                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-16-00264-CV
                           ____________________

                     DAVID EARL STANLEY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

_______________________________________________________           ______________

                   On Appeal from the County Court at Law
                             Polk County, Texas
                         Trial Cause No. CV03351
________________________________________________________           _____________

                         MEMORANDUM OPINION

      Pro se Appellant David Earl Stanley appeals the trial court’s judgment of

restitution lien foreclosure. Most of Stanley’s arguments pertain to his underlying

criminal case and a separate civil action in cause number CIV27223 that, according

to Appellant, was non-suited. With respect to his complaints regarding the

underlying criminal case, Stanley waived those complaints by failing to raise them

on appeal of the criminal case. See Tex. R. App. P. 33.1. As to his complaints


                                        1
regarding the State’s nonsuit in the civil action the State filed against him, we

conclude that his complaint is without merit because the State, as the plaintiff in

the civil action, had an absolute right to take a nonsuit because Stanley did not

make a counter-claim for affirmative relief. See Tex. R. Civ. P. 162; BHP

Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990). However, as

to Stanley’s complaint regarding the procedural irregularity of the foreclosure

action, we find that the trial court erred.

      On March 7, 2016, the State filed an Affidavit to Perfect a Restitution Lien

(the affidavit) against property in which Stanley had an ownership interest. The

affidavit stated that Stanley was then incarcerated and the subject property is

$4,300 that had been “seized by the Polk County Sheriff’s Department on April 4,

2012 and is currently the subject of a forfeiture action in Cause number CIV27223

filed in the 258th Judicial District Court of Polk County[,] Texas.” According to

the affidavit, the criminal case giving rise to the lien is State v. David Earl Stanley,

cause number 19197, filed in the 411th Judicial District Court of Polk County,

Texas, and the judgment of conviction in that criminal case ordered Stanley to pay

American Modern Home Insurance Company restitution of $47,635.42.

      The State filed the affidavit with the Polk County Clerk and requested that

the clerk issue citation to Stanley. The county clerk issued citation with an attached

                                              2
copy of the affidavit, and the citation was forwarded to Stanley at the address of

his incarceration. The citation informed Stanley that he had “been sued.” Stanley

filed an Answer in which he included a general denial and wherein he argued that

the State seized his property “without probable cause during a warrantless arrest

and search on April 4, 2012.” Stanley also filed a motion for bench warrant to

attend all proceedings in the case. In a letter dated June 29, 2016, Stanley advised

the clerk that he had received a copy of the docket sheet for CV03351 and he

alleged he never received copies of: the “Judgment of Restitution Lien

Foreclosure/PNR” filed on May 26, 2016; a letter from the District Attorney’s

Office regarding a hearing date of April 27, 2016, and filed on March 29, 2016;

and a “Civil Case Information Sheet/PNR” filed on March 30, 2016. Stanley

asserted that “it appears action has been taken without my being notified or given

an opportunity to respond.” The court reporter of record for CV03351 notified this

Court that she could “find no court date where [she] stenographically took a record

in this case[,]” and no reporter’s record was filed in this appeal.

      On appeal, Stanley argues that (1) the State illegally forfeited the $4,300

because it was illegally seized upon his arrest and in violation of his right to due

process and constitutional rights; (2) the restitution lien was initiated illegally and

in violation of his rights because it was initiated “47 months after initiating a

                                           3
malicious action in Cause No. CIV27223[]” which was non-suited; (3) the

restitution lien foreclosure was “illegally implemented” upon him “without a

prerequisite Order from a Court Ordering Appellant to pay restitution in Cause No.

CV03351[;]” (4) he was not afforded fair and impartial treatment; (5) the trial court

judge abused his discretion when he refused to recuse himself on Stanley’s motion;

and (6) Stanley’s property was illegally seized “from the onset where no warrants

were first obtained to arrest or search Appellant’s home[.]” Stanley also contends

that he was denied due process because he was not given proper notice of the

hearing, he was not bench warranted as requested and the trial court held a hearing

and the trial court “refused . . . his attempt to be heard.”

      Article 42.22 of the Texas Code of Criminal Procedure, titled “Restitution

Liens[,]” provides, in relevant part, the following:

                                       Perfection

      Sec. 3.

         (a) Except as provided by this section, a restitution lien attaches
          and is perfected when an affidavit to perfect the lien is filed in
          accordance with this article.
      ....

                                Persons Who May File

      Sec. 5. The following persons may file an affidavit to perfect a
      restitution lien:

                                            4
         (1) the attorney representing the state in a criminal case in which a
         victim is determined by the court to be entitled to restitution or in
         which a defendant is ordered to pay fines or costs[.]
      ....

                                    Foreclosure

      Sec. 11. If a defendant fails to timely make a payment required by the
      order of the court entering the judgment creating the restitution lien,
      the person having an interest in the lien may file suit in a court of
      competent jurisdiction to foreclose the lien. If the defendant cures the
      default on or before the 20th day after the date the suit is filed and
      pays the person who files the suit costs of court and reasonable
      attorney’s fees, the court may dismiss the suit without prejudice to the
      person. The person may refile the suit against the defendant if the
      defendant subsequently defaults.

Tex. Code Crim. Proc. Ann. art. 42.22, §§ 3, 5, 11 (West Supp. 2017).1

      Assuming without deciding that the filing of the affidavit in this matter

constituted a suit to foreclose the lien under section 11 of Article 42.22,2 the trial

court erred in summarily granting judgment in favor of the State without notice to

Stanley and without allowing Stanley an opportunity to present argument and

evidence. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86 (1988) (A

judgment entered without proper notice is “plainly infirm[]” by reason of the due

process clause of the Fourteenth Amendment.); Mathews v. Eldridge, 424 U.S.

      1
         We cite to the current version of the statute because the amendments do not
affect the outcome of this appeal.
      2
         Neither the State nor Stanley argued to the trial court or on appeal that a
suit to foreclose the lien was not filed in this case.
                                          5
319, 333, 348 (1976) (Due process at a minimum requires notice and an

opportunity to be heard at a meaningful time and in a meaningful manner.).

Accordingly, we sustain Stanley’s argument that he was denied procedural due

process in this cause number. We reverse the Judgment of Restitution Lien

Foreclosure and remand the cause to the trial court for further proceedings

consistent with this opinion.

      REVERSED AND REMANDED.




                                              _________________________
                                                 LEANNE JOHNSON
                                                       Justice


Submitted on December 27, 2017
Opinion Delivered January 11, 2018

Before Kreger, Horton, and Johnson, JJ.




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