State v. $45,810.10 in U.S. Currency
| Decision Date | 29 July 2020 |
| Docket Number | No. 04-19-00636-CV,04-19-00636-CV |
| Citation | 609 S.W.3d 219 |
| Parties | The STATE of Texas, Appellant v. FORTY-FIVE THOUSAND AND EIGHT HUNDRED TEN DOLLARS AND TEN CENTS ($45,810.10) IN UNITED STATES CURRENCY, Appellee |
| Court | Texas Court of Appeals |
David L. Reuthinger Jr., Webb County District Attorney's Office, Isidro R. Alaniz, District Attorney - Webb County, 1110 Victoria, Suite 401, Laredo, TX 78040, for Appellant.
Silverio A. Martinez, Jr., Law Office of Silverio Martinez, 1010 Juarez, Laredo, TX 78040, for Appellee.
Sitting: Rebeca C. Martinez, Justice, Irene Rios, Justice, Beth Watkins, Justice
The State of Texas appeals an order granting summary judgment in this civil forfeiture proceeding. We affirm the trial court's order.
On March 5, 2019, police arrested Luis Alberto Gonzalez at a home located at 2801 Burke Drive in Laredo and seized $45,810.10 in currency as part of a narcotics investigation. Gonzalez posted bond and was released from custody on March 6, 2019. On his bond application, he listed his address as 2120 Ash Street in Laredo. On March 11, 2019, attorney Silverio Martinez notified the Webb County District Attorney's Office that he represented Gonzalez in connection with the March 5, 2019 arrest.
On March 20, 2019, the State filed the civil forfeiture lawsuit at issue in this appeal. On March 22, 2019, it attempted to serve notice of that lawsuit on Gonzalez by mailing a citation and petition to 1001 San Rio Boulevard, Laredo, a federal detention facility. There is no evidence Gonzalez was detained there or in any other federal facility. The same day, the State also mailed a citation and petition to 2810 Burke Drive, Laredo instead of to 2801 Burke Drive, Laredo, the location where Gonzalez was arrested. Both of these citations were returned unexecuted by April 26, 2019.
On May 16, 2019, an investigator with the Webb County District Attorney's Office performed a CLEAR search of Gonzalez's residence history. The search results listed 2120 Ash Street and 2801 Burke Drive as Gonzalez's most recent residences. On May 20, 2019, a Webb County assistant district attorney asked an investigator if Gonzalez was "still in federal custody." On May 24, 2019, another investigator with the Webb County District Attorney's Office spoke to Gonzalez on the phone. Gonzalez told the investigator "that his current address was 2801 Burke Drive in Laredo," but "stated that he was not coming back from San Antonio anytime soon" and asked the investigator to "serve him through his attorney."
On June 3, 2019, the State appeared for the first trial on the merits setting in this case. Gonzalez did not appear either in person or through his attorney, and the trial court noted that he "hasn't been served." The attorney for the State asserted, "[A]s far as I'm aware, Mr. Gonzalez is represented by Mr. [Silverio] Martinez's office." The State then requested a new trial setting.
On July 22, 2019, the State tried for the first time to serve Gonzalez by mail at 2120 Ash Street, the address listed on his bond application and the most recent entry on the CLEAR search report. On July 25, 2019, a State investigator visited 2120 Ash Street and spoke to Gonzalez's sister-in-law, who stated Gonzalez had never lived at that address and had moved to San Antonio. That same day, the State both filed a motion for substitute service and delivered a copy of the petition to Gonzalez's attorney, Martinez, for the first time. Martinez filed an answer on Gonzalez's behalf on July 31, 2019. The answer alleged that "[a]lthough the seizure of this property occurred on March 5, 2019, [Gonzalez] was just served with process on July 25, 2019."
On July 31, 2019, the parties appeared for the second trial on the merits setting. During that hearing, Gonzalez argued the forfeiture lawsuit was barred by limitations because the State did not serve him with notice of the lawsuit within thirty days of the seizure and did not exercise reasonable diligence to serve him after limitations expired. The trial court agreed and signed an order dismissing the forfeiture lawsuit and finding that "the State of Texas failed to demonstrate that it exercised due diligence in attempting service of process within the required limitations period of Chapter 59 of the Texas Code of Criminal Procedure [and] offered no justification for the lack of timely service of process." The State then filed a motion for new trial noting that Gonzalez's live answer did not specifically plead limitations. The trial court granted the motion for new trial, and reinstated the case. Gonzalez then amended his answer to plead limitations, and later amended his petition to specifically allege he was the owner of the seized currency.
Gonzalez filed a traditional motion for summary judgment on his limitations defense. In support of his motion, Gonzalez presented, inter alia, Martinez's affidavit stating that "a person who claimed to be an investigator with the Webb & Zapata County District Attorney's Office" called him shortly after he filed his March 11, 2019 notice of representation and asked if he would accept service of process on Gonzalez's behalf. Martinez stated, "The person did not specify what he planned to serve me with but I nevertheless agreed to accept service of process for my client." Martinez also stated that he "was never served with anything from the Webb & Zapata County District Attorney's Office" as a result of that phone call and that he "became aware of the forfeiture action" when he received a copy of the petition on July 25.
The State filed a motion to strike both Gonzalez's motion for summary judgment and Martinez's supporting affidavit, arguing the affidavit was "perjurious" because it purportedly conflicted with representations Martinez made in phone calls with the Webb County District Attorney's Office. The trial court denied that motion. The State also responded to Gonzalez's motion for summary judgment, arguing Gonzalez did not show lack of diligence as a matter of law and its own evidence raised a genuine issue of material fact on diligence. Finally, the State argued Gonzalez was equitably estopped from asserting a limitations defense because he gave a false address, evaded service, and fraudulently concealed his whereabouts as part of a scheme to "deceptively raise limitations."
On September 16, 2019, the trial court granted Gonzalez's motion for summary judgment. The trial court ordered the State "by and through its attorneys of record ... to return all property seized in this case" by delivering a cashier's check to Martinez in the amount of the seized funds by September 16, 2019. The trial court also ordered that "[f]ailure to comply with this Order shall result in a finding of contempt directly against the party/parties in violation of this order." The State filed its notice of appeal the same day, but it did not file any post-judgment motions challenging the order in the trial court.
The State raises eleven issues challenging various rulings of the trial court. It groups those issues into four categories: (1) Gonzalez's standing to challenge the forfeiture proceeding; (2) the trial court's ruling on the State's motion to strike Gonzalez's motion for summary judgment; (3) the trial court's ruling on Gonzalez's motion for summary judgment; and (4) complaints about the form of the trial court's summary judgment order. Gonzalez did not file an appellee's brief.
In its first issue, the State argues Gonzalez lacks standing to challenge the forfeiture lawsuit because he did not present evidence that he is an owner of or an interest holder in the seized funds. "The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome." Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 848 (Tex. 2005). "We review questions of standing de novo." Farmers Tex. Cty. Mut. Ins. Co. v. Beasley , 598 S.W.3d 237, 240 (Tex. 2020).
The State's forfeiture petition identified Gonzalez as a "possible possessor[ ] and owner[ ]" of the seized currency. Additionally, because the currency was in Gonzalez's possession when the police seized it, the State was required to make him a party to the forfeiture action and serve him with the petition. TEX. CODE CRIM. PROC. ANN. art. 59.04(j) (); TEX. R. CIV. P. 21 (). The State did not identify any other potential owners of or interest holders in the property, and it did not attempt to serve notice of the forfeiture lawsuit on anyone other than Gonzalez. TEX. CODE CRIM. PROC. ANN. art. 59.04(b) (). Nor did it attempt to follow the notification procedures that are required when "no person was in possession of the property at the time it was seized" or "the owner of the property is unknown." Id. art. 59.04(k). Finally, Gonzalez's live answer alleges he owns the seized funds.
The State has not shown that Gonzalez lacks a justiciable interest in the outcome of this case under these facts. See Austin Nursing Ctr. , 171 S.W.3d at 848. To the contrary, the State relies on authority whose facts are readily distinguishable from this case. See Valero v. State , 664 S.W.2d 728, 729 (Tex. App.—Beaumont 1983, writ ref'd n.r.e.) (...
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