Gonzalez v. State

• Decision Date: 04 June 1992
• Docket Number: No. 13-91-112-CV,13-91-112-CV
• Citation: 832 S.W.2d 706
• Parties: Leonel Madrigal GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 706

832 S.W.2d 706

Leonel Madrigal GONZALEZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-91-112-CV.

Court of Appeals of Texas Corpus Christi.

June 4, 1992.

Glen A. Barnard, Harlingen, for appellant.

Luis V. Saenz, County Criminal Dist. Atty., Oscar Ponce, Asst. County Atty., Brownsville, for appellee.

Before NYE, C.J., and SEERDEN, J., and GERALD T. BISSETT ¹, J. (Assigned).

OPINION

SEERDEN, Justice.

Appellant Leonel Madrigal Gonzalez appeals from the judgment of the trial court forfeiting $94,000. By a single point of error, appellant contends that the trial court erred in granting a Post-Answer Default Judgment and forfeiture of the United States currency. We reverse and remand the cause for trial.

On October 24, 1990, pursuant to Tex.Code Crim.Proc.Ann. art. 59.01(2) (Vernon Supp.1992), the State seized what they alleged to be contraband possessed by appellant to be used to purchase 175 pounds of marihuana. Appellant was arrested on the same day and charged with illegal investment and attempted illegal investment. On October 25, 1990, the State of Texas filed a Petition and Notice of Seizure and Intended Forfeiture and appellant signed a waiver of citation and release. On October 31, 1990, appellant filed a verified answer denying that the seized property of $94,000 was subject to forfeiture. The trial court entered a judgment forfeiting the sum to the State of Texas on November 6, 1990, without notice to the appellant.

In his single point of error, appellant contends that the trial court erred in hearing the case and entering judgment without notice to him after his appearance in the case. The State of Texas contends that he was not entitled to notice since he had executed a waiver and disclaimed any interest in the property.

Forfeiture proceedings are governed by Tex.Code Crim.Proc.Ann. art. 59 et seq. (Vernon Supp.1992). These cases shall proceed to trial in the same manner as other civil cases. Tex.Code Crim.Proc.Ann. art. 59.05(b) (Vernon Supp.1992). The record shows that appellant filed a verified answer on October 31, 1990, complying with the requirement for filing a response in a civil action. Tex.R.Civ.P. 239.

We first address the question of appellant's right to receive notice of a trial setting after having signed a waiver and release and subsequently filed a verified answer. Appellant contends that he has been denied due process by not receiving notice of a trial setting after having timely filed an answer. If a timely answer has been filed in a contested case, due process rights are violated when judgment is subsequently entered without the party having received notice of the setting of the case. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988); Wilson v. Indus. Leasing Corp., 689 S.W.2d 496 (Tex.App.--Houston [1st Dist.] 1985, no writ). The record does not show that appellant or his attorney was served with notice of the setting for the default judgment proceeding.

Next, appellee contends that appellant failed to comply with the Texas Rules of Civil Procedure in failing to show grounds upon which a new trial should be granted. Requiring a defendant to set up a meritorious defense or produce evidence of a defense at the hearing in the absence of notice violates due process rights under the United...