Double Jeopardy Clause does not prohibit the imposition of any additional sanction that could, 'in common parlance,' " be described as punishment. It emphasized, however, that the "Clause protects only against the imposition of multiple criminal punishments for the same offense ... and then only when such occurs in successive proceedings." Hudson, --- U.S. at ----, 118 S.Ct. at 493.

Citing the double jeopardy analysis for multiple punishments pre-Halper, the Court set out the proper inquiry for determining whether a civil penalty constitutes "punishment" for purposes of double jeopardy:

Whether a particular punishment is criminal or civil is, at least initially a matter of statutory construction. Helvering [v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed 917] 339 (1938 ). A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." [United States v.] Ward, 448 U.S. [242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980) ]. Even in those cases where the legislature "has indicated an intention to establish a civil...