                                 NO. 07-10-00058-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                 DECEMBER 22, 2010


                      GENEKE ANTONIO LYONS, APPELLANT

                                           v.

               LYNN SWITZER, IN HER CAPACITY AS 31ST JUDICIAL
              DISTRICT ATTORNEY, TROOPER JASON HENDERSON,
                THE TEXAS DEPARTMENT OF PUBLIC SAFETY AND
                      THE STATE OF TEXAS, APPELLEES


            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

             NO. 11,808; HONORABLE STEVEN RAY EMMERT, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION

      Appellant, Geneke Antonio Lyons, appeals the trial court’s granting of a summary

judgment and plea to the jurisdiction in favor of each appellee, Lynn Switzer, Jason

Henderson, the Texas Department of Public Safety, and the State of Texas. We affirm.


                          Factual and Procedural Background


      This case arose out of the seizure of $106,251.91 by Trooper Jason Henderson

of the Texas Department of Public Safety. The factual background for the ensuing
petition filed by Lyons is set forth in detail in this Court’s opinion in Lyons v. Henderson,

No. 07-06-0425-CV, 2008 Tex.App. LEXIS 3609 (Tex.App.—Amarillo May 19, 2008, no

pet.) (mem. op. not designated for publication) 1 and we refer the parties to that

discussion. See id. at *1-*3. In that opinion, we affirmed the trial court’s determination

that it lacked subject matter jurisdiction over Lyons’s claim, but reversed the trial court’s

dismissal of Lyons’s action with prejudice and remanded the case back to the trial court

to afford Lyons a reasonable opportunity to amend his pleadings in order to correct the

jurisdictional defect. Id. at *11.


       Lyons filed an amended pleading on August 19, 2008.               Lyons’s amended

pleading added Lynn Switzer, in her official capacity as 31st Judicial District Attorney, an

action for declaratory judgment, an allegation of deprivation of Lyons’s Fifth Amendment

rights under the United States Constitution, a claim of violation of Lyons’s rights under

article 1, section 19, of the Texas Constitution, and a general claim for damages

pursuant to section 104.002 of the Texas Civil Practice and Remedies Code.              The

appellees each filed a plea to the jurisdiction and a motion for summary judgment.

Lyons also filed a motion for summary judgment and objected to the summary

judgments filed by appellees.        The trial court granted the appellees’ pleas to the

jurisdiction and summary judgments. This appeal followed.


       Lyons’s appeal asserts a total of nine different issues.           Because of our

disposition, we only address the issue of jurisdiction. It is noteworthy to understand the

limited purpose for which we remanded this matter to the trial court, which was to allow


       1
           We will refer to this 2008 opinion as “Lyons I.”
                                               2
Lyons the opportunity to amend his pleadings to demonstrate that he could cure the

jurisdictional deficiency apparent in his original pleading. We have determined that he

has not cured the jurisdictional deficiency and will, therefore, affirm the judgment of the

trial court.


                               Subject Matter Jurisdiction


        Initially, we observe that our opinion in Lyons I resulted in a remand limited to

allowing Lyons the opportunity to amend his pleadings to cure the jurisdictional defect in

his original petition. Id. Lyons’s amended pleading did not address the fact that the res,

the $106,251.91 seized by Henderson, was not in the possession of the State at the

time he commenced his suit. Thus, to the extent that Lyons continues to request the

trial court to return the res to him, the court lacks jurisdiction. See One Hundred Ninety-

one Thousand Four Hundred Fifty-two and no/100 Dollars v. State, 827 S.W.2d 430,

433 (Tex.App.—Corpus Christi 1992, writ denied) (release or removal of the res from

control of the court will terminate jurisdiction). As stated previously, the court in this

case never had control of the res. Since forfeiture is an in rem proceeding, the court’s

jurisdiction is predicated on control over the res. See Costello v. State, 774 S.W.2d

722, 723 (Tex.App.—Corpus Christi 1989, writ denied). However, the general rule is

subject to an exception when the res may have been removed from the control or

custody of the court accidentally, fraudulently, or improperly.      Id. at 724.   Neither

Lyons’s pleading nor the evidence in the record indicate that any of the exceptions




                                            3
apply. 2 Therefore, unless Lyons’s amended pleading establishes that the turnover was

improper, his causes of action still suffer from a jurisdictional defect.


       Lyons’s cause of action for declaratory relief suffers from the same jurisdictional

infirmity. Lyons “seeks declaratory judgment that the failure of the named appellees to

comply with the strict requirements of Article 59.01, et seq., Tex. Code of Crim. Proc.,”

shows that Lyons is entitled to return of the res. See TEX. CODE CRIM. PROC. ANN. ch.59

(West 2006 & Supp. 2010). 3 This allegation does nothing more than recast the original

action as a declaratory judgment action seeking a declaration that the same statutory

scheme as was argued in the original proceeding, Chapter 59, invalidates the turnover

of the res to the Drug Enforcement Administration (DEA). See One Hundred Ninety-one

Thousand Four Hundred Fifty-two and no/100 Dollars, 827 S.W.2d at 433.


       Therefore, because Lyons’s alleged constitutional impropriety relates to the

potential forfeiture rather than the turnover of the res to federal authorities, none of the

Costello exceptions apply.      Consequently, the trial court was without jurisdiction to

address these alleged constitutional violations.




       2
        Appellant does mention the exceptions in his brief, however, nowhere in his
pleadings does he assert that the accident or fraud exceptions apply to the facts of this
case.
       3
         Further reference to the Texas Code of Criminal Procedure will by reference to
“art. ___,” “article ____,” or “Chapter ___.”
                                              4
                                         Conclusion


       Because the trial court’s ruling on jurisdiction was correct, we affirm the judgment

entered by the trial court in all respects.




                                                        Mackey K. Hancock
                                                             Justice




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