

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.


