York v. State

• Decision Date: 24 September 2009
• Docket Number: No. 2-08-118-CV.,2-08-118-CV.
• Citation: 298 S.W.3d 735
• Parties: Larry YORK d/b/a York Tank Trucks, Appellant, v. STATE of Texas and Wise County, Texas, Appellees.
• Court: Texas Court of Appeals

298 S.W.3d 735

Larry YORK d/b/a York Tank Trucks, Appellant, v. STATE of Texas and Wise County, Texas, Appellees.

No. 2-08-118-CV.

Court of Appeals of Texas, Fort Worth.

September 24, 2009.

Samuel C. Bishop, Bishop & Bishop, Decatur, TX, for Appellant.

Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, for Appellee Wise County.

Greg Abbott, Attorney General of Texas, David A. Talbot, Jr., Attorney General of Texas, Chief, Law Enforcement Defense Division, Kent C. Sullivan, First Assistant Attorney General, Harold J. Liller, Assistant Attorney General, David S. Morales, Deputy Attorney General for Litigation, Austin, TX, for Appellee State of Texas.

Panel: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

OPINION ON REHEARING

TERRIE LIVINGSTON, Justice.

After considering the motions for rehearing filed by appellant and both appellees, we deny all four motions, but we withdraw our prior opinion and judgment of June 11, 2009 and substitute the following to make nonsubstantive clarifications.

Appellant Larry York d/b/a York Tank Trucks (York) appeals from the trial court's order dismissing York's suit against appellees State of Texas and Wise County, Texas for want of jurisdiction. In seven issues, York challenges the trial court's conclusions of law supporting its dismissal orders, as well as appellees' other grounds for dismissal in their pleas to the jurisdiction. We affirm in part and reverse and remand in part.

Background Facts

On October 29, 2006, Trooper Tim Godwin, a Texas Department of Public Safety (DPS) officer, seized and impounded a tank trailer bearing the license plate number W41 503 because the vehicle identification number (VIN) had been removed. Upon checking the license plate number, DPS determined that the registered owner of the trailer was listed as McNutt Co. in Snyder, Texas. Instead of contacting McNutt Co., however, Sergeant David Martinez contacted York. York Vacuum was listed on the registration receipt, which expired in October 2006, as the "renewal recipient," and the vehicle location was shown as an address in Bridgeport.¹ Also, "York" was painted on the side of the trailer. York explained that he owned the trailer but that the title had not been transferred. He stated that the VIN plates had been removed and presumably destroyed while the trailer was being repaired.² Sergeant Martinez asked a DPS Motor Vehicle Theft Analyst to search for similar trailers in Texas. The analyst located five, only one of which was currently registered. According to Sergeant Martinez,

Without the VIN, I had no way of determining whether the trailer matched an MD trailer currently registered in Texas or whether the trailer was stolen and brought in from out of state. No further action was taken because Mr. York indicated that all parts with the VIN attached had been destroyed.

However, there were no reports of a stolen trailer similar to the one seized.

Although York requested that the trailer be returned to him, on February 16, 2007, the State, through Sergeant Martinez, petitioned a Wise County magistrate to dispose of the property as stolen under chapter 47 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. arts. 47.01-12 (Vernon 2006 and Supp. 2009); Tex. Transp. Code Ann. § 501.158 (Vernon 2007) (providing that vehicle with removed, altered, or obliterated VIN may be treated as stolen for purposes of custody and disposition).

On March 29, 2007, York and Trooper Martinez appeared in Justice of the Peace Court No. 2 in Wise County. According to York, he "presented a substantial amount of evidence showing [his] ownership in and right to possession of the tank trailer," including his "testimony, several photographs of the trailer with the other vehicles" he owned, "the billing records for having the trailer converted to a tank trailer, repair records on the trailer, records showing [he] insured the vehicle, inspection records from [DPS], and Registration Renewal Receipts from the State." Also according to York, no evidence was presented that the trailer was actually lost or stolen. Even so, the justice court awarded the trailer to the State and ordered that it be used or disposed of by the Wise County Sheriff's Department at its discretion.³ York failed to timely appeal although he attempted to do so.⁴ See Tex.Code Crim. Proc. Ann. art. 47.12(c) (requiring appellant to give oral notice of appeal immediately after decision and to post bond); Phillips v. State, 77 S.W.3d 465, 466-67 (Tex.App.-Houston [1st Dist.] 2002, no pet.); White v. State, 930 S.W.2d 673, 676 (Tex.App.-Waco 1996, no writ). The trailer has remained locked and fenced in since that time, and the markings for York's business have been removed.

On August 22, 2007, York sued appellees. He alleged that when DPS seized the trailer, and when the justice court awarded it to appellees, the trailer was part of York's bankruptcy estate under a January 14, 2003 filing that had not yet been discharged. York sought a declaratory judgment that the justice court's order was void because it was rendered in violation of the bankruptcy code's automatic stay. See 11 U.S.C.A. § 362(a)(3) (West 2004). He also raised a takings claim under article I, section 17 of the Texas constitution, seeking damages.⁵ Tex. Const. art. I, § 17. In their answers, appellees asserted sovereign immunity from suit and liability. In addition, they both filed pleas to the jurisdiction on the same grounds; they also alleged that York had not proven that the trailer was part of the bankruptcy estate, that only the bankruptcy court could determine whether it was included in the estate, and that even if it was, the order was voidable, not void. They further alleged that because the trailer was stolen, the justice court's action fell within the exercise of police or regulatory power exception to the automatic bankruptcy stay. See 11 U.S.C.A. § 362(b)(4). York filed traditional and no-evidence motions for summary judgment on both appellees' immunity defenses and jurisdictional allegations.

The trial court initially granted the State's plea to the jurisdiction. York then filed a motion for reconsideration, in which he asked to present new evidence showing that McNutt Co. had sold his father the trailer during the late 1980s or early 1990s and that York had bought the trailer, along with the other assets of his father's business, in 1993. He financed the sale through a loan from Roscoe State Bank, which took a lien on the business's assets, including the trailer. York never obtained a certificate of title to the trailer in his name because his father originally planned to scrap the trailer for parts; because his father never did so, the trailer sat unused for several years. York decided to put the trailer into service in 1999; he obtained a new license plate, began having the trailer inspected by DPS, and started registering it with the State. The trial court granted York's motion for reconsideration.

York filed a second amended petition, in which he alleged the new facts showing his ownership of the trailer and explaining why the VIN plates were missing. He also alleged a new declaratory judgment claim: that the proceeding in the justice court violated his substantive and procedural due process rights because chapter 47 does not require a prompt hearing once property is seized as stolen; that chapter 47 does not provide for a fair and meaningful hearing—as evidenced by the fact that during a five-year period preceding York's suit, the justice court had awarded Wise County property seized for lack of a VIN in "virtually every case," except one involving a Wise County Commissioner; and that the statutory deadlines for perfecting an appeal are "wholly unreasonable and violate the due process rights of [York] and others involved in such hearings."

Appellees responded by filing supplements to their pleas to the jurisdiction. In those responses, the State contended that only the bankruptcy court in which York's case was pending could determine whether the trailer was a part of the bankruptcy estate, that York's suit should be against the justice court rather than appellees, that the seizure of the trailer under section 501.158 of the transportation code was not a taking under article I, section 17 of the Texas constitution, and that they are immune from the newly pled due process claims. The State presented evidence that York attempted to file an undated notice of appeal, which has the following handwritten notation, "4-9-07 No Bond required per Judge. Respondent is not in possession of property." The notation is signed "X Judge Johnson." Also attached to the supplemental response is a copy of a petition for bill of review that York filed in the Justice Court Precinct No. 2 of Wise County, contending that he failed to meet the oral notice of appeal requirement due to accident or official mistake because he appeared without counsel and no record was made. The justice court denied the bill of review, concluding that York did not have a meritorious defense.

York subsequently filed affidavits from Tyson Schiflett, the owner of the painting business; Brian Studdard, a senior Vice President for Roscoe State Bank, which claimed a lien on the trailer; and Lyndia McNutt. Schiflett averred that his painters removed the VIN plates from the trailer and "failed to rivet" them back onto the trailer when they were finished. Although he searched for the VIN plates after York contacted him, he was unable to locate them. According to Schiflett, they had "probably been lost or discarded."

Studdard averred that the trailer was accepted by the bank as collateral for a loan to York and that the bank currently held a lien on the trailer. The bank was never notified of the proceedings in the justice of the peace court. Studdard also averred that York had delivered a true and correct copy of title to the trailer in his name. Attached to his affidavit was a copy of a...