      Case: 19-20513          Document: 00515371601              Page: 1       Date Filed: 04/03/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit

                                                                                            FILED
                                         No. 19-20513 c/w                                April 3, 2020
                                          No. 19-20515
                                        Summary Calendar                               Lyle W. Cayce
                                                                                            Clerk


In the Matter of: Herman E. Hoffman

                 Debtor

HERMAN E. HOFFMAN, JR.,

                 Appellant

v.

HOUSTON SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS,

                  Appellee
----------------------------------------------------------------------------

Consolidated with: 19-20515

HERMAN HOFFMAN; KATHLEEN HOFFMAN,

                 Plaintiffs - Appellants

v.

GORDON WELCH, In his individual capacity; DEBORAH MICHIELSON, In
her individual capacity; J. D. LAMBRIGHT; STUART HUGHES; RONALD
CHIN; WAYNE MACK; MICHAEL SEILER; MONTGOMERY COUNTY,
TEXAS; HOUSTON SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS; BRETT LIGON,

                 Defendants – Appellees
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                                 No. 19-20515

                 Appeals from the United States District Court
                      for the Southern District of Texas


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
      The earlier opinion issued April 1, 2020 is withdrawn by the panel, and
the following is issued in its place.
      In this consolidated action, Plaintiffs-Appellants Herman and Kathleen
Hoffman challenge the district court’s dismissal of their suit against the
Houston Society for the Prevention of Cruelty to Animals (HSPCA) and Texas
county and state officials for unlawful search and seizure under 42 U.S.C.
§ 1983. Herman Hoffman also appeals the dismissal of his adversary
proceeding against the HSPCA alleging fraudulent transfer under 11 U.S.C.
§§ 542, 548, and 550. For the reasons set forth below, we AFFIRM the district
court’s dismissals.
      The Hoffmans owned 211 horses, many of which had been starved and
mistreated. Leslie Maybin worked for the Hoffmans from 2010 to 2014 and was
owed years of wages. When Maybin returned to work for the Hoffmans on June
22, 2015, the Hoffmans presented him with a bill of sale for ten horses, which
Maybin explained was payment for wages owed. The county seized the
remaining horses two days later, under an ordinance allowing for the seizure
of mistreated horses.
      The justice court, after finding that the horses had been starved and
mistreated, then transferred title in the horses to the HSPCA pursuant to
Chapter 821 of the Texas Health and Safety Code. The county court at law
affirmed this judgment. The U.S. Supreme Court denied certiorari. Hoffman v.
Texas, 136 S. Ct. 899 (2016) (mem.).

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      On May 19, 2016, Herman Hoffman filed a voluntary petition under
Chapter 12 of the Bankruptcy Code. He also filed an adversary proceeding
against Maybin and the HSPCA. The bankruptcy court, following a hearing,
dismissed Hoffman’s adversary proceeding. In re Hoffman, No. 16-32617, 2017
WL 727543, at *5 (Bankr. S.D. Tex. Feb. 23, 2017). It held that because
Hoffman was divested of ownership of his horses, he had no standing to protest
the subsequent transfer to the HSPCA under §§ 542, 548, and 550. Id. The
court also held that issue preclusion and the Rooker-Feldman doctrine
prevented Hoffman from relitigating his claims. Id. at *2 n.1, *5.
      Hoffman next appealed the bankruptcy court’s judgment. In addition,
both Herman and Kathleen Hoffman sued the HSPCA and Texas county and
state officials who defended Montgomery County’s actions in seizing the horses
in their individual and official capacities under § 1983. After conducting a
hearing, the district court dismissed Hoffman’s case against Maybin on
grounds that Hoffman had no right to the horses or their value. In re Hoffman,
No. AP 16-3222, 2019 WL 2501556, at *3 (S.D. Tex. June 14, 2019). The court
also dismissed Hoffman’s adversary proceeding against the HSPCA, affirming
the bankruptcy court’s holding. Id. Lastly, it dismissed the Hoffmans’ § 1983
suit against the HSPCA and Texas county and state officials. The court held,
inter alia, that the Hoffmans’ § 1983 claims were time-barred. Id. at *4.
      Now, the Hoffmans appeal the dismissal of their § 1983 claim, and
Hoffman appeals the dismissal of his adversary proceeding against the
HSPCA. 1 We address each claim in turn. We review a district court’s grant of




      1 Hoffman also appealed his adversary claim against Maybin in a separate proceeding.
This court has already affirmed the district court’s judgment in that case. See Matter of
Hoffman, 795 F. App’x 291 (5th Cir. 2020) (per curiam).
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a motion to dismiss under Rule 12(b)(6) de novo. Budhathoki v. Nielsen, 898
F.3d 504, 507 (5th Cir. 2018).
       Because § 1983 does not prescribe a statute of limitations, courts “must
borrow the relevant state’s statute of limitations for personal injury actions.”
Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018). Texas has a two-
year statute of limitations for conversion of property claims. King-White v.
Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015); TEX. CIV. PRAC. &
REM. CODE ANN. § 16.003. Federal law determines when a cause of action
under § 1983 accrues. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.
2001). We have held the limitations period begins to run once the plaintiff
“becomes aware that he has suffered an injury or has sufficient information to
know that he has been injured.” Piotrowski v. City of Houston, 51 F.3d 512, 516
(5th Cir. 1995) (citation omitted). Accordingly, the clock here began to run at
the moment Texas officials first seized the Hoffmans’ horses.
       In their complaint, the Hoffmans allege that the seizure occurred on
June 24, 2015. The Hoffmans thus had to bring their claim no later than June
26, 2017. 2 They first filed suit on July 31, 2017—over a month after the two-
year deadline had expired. The Hoffmans attempt to skirt around this by
arguing the seizure of their horses was only finalized when the justice court
divested them of ownership. Yet, even accepting this logic, the record makes
clear the court issued its order on July 8, 2015, and thus the Hoffmans’ claims
would still be time-barred. 3 As such, the district court correctly held that the


       2 Texas law requires a claim be brought “no later than the same calendar day two
years following the accrual of the cause of action,” which would make June 24, 2017, the final
day the Hoffmans could file their claim. Price v. City of San Antonio, Tex., 431 F.3d 890, 893
(5th Cir. 2005). Because that date fell on a Saturday, however, the Hoffmans had until the
following Monday (June 26) to file. FED. R. CIV. P. 6(a)(3)(A).
       3 The Hoffmans argue that the continuing tort doctrine applies here because the

horses were never returned. The Supreme Court of Texas has “neither endorsed nor
addressed” this doctrine. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 592 (Tex. 2017)
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statute of limitations barred the Hoffmans’ § 1983 claims against both the
HSPCA and Texas county and state officials.
       Hoffman’s adversary claims against the HSPCA alleging fraudulent
transfer under §§ 542, 548, and 550 also fail. All U.S. courts must give the same
full faith and credit to prior state court judgments. 28 U.S.C. § 1738. “Under
collateral estoppel, once an issue is actually and necessarily determined by a
court of competent jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to the prior
litigation.” Montana v. United States, 440 U.S. 147, 153 (1979). When giving
preclusive effect to a state court judgement, we apply the preclusion rules of
that state; accordingly, Texas rules apply. In re Keaty, 397 F.3d 264, 270 (5th
Cir. 2005). Texas law dictates that issue preclusion requires (1) “the facts
sought to be litigated in the second action were fully and fairly litigated in the
first action,” (2) “those facts were essential to the judgment in the first action,”
and (3) “the party against whom the doctrine is asserted was a party or in
privity with a party in the first action.” Sysco Food Servs., Inc. v. Trapnell, 890
S.W.2d 796, 802 (Tex. 1994). Under the first factor, Texas courts consider
whether the parties were fully heard, that the court supported its decision with
a reasoned opinion, and that the decision was subject to appeal. Mower v.
Boyer, 811 S.W.2d 560, 562 (Tex. 1991). Under the second factor, facts are
essential when they are “necessary to form the basis of a judgment” in the first
action. Tarter v. Metro. Sav. & Loan Ass’n, 744 S.W.2d 926, 928 (Tex. 1988).



(quoting Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 924 (Tex. 2013)).
In any event, the search and seizure here—a single incident—does not amount to a
continuing tort, one which would forever suspend the statute of limitations absent the horses’
return. See, e.g. Bloom v. Alvereze, 498 F. App’x 867, 874 (11th Cir. 2012) (holding the refusal
to return seized animals was not a continuous tort); Huerta v. United States, 384 F. App’x
326, 328 (5th Cir. 2010) (per curiam) (“the continued poverty . . . allege[d] does not convert
the one-time seizure into an ongoing tort”).
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      Issue preclusion bars Hoffman from relitigating the seizure and transfer
of his horses. First, the finding of animal cruelty, which resulted in the horses’
transfer to the HSPCA, was fully and fairly litigated. The justice court held a
hearing before divesting Hoffman of the horses. Hoffman appealed this
decision to the county court, which affirmed. He again sought review of the
seizure when he filed a petition for writ of certiorari to the U.S. Supreme Court.
Second, the court’s finding that Hoffman should be divested of ownership after
cruelly treating his horses was essential to the HSPCA’s possession. See TEX.
HEALTH & SAFETY CODE § 821.023(d)(2) (“If the court finds that the animal’s
owner has cruelly treated the animal, the owner shall be divested of ownership
of the animal, and the court shall order the animal given to a . . . nonprofit
animal welfare organization[.]”). Third, Hoffman was a party to the first action.
      Hoffman contends issue preclusion cannot bar his claims because the
justice court lacked jurisdiction under § 821.023 to issue a valid, final
judgment. He argues that the “court of competent jurisdiction” in § 821.023
that made previous criminal findings must be the same court that conducts a
subsequent hearing on divestment of ownership. While Hoffman is correct that
§ 821.023 does not explicitly specify that a justice court may conduct a
disposition hearing, we agree with the bankruptcy court that the statute as a
whole makes clear a justice court may do so. First, § 821.022(b) allows a justice
court to conduct a hearing to determine whether an animal has been cruelly
treated following seizure. Then, concerning appeals, § 821.025(a) states that
an “owner divested of ownership of an animal under Section 821.023 may
appeal the order to a county court or county court at law in the county in which
the justice or municipal court is located.” (emphasis added). Lastly, if
divestment results in an auction per § 821.023(d)(1), § 821.024(b) instructs
that the “officer conducting the auction shall pay any excess proceeds to the

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justice or municipal court ordering the auction.” (emphasis added). Because
there was a valid, final judgment from the state court proceedings, the district
court properly dismissed Hoffman’s adversary claims under collateral estoppel.
      AFFIRMED.




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