

 
NUMBER 13-99-798-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________


GABRIELA ORTIZ (1997 CHRYSLER LHS

2C3HC56FXVH554673),	Appellant,


v.

THE STATE OF TEXAS,	Appellee.

___________________________________________________________________


On appeal from the 105th District Court
of Kleberg County, Texas.
____________________________________________________________________


O P I N I O N

Before Justices Hinojosa, Chavez, and Kennedy(1)

Opinion by Justice Kennedy

	The action which is the basis for this appeal began when plaintiff,
the State of Texas, seized an automobile belonging to appellant herein,
Gabriela Ortiz, the state having alleged that the automobile had been
used in the commission of a felony.  The state then filed a notice of
seizure and intended forfeiture of the automobile, because when its
owner (appellant) and her husband were detained, the car had sixteen
pounds of cocaine concealed under its back seat.

	The notice of seizure and intended forfeiture was filed on January
11, 1999, however, no service of citation was requested by the state on
the date of filing the notice.  On June 9, 1999, an attorney for the state
sent a letter to the Kleberg County District Clerk requesting that citation
by certified mail be issued.  The following day citation was issued but
it was returned unserved.  On June 28, 1999, a new letter was sent to
the clerk requesting service by certified mail upon appellant at a
different address.  This citation was served on appellant on July 2,
1999.

	Appellant filed a plea in bar, requesting that forfeiture be denied,
the cause dismissed, and the automobile be returned to her.  She bases
her plea in bar on the delay in serving citation on appellant.

	On November 19, 1999, the trial court signed an order finding that
the automobile was contraband and awarding possession of the
automobile to the Kleberg County Sheriff's Department.  On November
23, 1999, the court denied appellant's plea in bar and, subsequently,
entered judgment forfeiting the vehicle.  Appellant's sole issue is,
"whether the trial court erred in denying appellant's plea in bar because
of the state's lack of diligence in issuance of citation and service."  The
state has chosen to not file a brief herein.

	The law governing forfeiture of property seized as contraband is
set out in the code of criminal procedure, articles 59.01, et seq., and we
quote here the portions thereof pertinent to this case:

	Art. 59.01.  Definitions


		In this chapter:


		(2)	"Contraband" means property of any nature,
including real, personal, tangible, or intangible,
that is:


			(B)	used or intended to be used in the
commission of:


			(i)	any felony under Chapter 481, Health and
Safety Code (Texas Controlled Substances
Act);


	Art. 59.02.  Forfeiture of contraband


		(a)	Property that is contraband is subject to seizure
and forfeiture under this chapter.


	Art. 59.03.  Seizure of contraband


		(b)	Seizure of property subject to forfeiture may be
made without warrant if:


		(4)	the seizure was incident to a lawful arrest, lawful
search, or lawful search incident to arrest.


	Art. 59.04.  Notification of forfeiture proceeding


		(a)	If a peace officer seizes property under this
chapter, the attorney representing the state shall
commence proceedings under this section not
later than the 30th day after the date of the
seizure.


		(b)	A forfeiture proceeding commences under this
chapter when the attorney representing the state
files a notice of the seizure and intended forfeiture
in the name of the state with the clerk of the
district court in the county in which the seizure is
made.  The attorney representing the state must
attach to the notice the peace officer's sworn
statement under Article 59.03 of this code. 
Except as provided by Subsection (c) of this
article, the attorney representing the state shall
cause certified copies of the notice to be served
on the following persons in the same manner as
provided for the service of process by citation in
civil cases:


		(1)	the owner of the property; and


		(2)	any interest holder in the property.


	Art. 59.05.  Forfeiture hearing


		(a)	All parties must comply with the rules of pleading
as required in civil suits.


		(b)	All cases under this chapter shall proceed to trial
in the same manner as in other civil cases.  The
state has the burden of proving by a
preponderance of the evidence that property is
subject to forfeiture.


Tex. Code. Crim. Proc. art. 5901, et. seq. (Vernon Supp. 2000).


	The supreme court in State v. $435,000.00 (Selestine Ara
Lovelace), 842 S.W.2d 642, 644 (Tex. 1992) analyzed the effect of the
pre-1989 forfeiture law(2)
 which provided that after the state initiated a
forfeiture action and a claimant filed a verified answer to recover the
property "'a time for hearing on forfeiture must be set within 30 days
of the filing on an  answer."  Courts of appeals had disagreed over
whether the statute required the hearing  to be held within the 30-day
period(3)
 or whether it merely had to be set within this time for hearing
later.(4)
  Even with this disagreement, all the courts of appeals held the
requirement to be directory and not mandatory.  The supreme court
said:

	These labels are somewhat misleading.  More precisely, the
issue is not whether "shall" is mandatory, but what
consequences follow a failure to comply.  As we have noted
above, the obvious purpose of the provision was to require
a prompt resolution of forfeiture proceedings.  That purpose
is not well served if the provision is construed to mean only
that a hearing should be held, but is not required to be held,
within the prescribed time.  It is doubtful whether such a
provision could be enforced, as by mandamus, and thus it
would have little effect at all.  In this sense at least, "shall"
in this context is rather plainly mandatory.  The appeals
courts which have considered "shall" to be directory rather
than mandatory have done so to avoid the consequence of
dismissal.  It does not follow, however, that if a trial court is
required by statute to hear a forfeiture case within 30 days
of the filing of the answer and does not do so, it cannot hear
the case at all and must dismiss it.  The mandatory provision
affords the parties the right to compel the trial court to hear
the case promptly.  If a trial court refuses, the statute
provides a basis for relief by mandamus, but not for
dismissal.


$435,000 at 644.  The court further said:


	Based upon the following discussion, we conclude that
dismissal was improper.  Lovelace was entitled to a hearing
within thirty days and a prompt trial setting, and would have
been entitled to mandamus relief had the trial court refused
either; but she was not entitled to dismissal of the State's
action for the trial court's failure to consider the case
expeditiously.


Id. at 645.


	The case before us does not involve the time of the hearing. 
Rather, it involves diligence, or the lack thereof, in providing notice to
the owner of the attempted forfeiture.  Appellant requests a dismissal
based upon lack of diligence in service of citation.  She correctly points
out that service of citation was not completed until 167 days after the
filing of the suit for forfeiture.  She cites One 1991 Chevrolet Blazer v.
State, 905 S.W.2d 443 (Tex. App. ­ Amarillo 1995, no pet.) to support
her request for dismissal.

	If we were to apply the holding in $435,000, we would be forced
to rule that the lack of diligence in notice was not fatal because the
mandatory provision in the notice statute affords the parties the right to
compel the service of notice and the property owner had a basis for
relief by mandamus, but not for dismissal.  Such a holding would be
self-defeating.  A party should not be required to resort to mandamus
in order to receive notice of something he would have to allege he was
aware of in his petition for mandamus.  An elementary and fundamental
requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under the circumstances, to
apprise interested parties of the pendency of the action and afford them
the opportunity to present their objections.   Peralta v. Heights Medical
Center, Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 899 (1988).


	The Amarillo court in Chevrolet Blazer held, "we read article
59.04(b) as also mandating reasonable diligence in the service of
process."  Chevrolet Blazer, 905 S.W.2d  at 445.  The court further held
that the 140-day lapse in service of process was fatal to the state's
case.  We, likewise, hold that the 167-day delay in service of process
upon appellant herein requires a dismissal of the notice of seizure and
intent to forfeit.  The judgment is REVERSED and the cause remanded
to the trial court for proceedings commensurate with this opinion.


								NOAH KENNEDY

								Justice


Publish.

Tex. R. App. P. 47.3.



Opinion delivered and filed

this the 13th day of July, 2000.

.


1. Retired Justice Noah Kennedy assigned to this Court by the Chief
Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann.
§ 74.003 (Vernon 1998).

2. Tex. Penal Code Ann. Art. 725d § 5, since repealed in 1989.  The
present procedure, effective since October 18, 1989 no longer
prescribes a period for setting a hearing on forfeiture.

3. State v. Boren, 654 S.W.2d 547 (Tex. App. ­ Waco, 1983, no
writ).

4. Clark v. State, 693 S.W.2d 23 (Tex. App. ­ Beaumont 1985, no
writ).  

