
                           NO. 07-10-0039-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                            FEBRUARY 1, 2011







         SIX THOUSAND NINETY FIVE DOLLARS AND EIGHTY-FIVE CENTS
           U.S. CURRENCY ($6,095.85) (JAMES ORTIZ), APPELLANT


                                   V.


                      THE STATE OF TEXAS, APPELLEE





            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

              NO. 60,312-B; HONORABLE JOHN B. BOARD, JUDGE






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


                           MEMORANDUM OPINION

      Appellant, Six  Thousand  Ninety  Five  Dollars  and  Eighty-Five
Cents U.S. Currency ($6,095.85) (James Ortiz)  ("Ortiz"),  appeals  the
trial court's order granting summary judgment in the State's  favor  in
a proceeding seeking forfeiture of $6,095.85, pursuant  to  Chapter  59
of the Texas Code of Criminal Procedure.[1]  In two  points  of  error,
Ortiz asserts the  State's  evidence  in  support  of  its  motion  for
summary judgment  was  (1)  legally  and  (2)  factually  insufficient.
Because  we  lack  subject  matter  jurisdiction,   we   dismiss   this
appeal.[2]

                 Subject Matter Jurisdiction---Standing

      A threshold question  in  any  case  is  whether  the  court  has
subject matter jurisdiction over the pending controversy.  Texas  Ass'n
of Business v. Texas Air Control Bd.,  852  S.W.2d  440,  443-44  (Tex.
1993).  Standing is a constitutional prerequisite  to  maintaining  any
suit; South Texas Water Authority v. Lomas, 223 S.W.3d 304,  307  (Tex.
2007), without which a court lacks subject matter jurisdiction to  hear
a case.  Austin Nursing Center, Inc. v. Lovato,  171  S.W.3d  845,  849
(Tex. 2005);  Potter  County  Attorney's  Office  v.  Stars  &  Stripes
Sweepstakes, L.L.C., 121 S.W.3d 460, 467 (Tex.App.--Amarillo  2003,  no
pet.).[3]   Standing  must  exist  at  every   stage   of   the   legal
proceedings, including appeal; Williams v. Lara,  52  S.W.3d  171,  184
(Tex. 2001), and may be raised by the court sua sponte  for  the  first
time on appeal.  Univ. of Texas Sw.  Med.  Ctr.  v.  Loutzenhiser,  140
S.W.3d 351, 358 (Tex.  2004).   Whether  a  court  has  subject  matter
jurisdiction is a question of  law  that  we  review  de  novo.   First
National Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010).

      Chapter 59 authorizes the State to  pursue  forfeiture  of  funds
that constitute proceeds  from  illegal  drug  trafficking.   See  art.
59.01-.14.  A forfeiture proceeding under Chapter 59 is a civil en  rem
proceeding governed by the procedural rules applicable to civil  trials
and appeals generally.  State v. Silver Chevrolet  Pickup,  140  S.W.3d
691, 692 (Tex. 2004) (per curiam).  See art.  59.05(a),  (b).   In  the
statutory scheme, property, including currency, is subject  to  seizure
and forfeiture if  it  is  found  to  be  contraband.   Art.  59.02(a).
Contraband is property used or intended to be used  in  the  commission
of certain felonies, or proceeds derived  from  those  felonies.   Art.
59.01(2)(A)-(D).  See Silver Chevrolet Pickup, 140 S.W.3d at 692.

      "Standing focuses on the  question  who  may  bring  an  action."
Patterson v. Planned Parenthood,  971  S.W.2d  439,  442  (Tex.  1992).
Although a person need only be in possession of  the  property  at  the
time it was seized to be made a party  to  the  forfeiture  proceeding;
art. 59.04(j), only property  "owners"  or  "interest  holders"[4]  are
permitted to challenge the forfeiture of property to the  State.   Art.
59.02(h)(1).[5]  A person must also be either an "owner"  or  "interest
holder" of the forfeited property to have  standing  to  challenge  the
forfeiture on appeal.  See $27,920.00 v.  State,  37  S.W.3d  533,  538
(Tex.App.--Texarkana 2000,  pet.  denied);  $17,329.00  v.  State,  880
S.W.2d 788, 789 (Tex.App.--Houston [1st Dist.] 1993, no writ).

      Throughout the proceedings below, Ortiz  consistently  maintained
that his mother owns the cash at issue.   In  his  motion  for  summary
judgment and motion for a new trial filed  with  the  trial  court,  he
stated the money belongs to his mother.  On  appeal,  he  continues  to
aver in his brief and an attached statement that the money  belongs  to
his  mother.   Having  asserted  no  property  interest,  ownership  or
otherwise, in the money at issue, Ortiz lacks standing  to  appeal  its
forfeiture  to  the  State.   See  $27,920.00,  37   S.W.3d   at   538;
$17,329.00, 880 S.W.2d at 789.

                               Conclusion

      Lacking subject matter jurisdiction of Ortiz's claim, we  dismiss
this appeal.



                                             Patrick A. Pirtle
                                                   Justice
-----------------------
[1]For convenience, Chapter 59 of the Texas Code of Criminal  Procedure
will be cited throughout the remainder  of  this  opinion  as  "Chapter
59," and provisions of the Texas Code of  Criminal  Procedure  will  be
cited as "article _______"  or  "art.  _______."   See  art.  59.01-.14
(West 2006 and West Supp. 2010).

[2]"When a court lacks jurisdiction, its only legitimate choice  is  to
dismiss."  In re John G., 315 S.W.3d  519,  522  (Tex.  2010)  (quoting
State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994)).

[3]The standing requirement, implicit in the open courts  provision  of
the Texas Constitution, Tex. Const. art. I, § 13 ("All courts shall  be
open, and every person for an injury done to him, in his lands,  goods,
person or reputation, shall have a remedy  by  due  course  of  law."),
contemplates access to the courts only for  those  litigants  suffering
actual injury.  The M.D. Anderson Cancer Center  v.  Novak,  52  S.W.3d
704, 708 (Tex. 2001).

[4]For purposes of Chapter 59, an "owner" is "a person  who  claims  an
equitable or legal ownership interest in property"; art. 59.01(6),  and
an "interest holder" is a "bona fide holder  of  perfected  lien  or  a
perfected security interest in the property.  Art. 59.01(4).

[5]Chapter 59 states, in pertinent part, as follows:

      (h)(1) An owner or interest holder's interest in property may not
      be forfeited under this chapter if at the forfeiture hearing  the
      owner or  interest  holder  proves  by  a  preponderance  of  the
      evidence that the owner or interest holder was not a party to the
      offense giving rise to the forfeiture and that the contraband;

      (A) was stolen from the owner or  interest  holder  before  being
      used in  the  commission  of  the  offense  giving  rise  to  the
      forfeiture;

      (B) was purchased with:

           (i) money stolen from the owner or interest holder; or

           (ii) proceeds from the sale of property stolen from the
      owner or interest holder; or

      (C) was used or intended to be used without the effective consent
      of the owner or interest holder in the commission of the  offense
      giving rise to the forfeiture.



