Tafel v. State

• Decision Date: 15 December 2017
• Docket Number: No. 16-1020,No. 16-1019,16-1019
• Citation: 536 S.W.3d 517
• Parties: Mark Ken TAFEL, Petitioner, v. The STATE of Texas, Respondent Mark Ken Tafel, Petitioner, v. The State of Texas, Respondent
• Court: Texas Supreme Court

536 S.W.3d 517

Mark Ken TAFEL, Petitioner,

v.The STATE of Texas, Respondent

Mark Ken Tafel, Petitioner,

v.The State of Texas, Respondent

No. 16-1019

No. 16-1020

Supreme Court of Texas.

OPINION DELIVERED: December 15, 2017

E. Alan Bennett, Sheely Lovelace & Mayfield P.C., Waco, TX, Rickey Lee Bryan, Bryan Law Firm PLLC, Hamilton, TX, for Petitioner.

John A. Kuchera, Attorney at Law, Waco, TX, B.J. Shepherd, District Attorney, David Adam Sibley, Jr., Meridian, TX, John E. Terrill, Senior Prosecuting Attorney, Stephenville, TX, for Respondent.

Per Curiam

This appeal involves the forfeiture of two handguns pursuant to Texas Code of Criminal Procedure article 18.19. Two questions are presented. The first is whether the forfeiture proceedings are civil in nature so that this Court has jurisdiction. The second, which we may consider only if we answer the first "yes," is whether conviction for possession of a weapon authorizes a forfeiture order under article 18.19(e), which allows forfeiture based on conviction of an offense involving use of the weapon. The court of appeals determined that the forfeiture proceedings are civil in nature and answered the second question "yes." We agree that the proceedings are civil but conclude that the answer to the second is "no." Accordingly, we reverse.

Texas Penal Code section 46.035(c) makes it an offense to carry a handgun in the room where a governmental entity is meeting. Mark Tafel, who was a Hamilton County commissioner at the time and held a concealed handgun license, was arrested and convicted for the unlawful carrying of two handguns into a meeting of the commissioner's court. The guns were discovered when the sheriff observed a bulge that he believed was a weapon under Tafel's left arm. Following Tafel's conviction, the State moved for forfeiture of the guns. The State's motions were pursuant to Texas Code of Criminal Procedure article 18.19(e), which provides for forfeiture of a weapon following conviction for "an offense involving the use of the weapon." TEX. CODE CRIM. PROC. art. 18.19(e). The trial court granted the motions.

Tafel appealed, challenging both the convictions and the forfeiture orders. The court of appeals determined that the forfeiture proceedings were civil in nature. It severed the appeals of the forfeiture orders from the appeals of the convictions. In a 2-1 decision, it affirmed the forfeiture orders on the basis that "use" of a weapon under article 18.19(e) includes simply possessing the weapon, and a separate and distinct offense is not required. 524 S.W.3d 642, 644 (Tex. App.—Waco 2016).

Tafel's appeal to this Court presents two arguments. First, he maintains that article 18.19(e) forfeiture proceedings are criminal law matters. That being so, he argues, the court of appeals erroneously classified and docketed the forfeiture proceedings as civil instead of criminal. Second, recognizing that we might not agree with his first argument, he argues that the trial court ordered forfeiture pursuant to article 18.19(e) ; he was only in possession of the guns and not using them in any manner; and under article 18.19(e), his mere possession of them does not constitute their "use."

In countering Tafel's jurisdiction argument, the State asserts that forfeiture under article 18.19(e) is a civil in rem proceeding. That is so because property, not a person, is what is subject to seizure. As to Tafel's second argument addressing the merits of the appeal, the State argues that the Court of Criminal Appeals has defined "use" to include simple possession when the possession facilitates an associated felony.

See Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989). Thus, according to the State, article 18.19(e) allows forfeiture following a possession conviction under Chapter 46.

We first address the jurisdiction issue. See Hous. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007) (holding that courts have jurisdiction to determine their own jurisdiction). We begin our analysis by noting that article 18.19's location within the Code of Criminal Procedure is not dispositive as to whether forfeitures under it are criminal matters. See Smith v. Doe, 538 U.S. 84, 94-95, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (observing that codifying a sex offender registration provision in a criminal procedure code was not dispositive of the statute's nature); U.S. v. One Assortment of 89 Firearms, 465 U.S. 354, 364, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (holding that a forfeiture provision for firearms was a civil sanction despite codification of its authorizing statute in a criminal code). In Hardy v. State, we concluded that "[a] civil forfeiture proceeding under chapter 18 of the Texas Code of Criminal Procedure is an in rem procedure" and therefore is a "proceeding against the property itself, not against the owner." Hardy v. State, 102 S.W.3d 123, 126-27 (Tex. 2003). Tafel correctly notes that we did not consider the entirety of article 18 in Hardy but instead only examined article 18.18, which addresses disposition of various specified categories of items, including prohibited weapons. Id. at 125. While article 18.18 specifically includes prohibited weapons and article 18.19 encompasses weapons that are not categorized as prohibited, the distinction is immaterial. Because forfeiture proceedings are against property, the proceedings are civil in rem matters. State v. Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976) ; see, e.g., Fant v. State, 931 S.W.2d 299, 307 (Tex. Crim. App. 1996) ; State v. Meyers, 328 S.W.2d 321, 325 (Tex. Civ. App.—Dallas 1959, writ ref'd n.r.e.) ; McKee v. State, 318 S.W.2d 113, 118 (Tex. Civ. App.—Amarillo 1958, writ ref'd n.r.e.). We conclude that jurisdiction is proper in this Court.

We next consider whether the trial court's forfeiture orders made pursuant to article 18.19(e) are valid when they were based on Tafel's conviction under Chapter 46 of the Penal Code.

Article 18.19 addresses the disposition of seized weapons under two distinct circumstances: "Weapons seized in connection with an offense involving the use of a weapon or an offense under Penal Code Chapter 46." TEX. CODE CRIM. PROC. art. 18.19(a). Subsection (e) specifies the procedures and requirements regarding forfeiture for weapons seized in connection with the first basis for forfeiture—an offense involving the use of a weapon:

(e) If the person found in possession of a weapon is convicted of an offense involving the use of the weapon, ... the court entering judgment of conviction shall order ... forfeiture to the state....

TEX. CODE CRIM. PROC. art. 18.19(e). Subsection (d) specifies the procedures and requirements regarding forfeiture for weapons seized in connection with the second basis for forfeiture—an offense under Chapter 46:

(d) A person either convicted or receiving deferred adjudication under Chapter 46, Penal Code, is entitled to the weapon seized upon request to the court in which the person was convicted or placed on deferred adjudication. However, the court entering the judgment shall order the weapon ... forfeited to the state ... if:

(1) the person does not request the weapon before the 61st day after the date of the judgment of conviction or the order placing the person on deferred adjudication;

(2) the person has been previously convicted under Chapter 46, Penal Code;

(3) the weapon is one defined as a prohibited weapon under Chapter 46, Penal Code;

(4) the offense for which the person is convicted or receives deferred adjudication was committed in or on the premises of a playground, school, video arcade facility, or youth center ...; or

(5) the court determines based on the prior criminal history of the defendant or based on the circumstances surrounding the commission of the offense that possession of the seized weapon would pose a threat to the community or one or more individuals.

TEX. CODE CRIM. PROC. art. 18.19(d).

Article 18.19(e) mandates forfeiture without exception when a person is convicted of an offense involving the "use" of a weapon. Id. art. 18.19(e). But article 18.19(d) provides that a person convicted or receiving deferred adjudication under Chapter 46 is entitled to the return of their weapon upon request, absent the application of one of five specified exceptions. Id. art. 18.19(d). Tafel was convicted under section 46.035(c), which makes it an offense to carry a weapon into a meeting of a governmental entity. TEX. PEN. CODE § 46.035(c). However, the forfeiture orders Tafel challenges were rendered pursuant to article 18.19(e). For the reasons expressed below, we agree with Tafel and the dissenting justice in the court of appeals, see 524 S.W.3d at 686 (Gray, C.J., dissenting), that because Tafel's convictions were under Chapter 46 of the Penal Code, the applicable forfeiture provisions were those in article 18.19(d).

When interpreting a statute, we presume the Legislature intended the entire statute to be effective and none of its language to be surplusage. Kallinen v. City of Hous., 462 S.W.3d 25, 28 (Tex. 2015) (citing Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987) ). The Legislature provided two separate paths to forfeiture under article 18.19, each with its own procedures. And as noted above, where article 18.19(e) applies, then conviction mandates forfeiture, while under article 18.19(d) conviction alone is not sufficient for forfeiture. Reading the statute as permitting article 18.19(e) to serve as the basis for forfeiture following a Chapter 46 conviction renders article 18.19(d) meaningless because all forfeiture proceedings under article 18.19 would then fall within article 18.19(e).

The State argues that "use" has been interpreted by the Court of Criminal Appeals, albeit in regard to a different statute, to include simple possession if such possession facilitates the associated felony. See Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989). Thus, the State's argument goes, article 18.19(e) supports forfeiture...