



Ariza                                                               



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





ON MOTION FOR REHEARING






NO. 03-95-00216-CR





Ex Parte:  Augustine Ariza, Appellant







FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR94-241, HONORABLE WILLIAM E. BACHUS, JR., JUDGE PRESIDING





	On Motion for Rehearing, the State argues that the Court addressed in summary
fashion, without supporting authority, the critical issue of whether jeopardy attaches when the
owner of forfeited property fails to appear in the forfeiture proceeding. (1)  We write to elaborate
our holding that jeopardy did attach to the owner of the forfeited property under the circumstances
of this case.
	The State quite properly argues that we must find that jeopardy has attached before
there is any need to inquire into the punitive nature of the forfeiture.  Ex parte McAfee, 761
S.W.2d 771, 772-73 (Tex. Crim. App. 1988).  The State unconvincingly relies on the holding in
Serfass v. United States, 420 U.S. 377 (1975), a case dealing with a pre-trial motion to dismiss
the prosecution, to argue that jeopardy did not attach in the default forfeiture proceeding at issue
here.  
	We begin by noting that Serfass involved the Double Jeopardy Clause's protection
against a second prosecution for the same offense following an acquittal, 420 U.S. at 387-388,
while our case involves its protection against the distinct abuse of multiple punishments for the
same offense.  See United States v. Halper, 490 U.S. 435, 440 (1989).  When safeguarding
against multiple prosecutions, jeopardy does not attach until a defendant is "put to trial before the
trier of facts."  Serfass, 420 U.S. at 388 (citations omitted).    Because Serfass's motion to dismiss
the indictment came before trial, the court at that point had no jurisdiction to determine his
innocence or guilt; the court had jurisdiction only to grant or deny the motion to dismiss.  Because
the accused was never subjected to the risk of conviction, jeopardy did not attach.


Both the history of the Double Jeopardy Clause and its terms demonstrate that it
does not come into play until a proceeding begins before a trier "having
jurisdiction to try the question of the guilt or innocence of the accused."


Id. at  391 (citations omitted).  
	Because our case involves the distinct abuse of multiple punishments for the same
offense, the Serfass requirement that the accused must be "put to trial before the trier of facts,"
does not control when jeopardy attaches.  In Serfass, jeopardy did not attach because the accused
was never subjected to the risk of conviction.  By contrast, the trial court that conducted the civil
forfeiture proceeding had jurisdiction to and did forfeit the property of the accused.  Ariza's right
to assert the forfeiture as a bar to further punishment "attached" when the forfeiture order was
made.  
	The State argues that jeopardy did not attach because Ariza did not appear at the
forfeiture proceeding to assert his claim to the property.  The Fifth Circuit has recently
determined that jeopardy did not attach in a summary forfeiture proceeding to which a defendant
was not a party.  United States v. Arreola-Ramos, 60 F.3d 188 (1995).  The court announced that
when jeopardy is claimed, as a threshold issue we must determine whose property the government
acquired in the forfeiture proceeding.  "For it is axiomatic that there can be no punishment if the
property forfeited did not belong to the person claiming jeopardy."  Id. at 192.  The property
forfeited in Arreola-Ramos were funds allegedly acquired from a drug-related offense.  The
federal statute requires the government (1) to publish in the newspaper, once a week for three
successive weeks, notice of its intent to forfeit and, (2) to send notice of the seizure to any party
who appears to have an interest in the property.  19 U.S.C.A. § 1607(a) (West 1980 & Supp.
1995).  If a claimant timely files a claim, the government is required to commence a judicial
forfeiture proceeding.  However, if no claim is filed, the government simply makes an automatic
declaration of forfeiture and title is vested in the United States in an administrative proceeding. 
Arreola-Ramos involved this summary procedure, not a judicial forfeiture hearing.  
	The Fifth Circuit reviewed the record before it from the summary administrative
proceeding and determined that nothing in the record revealed who owned the funds at issue. 
Bound by the record, which conflicted with Arreola's later assertions (made in the criminal
proceedings) that the funds were his, the court felt constrained to hold that no one owned the
forfeited funds and therefore no one had been punished.  "Absent a trial, a party, and a
punishment, jeopardy can never attach."  Arreola-Ramos, 60 F.3d at 192.  
	The case before us can be distinguished from  Arreola-Ramos on several grounds. 
First, we are dealing with a judicial forfeiture proceeding, not a summary administrative
procedure.  Second, Arreola-Ramos involved proceeds of a drug transaction, which cannot legally
be "owned" by anyone.  United States v. Tilley, 18 F.3d 295, 300 (5th Cir. 1994), cert. denied,
__U.S.__, 115 S.Ct. 574 (1994).  Third, the federal forfeiture statute declares that no property
interest exists in property subject to forfeiture.  21 U.S.C.A. § 881(a) (West 1981 & Supp. 1995). 
By contrast, the Texas forfeiture statute presupposes an actual owner of property subject to
forfeiture.  See Tex. Code Crim. Proc. Ann. art. 59.04(b)(1) (West Supp. 1996).  Fourth and
most importantly, the record from the forfeiture proceeding before us does establish Ariza's
ownership interest in the truck.  This record distinguishes our case from Ramirez v. State, Nos.
01-95-00636-CR and 01-95-00637-CR (Tex. App.--Houston [1st Dist.] December 14, 1995, no
pet. h.), which involved a record from the forfeiture proceeding that was silent as to anyone's
ownership interest in the forfeited funds from a drug transaction.  Slip op. at 4.  The record
before the Ramirez court included only the agreed judgment from the forfeiture proceeding; it did
not in any way tie Ramirez to the forfeited funds.  Id.  The appellate court refused to assume that
Ramirez had any ownership interest in those funds, and thus found that in the absence of any
record of Ramirez's ownership interest, he was not punished by the forfeiture.  Id. at 4-5.  By
contrast, our record establishes Ariza's ownership interest in the forfeited truck.  For all these
reasons, we cannot say that Ariza's property was "unowned" by virtue of his failure to appear in
the forfeiture proceeding.  
	Because we answer the threshold question, that it was Ariza's truck that the
government acquired in the forfeiture proceeding, we hold that jeopardy did attach at that time. 
For the reasons outlined in our original opinion that the forfeiture, which was predicated on the
same offense charged in the indictment, constituted at least in part a punishment, we overrule the
motion for rehearing and adhere to our holding that the Double Jeopardy Clause bars any
subsequent criminal prosecution that could result in additional punishment for the same conduct.


  
					Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Jones and B. A. Smith
State's Motion for Rehearing Overruled
Filed:   January 24, 1996
Publish
1.        Because we believe that our original opinion sufficiently addresses the State's second point
on rehearing, that under the "same elements" test, the two offenses were different for purposes
of double jeopardy analysis, we do not further comment on that issue in this opinion.  



forfeited in Arreola-Ramos were funds allegedly acquired from a drug-related offense.  The
federal statute requires the government (1) to publish in the newspaper, once a week for three
successive weeks, notice of its intent to forfeit and, (2) to send notice of the seizure to any party
who appears to have an interest in the property.  19 U.S.C.A. § 1607(a) (West 1980 & Supp.
1995).  If a claimant timely files a claim, the government is required to commence a judicial
forfeiture proceeding.  However, if no claim is filed, the government simply makes an automatic
declaration of forfeiture and title is vested in the United States in an administrative proceeding. 
Arreola-Ramos involved this summary procedure, not a judicial forfeiture hearing.  
	The Fifth Circuit reviewed the record before it from the summary administrative
proceeding and determined that nothing in the record revealed who owned the funds at issue. 
Bound by the record, which conflicted with Arreola's later assertions (made in the criminal
proceedings) that the funds were his, the court felt constrained to hold that no one owned the
forfeited funds and therefore no one had been punished.  "Absent a trial, a party, and a
punishment, jeopardy can never attach."  Arreola-Ramos, 60 F.3d at 192.  
	The case before us can be distinguished from  Arreola-Ramos on several grounds. 
First, we are dealing with a judicial forfeiture proceeding, not a summary administrative
procedure.  Second, Arreola-Ramos involved proceeds of a drug transaction, which cannot legally
be "owned" by anyone.  United States v. Tilley, 18 F.3d 295, 300 (5th Cir. 1994), cert. denied,
__U.S.__, 115 S.Ct. 574 (1994).  Third, the federal forfeiture statute declares that no property
interest exists in property subject to forfeiture.  21 U.S.C.A. § 881(a) (West 1981 & Supp. 1995). 
By contrast, the Texas forfeiture statute presupposes an actual owner of property subject to
forfeiture.  See Tex. Code Crim. Proc. Ann. art. 59.04(b)(1) (West Supp. 1996).  Fourth and
most importantly, the record from the forfeiture proceeding before us does establish Ariza's
ownership interest in the truck.  This record distinguishes our case from Ramirez v. State, Nos.
01-95-00636-CR and 01-95-00637-CR (Tex. App.--Houston [1st Dist.] December 14, 1995, no
pet. h.), which involved a record from the forfeiture proceeding that was silent as to anyone's
ownership interest in the forfeited funds from a drug transaction.  Slip op. at 4.  The record
before the Ramirez court included only the agreed judgment from the forfeiture proceeding; it did
not in any way tie Ramirez to the forfeited funds.  Id.  The appellate court refused to assume that
Ramirez had any ownership interest in those funds, and thus found that in the absence of any
record of Ramirez's ownership interest, he was not punished by the forfeiture.  Id. at 4-5.  By
contrast, our record establishes Ariza's ownership interest in the forfeited truck.  For all these
reasons, we cannot say that Ariza's property was "unowned" by virtue of his failure to appear in
the forfeiture proceeding.  
	Because we answer the threshold question, that it was Ariza's truck that the
government acquired in the forfeiture proceeding, we hold that jeopardy did attach at that time. 
For the reasons outlined in our original opinion that the forfeiture, which was predicated on the
same offense charged in the indictment, constituted at least in part a punishment, we overrule the
motion for rehearing and adhere to our holding that the Double Jeopardy Clause bars any
subsequent criminal prosecution that could result in additional punishment for the same conduct.


  
					Bea Ann Smith, Justice
Before Chief Justice Carroll, Justices Jones and B. A. Smith
