
 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-90-140-CV



THE STATE OF TEXAS,

	APPELLANT

vs.



$8,353.00 U.S. CURRENCY,

	APPELLEE



 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. 462,464, HONORABLE JON N. WISSER, JUDGE PRESIDING

 



	The State appeals from an order of dismissal in a
forfeiture proceeding brought under the former provisions of the
Texas Controlled Substances Act. (1)   The trial court found that the
State failed to request a hearing within the thirty-day period
mandated by the Act, dismissed the suit with prejudice, and ordered
the return of funds to the claimant.  We must decide whether the
State's failure to request a hearing within thirty days deprived
the district court of its jurisdiction over the dispute.  We will
reverse the judgment and remand the cause.
	On April 6, 1989, the Austin Police Department seized
$8,353.00 from Johnny Wolridge (the claimant), Orelia Neely, and
Alvarado Hardeman.  The State filed a notice of seizure and
intended forfeiture, and criminal charges against the three.  The
State alleged that the money seized was derived from the sale,
manufacture, distribution, dispensation, delivery, or other
commercial undertaking in violation of the Texas Controlled
Substances Act. 
	Neely and Hardeman answered the lawsuit, but later agreed
to judgments awarding their interest in the seized currency to the
State.  The claimant filed his verified general denial on May 18,
1989.  On July 26, 1989, claimant filed a motion seeking dismissal
of the cause for want of jurisdiction and an order releasing the
property to him.  
	On August 18, 1989, a trial judge heard the merits of the
claimant's motion.  The claimant argued that the cause should be
dismissed because the Act required the State to request a trial
setting within thirty days after the claimant filed his answer, and
the State had not complied.  Act § 5.07(a) (repealed 1989).  This
judge ruled that the statute was directory and not mandatory, but
ordered that the cause be set for hearing within thirty days or be
dismissed with prejudice.  On agreement of the parties, the time
for hearing was later extended until October 31, 1989.
	On March 13, 1990, the cause was called for a trial on
the merits before another judge.  Again, claimant urged that the
cause should be dismissed because no hearing had been set within
the statutory thirty days.  The trial court dismissed the cause
with prejudice.  The parties agree that the order, as well as the
findings of fact and conclusions of law, makes clear that the cause
was not dismissed for failure to prosecute, or for failure to
comply with the first judge's order, but solely on the ground that
the court lacked jurisdiction because a hearing had not been set
within thirty days of the claimant's filing an answer, as the
statute required.   
	Former section 5.07(a) provided in relevant part:


An owner of property, other than a controlled substance
or raw material, that has been seized shall file a
verified answer within 20 days of the mailing or
publication of notice of seizure.  If no answer is filed,
the court shall hear evidence that the property is
subject to forfeiture and may upon motion forfeit the
property to the state . . . .  If an answer is filed, a
time for hearing on forfeiture shall be set within 30
days of filing the answer and notice of the hearing shall
be sent to all parties.


(Emphasis added.)
	The State argues that the trial court erred in dismissing
the cause because the statutory provision for setting a hearing is
directory rather than mandatory.  Failure to follow a mandatory
provision renders a proceeding void; failure to observe a directory
provision, on the other hand, does not invalidate a  proceeding. 
Kessler v. Texas Employers' Ins. Ass'n, 421 S.W.2d 133, 137 (Tex.
Civ. App. 1967, writ ref'd n.r.e.).  The State contends that the
statute encourages timely forfeiture hearings, but does not deprive
the court of jurisdiction after thirty days.  We agree that the
trial court's failure to set a hearing neither deprives it of
jurisdiction to hear the cause nor deprives the State of its right
to assert and prosecute its cause of action.  Cases addressing this
issue conflict, but the text of the statute and the division of
responsibilities between courts and prosecutors argue in favor of
a directory construction.  
	In determining whether a particular usage is mandatory or
directory, the entire Act should be considered, including the
object and nature of the Act, along with the consequences of either
interpretation.  Ramirez v. State, 550 S.W.2d 121, 124 (Tex. Civ.
App. 1977, no writ).
	The text's ambiguities and omissions suggest that the
thirty-day provision is directory.  The statute's passive voice
leaves unstated who is responsible for meeting the thirty day
deadline:  "a time . . . shall be set."  The statute does not state
who must request the hearing or specify a period of time within
which the hearing must be held; it states only that a time for
hearing must be set within thirty days.   But see State v. Boren,
654 S.W.2d 547, 548-49 (Tex. App. 1983, no writ) (the hearing must
be set and held within thirty days).  Further, although the thirty-day period starts running after filing of "an answer," the statute
does not specify from whose answer the thirty days will be
calculated if there are multiple defendants who respond at
different times.  In a forfeiture proceeding, a verified answer
filed after the twenty-day period, but before rendition of a
default judgment, has been held to be timely.  See 4 Acres of Real
Property v. State, 740 S.W.2d 494, 497 (Tex. App. 1987, no writ). 
Thus, filing of a late answer could extend the period of delay
before the thirty-day period begins to run.
	All of these factors suggest that the statute is
directory.  In addition, former § 5.07(a) does not specify a
penalty for failure to request or to set a hearing.  In particular,
the statute does not suggest that the court's jurisdiction depends
upon satisfaction of the thirty-day requirement.  When a statute
creates a cause of action and prescribes the remedy for its
enforcement, its provisions are mandatory.  See Mingus v. Wadley,
285 S.W. 1084, 1087 (Tex. 1926).  An act that reveals no such
purpose, however, will be construed as directory.  Thomas v.
Groebl, 212 S.W.2d 625, 631 (Tex. 1948).
	That the statute uses the word "shall" is not
dispositive, of course, because that term has frequently been held
to be directory, rather than mandatory.  Lewis v. Jacksonville
Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976).  Particularly
if the provision is intended simply to promote prompt and orderly
business conduct, the word "shall" is construed not to be
mandatory.  Ramirez, 550 S.W.2d at 124.
	Besides the wording of the text, an analysis of the
discretionary functions of trial courts and prosecutors suggests
that the phrase "shall be set" cannot properly be construed to mean
that if the judge fails to set a hearing within thirty days, the
court will lose jurisdiction over the action.  Courts in Texas
traditionally have claimed broad inherent and implied authority. 
See Bruff, Separation of Powers Under the Texas Constitution, 68
Texas L. Rev. 1337, 1348 (1990).  The Texas Supreme Court has
defined the courts' inherent powers broadly as "those which it may
call upon to aid in the exercise of its jurisdiction, in the
administration of justice, and in the preservation of its
independence and integrity."  Eichelberger v. Eichelberger, 582
S.W.2d 395, 398 (Tex. 1979).
	Certain judicial functions require that the courts alone
determine how those functions are to be exercised.  Armadillo Bail
Bonds v. State, 802 S.W.2d 237, 240 (Tex. Cr. App. 1990).  Managing
a docket is one of the basic duties of a judge; only a court, not
a party or a prosecutor, can set a cause for hearing.  Thus, even
though a statute may be couched in mandatory terms, when it directs
judicial action, a sound rule of statutory construction favors the
interpretation of the statute as directory rather than as mandatory
to preserve the exercise of the court's judicial discretion.  2A
Singer, Sutherland Statutory Construction § 57.16, at 677 (4th ed.
1984).  Appellee's construction of former § 5.07(a) would require
specific trial court action within a short time, and its failure to
so act would destroy its jurisdiction over the cause and deprive
the State of its right of action.  We hold otherwise.
	We agree with the courts of appeals that have construed
former § 5.07(a) to be directory and not mandatory.  See State v.
One 1988 Nissan Pickup, 804 S.W.2d 957 (Tex. App. 1991, no writ);
State v. 1985 Chevy PU, 797 S.W.2d 682, 685 (Tex. App. 1990, no
writ); Boren, 654 S.W.2d at 549;  see also McKee v. State, 318
S.W.2d 113, 116-17 (Tex. Civ. App. 1958, writ ref'd n.r.e.)
(construing same provision of 1925 Penal Code).  
	"[T]he State has no control of this setting and is
basically at the mercy of the judge and his staff to see the case
is timely set."  1985 Chevy PU, 797 S.W.2d at 685.  Because the
trial court has discretion to manage its docket, the statute should
not be construed to punish the State for a judge's failure to set
a hearing.  Time limits are likely to be directory when a mandatory
construction would injure persons not at fault or would compromise
the public interest.  See 2A Singer, supra, § 57.19, at 682. 
	We decline to follow the cases cited by claimant in
support of a mandatory construction.  See, e.g., State v. One (1)
1986 Nissan Auto., 792 S.W.2d 577, 579 (Tex. App. 1990, no writ);
Lovelace v. Downey, 783 S.W.2d 824, 826 (Tex. App. 1990, no writ). 
Claimant also relies on a case that has been overruled. State v.
$4,097 in U.S. Currency, 773 S.W.2d 674 (Tex. App. 1989, writ
den.), overruled, 1985 Chevy PU, 797 S.W.2d 682.  Several cases
cited by appellee were based on the holding of $4,097 in U.S.
Currency.  See Lopez v. State, 797 S.W.2d 272, 273 (Tex. App. 1990,
writ den.); One (1) 1986 Nissan Auto, 792 S.W.2d at 578.
	Finally, we reject the claimant's argument that unless
§ 5.07(a) is mandatory, the State could seize property and postpone
hearings on the lawfulness of the seizures indefinitely.  Even
under the claimant's reading of the statute, there is potential for
delay.  The statute, of course, does not specify a period of time
within which the cause must be heard. (2)  Presumably the trial court
is free to set the hearing for a date years later, so long as it
makes that setting within thirty days, so "[w]hy hold the setting
language to be mandatory when the actual hearing date has no
limits?"  1985 Chevy PU, 797 S.W.2d at 684.  
	In addition, there are alternative ways to guard against
indefinite delay, short of the drastic remedy of divesting the
trial court of jurisdiction.  Although the State may be obligated
to seek the setting, the claimant also may request a hearing; the
statute does not require the claimant to wait for the State to make
a request.  Further, the trial court may set the cause for hearing
without waiting for a request from any party.  In addition, the
court eventually may order the forfeiture suit dismissed for want
of prosecution if the State unduly delays.  See Tex. R. Civ. P.
Ann. 165a (Supp. 1991).
	The order of the trial court dismissing the suit is
reversed and the cause remanded to the trial court with
instructions to reinstate this case consistent with this opinion.


  
					Marilyn Aboussie, Justice
[Before Justices Powers, Aboussie and Kidd]
Reversed and Remanded
Filed:  May 8, 1991
[Publish] 
1.        Texas Controlled Substances Act, 1973 Tex. Gen. Laws, ch.
429, § 5.04, at 1159 (Act § 5.04); 1983 Tex. Gen. Laws, ch. 425, §§
18-24, at 2394-2415 (Act §§ 5.03, .05, .06, .07, .08); 1985 Tex.
Gen. Laws, ch. 227, §§ 11, 13, 14, at 1123-25 (amending Act §§
5.03(a), .07(a), .08(b), (f)); 1987 Tex. Gen. Laws, ch. 525, § 2,
at 2134 (amending Act § 5.08(a)) [Tex. Rev. Civ. Stat. art. 4476-15, § 5.03-.08, since repealed and codified at Tex. Code Cr. P.
Ann. arts. 59.01-.10 (Supp. 1991)].  The new forfeiture provisions,
effective October 18, 1989, do not now contain the thirty-day
hearing provision (former § 5.07(a)) at issue in this case.
2.        The only case holding that a hearing must be conducted
within 30 days also construed the statute to be directory and held
the claimant had failed to show that he had been harmed by the
failure to convene the hearing within 30 days.  State v. Boren, 654
S.W.2d at 549.  We disagree that the statute directs the hearing to
be held in thirty days, because § 5.07(a) only refers to a setting;
it does not specify when the hearing must be conducted.
