                          In the
                     Court of Appeals
             Second Appellate District of Texas
                      at Fort Worth
                   ___________________________
                        No. 02-18-00303-CV
                   ___________________________

$2,424.21 IN U.S. CURRENCY AND 2013 VOLKSWAGEN PASSAT, Appellant

                                  V.

                  THE STATE OF TEXAS, Appellee



              On Appeal from Criminal District Court No. 4
                         Tarrant County, Texas
                     Trial Court No. S-13438-17


                Before Pittman, Bassel, and Womack, JJ.
               Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                     I. INTRODUCTION

      In this civil forfeiture proceeding, Stanley Taplin appeals the forfeiture of cash

of $2,424.21 and a 2013 Volkswagen Passat. In one issue, Taplin contends that the

trial court abused its discretion in denying his motion for continuance because he was

not provided with forty-five days’ notice of the first trial setting as required under

Texas Rule of Civil Procedure 245. Tex. R. Civ. P. 245. We agree and reverse and

remand for a new trial.

                                     II. BACKGROUND

      On January 19, 2017, the State of Texas filed its “Notice of Seizure and

Intended Forfeiture,” wherein it sought forfeiture of $2,424.21 and a 2013

Volkswagen Passat pursuant to Chapter 59 of the Texas Code of Criminal Procedure.

The “[p]otential owners, [l]ienholders [or] [o]thers [w]ith [i]nterest” of the property

were identified as Stanley Taplin.

      On June 26, 2018, the State filed its “Motion to Set Hearing on the Merits.”1

By posting on August 3, 2018,2 the trial court set the matter for an August 23, 2018



      1
        “Notice that a case is going to trial does not equate to notice of when the case
is going to trial.” In re J.B., 93 S.W.3d 609, 615 (Tex. App.—Waco 2002, pet. denied).
      2
       The “Notice for Hearing on the Merits” does not indicate the date that it was
signed by the trial judge. In addition, it does not reflect how the notice was served on
Taplin. While it contains the handwritten notation “M&P 8-6-18 MS,” there is no
explanation in the record regarding what this means.
                                            2
“hearing on the merits” in the magistrate’s courtroom.3 Thereafter, on August 16,

2018 and August 22, 2018, Taplin filed a verified motion for continuance of the

matter. Both motions, which appear to be identical, state that Taplin is:

       incarcerated in the Tarrant County Jail [and] ha[s] no knowledge of this
       hearing and this hearing is not in the court record of the Sheriff Dept.
       And I am the Pro Se Respondent, and I will be unable to appear unless
       you issue an order . . . . And I don’t have funds to employ counsel. . . .
       I am wholly unfamiliar [with] criminal law and I have no training or
       experience but I would like to be present[,] and it is a 4th amendment
       right of mine.

In addition, Taplin notes that it is his first motion for continuance.

       At the August 23, 2018 trial, Taplin urged his motion for continuance. After

the magistrate called the case for trial, the following transpired:

       [STATE’S ATTORNEY]: Mr. Taplin filed a motion for continuance
       with the Court on August 16th and August 22nd.

       [THE COURT]: Okay.

       [STATE’S ATTORNEY]: Mr. Taplin, it’s your motion.

       [TAPLIN]: I had wrote the Court update, and they had told me they
       weren’t going to bring me to court. And so that’s why I filed the
       motion.

       [THE COURT]: Okay.

       3
         A judge may refer to a magistrate any criminal case or matter relating to a
criminal case for proceedings involving “an asset forfeiture hearing as provided by
Chapter 59, Code of Criminal Procedure.” Tex. Gov’t Code Ann. § 54.656(a)(8). In
addition, “[a] judge may refer to a magistrate a civil case arising out of Chapter 59,
Code of Criminal Procedure, for any purpose authorized by that chapter,
including . . . presiding over a case on the merits if a party has not requested a jury
trial.” Id. § 54.656(b).

                                             3
      [TAPLIN]: I wasn’t in the court proceeding with the court records to
      come to court.

      [THE COURT]: Okay. But you’re here now, so what are you wanting
      to do? Are you still wanting a continuance, or are you - - you were just
      concerned you weren’t going to be able to be here; is that what you’re
      telling me?

      [TAPLIN]: Yes, ma’am.

      [THE COURT]: Okay. So are you withdrawing your motion?

      [TAPLIN]: Well, I don’t have my - - I don’t have the documents that I
      need. I mean - -

      [THE COURT]: Okay.

      [TAPLIN]: And so I still would like to get a continuance.

      After the State’s attorney stated its objection to a continuance, the Court

announced that it was denying the motion and moving forward with the hearing.

However, Taplin persisted:

      [TAPLIN]: Your Honor, like I said, I’m not really familiar with the civil
      - - civil law and everything. And I had asked could I be appointed a - -

      [THE COURT]: Not - - not in these proceedings. You don’t have the
      right to a court appointed attorney, okay? All right. Go ahead.

      The trial proceeded. At the conclusion of the trial, the magistrate stated, “I will

grant the forfeiture of the $2,424.21 and the Volkswagen Passat.” Thereafter, on

August 23, 2018, a judgment was signed forfeiting $969.68 plus interest to the Tarrant

County Criminal District Attorney’s Law Enforcement Fund, and $1,454.53 plus

interest and a 2013 Volkswagen Passat and its contents to the State of Texas, “to be
                                           4
administered by the attorney representing the State of Texas, pursuant to the

applicable local agreements with the F[ort] W[orth] P[olice] D[epartment].” Taplin

appeals from this judgment.

                                   III. DISCUSSION

A.    Standard of Review

      We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).

We do not substitute our judgment for the trial court’s. In re Nitla S.A. de C.V.,

92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we must determine

whether the trial court’s action was so arbitrary and unreasonable that it amounts to a

clear and prejudicial error of law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,

161 (Tex. 2004). The test is whether the trial court acted without reference to guiding

rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004) (quoting

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).

B.    Analysis

      1.     Forty-five days’ notice of a first trial setting is mandatory.

      Taplin urges this court to “reverse the final judgment in this case because he

was given less than forty-five days’ notice of the first trial setting in violation of

Rule 245 of the Texas Rules of Civil Procedure[,] and this was harmful reversible error

because he was not being given enough time to be prepared and to hire an attorney.”

The State responds that Taplin “failed to timely and specifically object that he
                                           5
received insufficient notice of the trial setting.” Alternatively, it argues that Taplin

waived the error, if any, by appearing and participating in the forfeiture hearing.

         Rule 245 provides, in part:

                  The Court may set contested cases on written request of any
         party, or on the court’s own motion, with reasonable notice of not less than
         forty-five days to the parties of a first setting for trial, or by agreement of the
         parties; provided, however, that when a case previously has been set for
         trial, the Court may reset said contested case to a later date on any
         reasonable notice to the parties or by agreement of the parties.
         Noncontested cases may be tried or disposed of at any time whether set
         or not, and may be set at any time for any other time.

Tex. R. Civ. P. 245 (emphasis added). While Rule 245 requires that a party in a

contested case receive notice of not less than forty-five days for a first trial setting,

here the record demonstrates that, at most, Taplin received twenty days’ notice of

trial.

         Compliance with the rule has been called “mandatory.” Custom-Crete, Inc. v. K-

Bar Services, Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio 2002, no pet.); Bell

Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex. App.—Texarkana 1993,

writ denied); see Campos v. Nueces County, No. 13-07-488-CV, 2008 WL 331067, at *2

(Tex. App.—Corpus Christi 2008, no pet.) (mem. op.); see also Fifteen-Thousand One-

Hundred Ninety-Six Dollars v. State, No. 03-16-00015-CV, 2016 WL 6833102, at *3

(Tex. App.—Austin Nov. 17, 2016, no pet.) (mem. op.) (holding twenty-nine days’

notice of the default judgment hearing instead of the forty-five days’ notice required

by Rule 245 was reversible error). And, a trial setting that does not comply with the

                                                 6
rule has been deemed “ineffectual.” See Custom-Crete, Inc., 82 S.W.3d at 659 (citing Bell

Helicopter Textron, Inc., 863 S.W.2d at 140).

       Some courts have gone even further than the “mandatory” language and have

described inadequate notice of a trial setting as “constitutionally infirm.” Raines v.

Gomez, 118 S.W.3d 875, 876 (Tex. App.—Texarkana 2003, no pet.). In Raines, the trial

court issued a scheduling order which included a trial date less than forty-five days

from the date the court issued its notice of the trial. Id. In reversing the judgment,

the court held:

              Due process requires that a party to a lawsuit receive reasonable
       notice of a trial setting. In re J.B., 93 S.W.3d 609, 615 (Tex. App.—Waco
       2002, [pet. denied]) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,
       84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); In re Marriage of Parker,
       20 S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.)). A judgment
       that is entered without proper notice to the parties is constitutionally
       infirm. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896,
       99 L.Ed.2d 75 (1988).
Id.; see also Grant v. Grant, No. 04-12-00315-CV, 2015 WL 5438949, at *3 (Tex. App.—

San Antonio Sept. 16, 2015, no pet.) (mem. op.) (stating that a “trial court’s failure to

comply with the notice rule in a contested case deprives a party of the constitutional

right to be present at the hearing, to voice objections, and is a violation of

fundamental due process[]”); Custom-Crete, Inc., 82 S.W.3d at 659 (stating that the

failure to give the required notice constitutes lack of due process and is grounds for

reversal); Brosseau v. Ranzau, 28 S.W.3d 235, 239 (Tex. App.—Beaumont 2000, no pet.)




                                                7
(holding that a party’s due process rights are violated when he does not receive

adequate notice of a hearing or trial setting).

       There are many consequences to the failure to give sufficient notice of a trial

setting—the inability to request a jury, the inability to have the matter heard by the

trial judge instead of the magistrate, and the inability to secure discovery through the

rules of civil procedure. The first of these, the inability to timely request a jury,

occurred in Bell Helicopter. There, the notice of the trial setting made it impossible for

Bell, after receiving notice of the setting, to comply with the time limit for paying a

jury fee under Rule 216. Bell Helicopter Textron, 863 S.W.2d at 141; see Tex. R. Civ. P.

216. In reversing the trial court’s judgment and remanding for new trial, the court

noted that Rule 245 was amended in order to harmonize it with Rule 216 and to

require notice of a trial setting before the time for demanding a jury. Bell Helicopter

Textron, 863 S.W.2d at 141.

       Second, the inability to request a jury can impact whether a magistrate can hear

a matter. A trial judge may refer an asset forfeiture proceeding to a magistrate for any

matter, including a trial, unless the party requests a jury. Tex. Gov’t Code Ann.

§ 54.656(b). Shortening the notice of trial to less than thirty days allows insufficient

time to request a jury pursuant to Rule 216.

       Third, lack of adequate notice affects the ability to request and secure discovery

under the rules of civil procedure. See Tex. R. Civ. P. 194.3 (providing generally that

the responding party must serve a written response on the requesting party within
                                             8
thirty days after service of request for disclosure); Tex. R. Civ. P. 196.2 (providing

generally that the responding party must serve a written response on the requesting

party within thirty days after service of request for production); Tex. R. Civ. P. 197.2

(providing generally that a responding party must serve a written response on the

requesting party thirty days after service of interrogatories); Tex. R. Civ. P. 198.2

(providing generally that a responding party must serve a written response on the

requesting party within thirty days after service of request for admissions); Tex. R.

Civ. P. 205.3(a) (providing that a party may compel production of documents and

tangible things from a nonparty by serving “a reasonable time before the response is

due but no later than 30 days before the end of any applicable discovery period” the

notice required in Rule 205.2 and a subpoena compelling production or inspection of

documents or tangible things); Tex. R. Civ. P. 200.1(a) (providing that a notice of

intent to take the deposition upon written questions must be served on the witness

and all parties at least twenty days before the deposition is taken). Even where the

rules do not prescribe a definite time period for discovery, a “reasonable time” is

often imposed before discovery can occur. See Tex. R. Civ. P. 199.2(a) (providing that

a notice of intent to take an oral deposition must be served on the witness and all

parties a “reasonable time” before the deposition is taken).

      Therefore, we agree that the forty-five days’ notice requirement of a first trial

setting is mandatory. Further, failure to give the notice implicates other deadlines

under the Texas Rules of Civil Procedure.
                                            9
       2.     Denial of the motion for continuance was an abuse of discretion.

       While we agree that forty-five days’ notice of the initial trial setting is

mandatory, we next address whether the denial of the motion for continuance was

error. The State argues that Taplin did not specifically and timely object to the notice

of the trial setting and, alternatively, waived any error by participating in the hearing

and failing to allege insufficient notice.

       However, both in writing and orally, Taplin urged the trial court to grant him a

continuance. While he did not specifically cite the provisions of Rule 245, he did state

in his written motion that he had “no knowledge of this hearing and this hearing is

not in the court record of the Sheriff Dept.” At trial, he stated that he did not “have

the documents that [he] need[ed,]” and “would like to get a continuance.”

       Further, in addition to his complaint about needing documents, Taplin

repeatedly complained about not having an attorney and not understanding both

criminal and civil law. Rule 253 provides:

               Except as provided elsewhere in these rules, absence of counsel
       will not be good cause for a continuance or postponement of the cause
       when called for trial, except it be allowed in the discretion of the court,
       upon cause shown or upon matters within the knowledge or information of the
       judge to be stated on the record.

Tex. R. Civ. P. 253 (emphasis added). This court has previously held that if it was an

abuse of discretion not to give an incarcerated litigant sufficient time to hire a new

attorney then it is “surely error not to allow him enough time to hire an attorney in

the first place.” McMeekin v. McMeekin, No. [0]2-05-00118-CV, 2006 WL 820399, at
                                             10
*2 (Tex. App.—Fort Worth Mar. 30, 2006, no pet.) (mem. op.). Further, since the

judge set the matter for trial, the less-than-forty-five days’ notice of the trial setting

was “within the knowledge or information of the judge.” Tex. R. Civ. P. 253.

       We note that, as the State argues, error can be waived from the trial court’s

failure to provide proper notice under Rule 245 if a party proceeds to trial and fails to

object to the lack of notice. Custom-Crete, Inc., 82 S.W.3d at 658; see also Padilla v.

Comm’n for Lawyer Discipline, 87 S.W.3d 624, 626 (Tex. App.—San Antonio 2002, pet.

denied) (holding that lack of notice was waived where “our review of the record

revealed no specific complaint based on rule 245 or inadequate notice[]”). “Notice

under Rule 245 can indeed by waived if a party who is actively litigating the case did

not receive the full notice but proceeded to trial without objection.”         Morales v.

Marquis, No. 13-12-00407-CV, 2013 WL 2298469, at *2 (Tex. App.—Corpus Christi

May 23, 2013, no pet.) (mem. op.). Similarly, a party may waive a complaint by failing

to take action when a party receives some, but less than forty-five days’ notice. Id.

And, as argued by the State, Taplin did not specifically mention Rule 245 or the lack

of forty-five days’ notice before the trial setting.

       However, Taplin did take action by both requesting a continuance in writing

and orally at trial. In addition, in both of his verified motions for continuance, he

argues that he had “no knowledge of this hearing and this hearing is not in the court

record of the Sheriff Dept.” In his written motion, he points out that he is “wholly

unfamiliar” with criminal law. At trial, he also stated that he did not have the
                                             11
documents that he needed, and he was not familiar with civil law. While Taplin also

mentioned an “appointed . . . ,” he was interrupted and not allowed to finish by the

magistrate.

      And, while Taplin did appear at the trial, this alone is not dispositive of the

waiver issue.4 In In re K.M.L., the supreme court faced a similar allegation of waiver

based on the father’s appearance at the parental rights termination trial. 443 S.W.3d

101 (Tex. 2014). The father “appeared at trial under subpoena and, according to his

testimony, was driven by a district attorney or possibly a police officer.” Id. at 119.

Despite the argument that the father waived notice by appearing at trial, participating

in all four days of trial and not moving for a continuance, the court held, “The due

process requirement of notice must be provided ‘at a meaningful time and in a

meaningful manner.’” Id. at 119–20 (citing Mathews v. Eldridge, 424 U.S. 319, 333,

96 S. Ct. 893, 47 L.Ed.2d 18 (1976)). In reversing the judgment and remanding the

case for a new trial, the court stated, “Based on the record before us, we cannot

conclude that [father] voluntarily, knowingly, and intelligently waived his due process

right to notice of trial by sitting, under subpoena, through trial without help from

counsel and failing to formally move for continuance.” Id. at 120. “This lack of

notice renders any judgment unenforceable and void.” Id.



      4
       Taplin notes in his brief that he “was made available at trial by the State
because he was an incarcerated prisoner and the State could make him available.”

                                          12
         And, while he did appear at trial, Taplin never stated a readiness to proceed to

trial.   In Custom-Crete, the non-attorney corporate representative of the appellant

appeared at the hearing and stated that he was ready to proceed. 82 S.W.3d at 658–

59. In Fifteen Thousand One-Hundred Ninety-Six Dollars, the court reversed the trial

court’s judgment of forfeiture when the party from whom contraband was seized did

not “in any way represent[] readiness to proceed.” 2016 WL 6833102, at *2. And, the

error was “apparent on the face of the record.” Id. at *4.

         Further, some courts have held that specific reference to Rule 245 is not always

required before reversing a trial court for failure to give forty-five days’ notice of a

first trial setting. In Campos, 2008 WL 331067, at *1, the court was faced with an

appeal from the trial court’s denial of a motion for continuance where Rule 245 was

not specifically mentioned. As summarized by the court,

         In the instant case, appellants’ counsel, upon being informed of the
         initial trial setting, immediately sent a letter to the court and opposing
         counsel stating that he “did not receive any notification that the . . .
         cause was under consideration for scheduling for final hearing or
         trial . . . .” Counsel filed a verified motion for continuance and stated in
         his notice that he “was not contacted by anyone prior to receiving
         notification of the setting of the final hearing in the above styled and
         numbered cause.” At the motion for continuance hearing, counsel
         argued to the trial court that there had “been no docket control
         conference or other setting in this matter” and that “we went straight
         from completing service on the defendants to establishing a trial date,
         and then some weeks later, notifying me as to the trial date.”

Id. at *3. The court concluded that this was sufficient specificity to make the trial

court aware that he was objecting to failure to receive proper notice. Id. “We do not

                                             13
believe the spirit of Texas Rule of Appellate Procedure 33.1 is violated if a party

timely objects to improper notice of a trial setting, but fails to mention the specific

rule number.” Id.

       In this case, Taplin did appear at the trial. However, he never stated that he

was ready to proceed. On the contrary, he repeatedly, both orally and in writing,

asked for a continuance. Based on the record before us, we hold that error was

preserved because Taplin, in addition to requesting a continuance, never “voluntarily,

knowingly, and intelligently” waived proper notice under Rule 245. In re K.M.L.,

443 S.W.3d at 120. Therefore, the trial court abused its discretion in denying the

motion for continuance.

       3.    Denial of the motion for continuance was harmful.

       “Several courts have reversed for violation of Rule 245 without reference to

harm.” J.B., 93 S.W.3d at 615 (citing Platt v. Platt, 991 S.W.2d 481, 484 (Tex. App.—

Tyler 1999, no pet.); In re Estate of Crenshaw, 982 S.W.2d 568, 571 (Tex. App.—

Amarillo 1998, no pet.); Carson v. Hagaman, 824 S.W.2d 267, 269–70 (Tex. App.—

Eastland 1992, no writ)). As noted in J.B., this seems to be done because of a

perception that providing less notice than required by Rule 245 constitutes a due

process violation or because compliance with the rule is “mandatory.” 93 S.W.3d at

615.

       However, to obtain reversal on the basis of trial error, a party must establish

that the error was “harmful.” Tex. Dep’t of Human Servs. v. White, 817 S.W.2d 62, 63
                                          14
(Tex. 1991). “No judgment may be reversed on appeal on the ground that the trial

court made an error of law unless the court of appeals concludes that the error

complained of . . . probably prevented the appellant from properly presenting the case

to the court of appeals.” Tex. R. App. P. 44.1(a)(2).

       “When lack of notice pursuant to Rule 245 of the Texas Rules of Civil

Procedure prevents a party from presenting his or her case to the trial court, it follows

that the same lack of notice prevents the party from presenting his or her case to the

court of appeals.” Raines, 118 S.W.3d at 877. In this case, wherein Taplin did not

receive forty-five days’ notice of the trial setting and did not announce ready for trial,

but did state he needed additional documents for trial and did state he wanted an

attorney, harm is shown as a result of the lack of notice. We therefore sustain

Taplin’s sole issue for review.

                                   IV. CONCLUSION

       Having agreed with Taplin that non-compliance with Rule 245 and the

subsequent denial of the motion for continuance was an abuse of discretion and

caused harm, we reverse and remand to the trial court for a new trial.


                                                        /s/ Dana Womack

                                                        Dana Womack
                                                        Justice

Delivered: July 18, 2019


                                           15
