Four Thousand Thirty Dollars U.S. Currency ($4,030.00) v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-12-00414-CV

FOUR THOUSAND THIRTY DOLLARS
U.S. CURRENCY ($4,030.00), APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 99,900-E, Honorable Douglas Woodburn, Presiding

August 18, 2014

MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

This is a civil forfeiture proceeding under Chapter 59 of the Code of Criminal

Procedure.1 Appellant Miguel Angel Valdez appeals a summary judgment decreeing

forfeiture of $4,030.00 to appellee the State of Texas. Through a single issue, Valdez

argues the trial court erred by not dismissing the case on grounds of standing and

capacity. Finding the contention without merit, we will affirm.

1
TEX. CODE CRIM. PROC. ANN. arts. 59.01-59.14 (West 2006 & Supp. 2014).
 Background

Valdez does not challenge the sufficiency of the evidence supporting the court’s

judgment of forfeiture but instead presents a narrow legal question. We therefore

mention only those background facts salient to our disposition.

The Potter County district attorney’s office filed a petition with the Potter County

district clerk entitled “original notice of seizure and intended forfeiture.” The style of the

case in the pleading’s caption read “The State of Texas v. Four Thousand Thirty Dollars

U.S. Currency ($4,030.00).” The salutation stated, “THOMAS HIGHTOWER, an officer

of the Amarillo Police Department assigned to the Amarillo Police Department Narcotics

Unit, in the name and for the State of Texas, files this notice and in support of forfeiture

shows the following[.]”2 The pleading identified the proceeding as one under Chapter

59 of the Code of Criminal Procedure, identified Valdez as “claimant” and alleged cash

in the amount of $4,030.00 was seized as contraband. Forfeiture of the cash was

requested. The signature block on the instrument was in typical form, beginning with

the typewritten name of Potter County District Attorney Randall Sims, followed by the

signature of assistant district attorney Richard Martindale, a State Bar of Texas

identification number and the required attorney contact information. See TEX. R. CIV. P.

57.

2
See TEX. CODE CRIM. PROC. ANN. art. 59.05(a) (West 2006) (civil rules of
pleading apply in forfeiture proceeding); 2 Roy W. McDonald & Elaine A. Grafton
Carlson, Texas Civil Practice § 8:4 (2d ed. 2003) (describing general elements of
petition, noting that the formal caption of a petition is usually followed by a salutation to
the court, the caption and salutation “are not, strictly speaking, part of the pleading”
even though “it is good practice to have them”).

2
 Attached to the pleading were two affidavits executed by Hightower, one a

schedule of the number and denominations of the bills totaling $4,030.00, the other a

“seizing officer’s affidavit,” in which he identified himself as the officer who seized the

cash and described the circumstances under which he seized it, described his

investigation of the explanation Valdez gave officers for his possession of it and

described his reasons for concluding it was contraband.3

Valdez answered by general denial. His answer’s style identified “the State of

Texas” as the party seeking relief.

After Valdez failed to respond to its requests for admissions, the State moved for

summary judgment on its entire case. The style of the motion, like the original notice of

forfeiture, identified “the State of Texas” as the party seeking relief in the proceeding.

The salutation alleged, “[c]omes now the State of Texas, by and through her 47th

District Attorney” and moves for a “summary judgment in favor of plaintiff . . . .” The

prayer requested relief in favor of “the State of Texas.”

Some six weeks later, Valdez filed a pleading entitled “defendant’s supplemental

answer and motion to dismiss.” The caption of the pleading read like the original notice

of seizure and intended forfeiture, indicating the party seeking relief as “the State of

Texas.” By the pleading, Valdez alleged Thomas Hightower was the only person

3
See TEX. CODE CRIM. PROC. ANN. art. 59.03(c) (West Supp. 2014) (stating a
peace officer who has custody of property “shall provide the attorney representing the
state with a sworn statement that contains a schedule of the property seized, an
acknowledgment that the officer has seized the property, and a list of the officer’s
reasons for the seizure”); Id. art. 59.04(b) (West Supp. 2014) (requiring attorney
representing the state to attach to the notice of seizure and intended forfeiture the
peace officer’s sworn statement under art. 59.03).

3
“named as a party to the filing of this suit.” But, Valdez continued, Hightower was not a

licensed attorney, the elected district attorney, or “employed as a felony prosecutor by

the elected” district attorney. Therefore, concluded Valdez, Hightower had no standing,

capacity, or “other authority to bring this suit.” The factual allegations of the pleading

were not verified. Valdez did not file a response to the State’s motion for summary

judgment. The record does not indicate the trial court granted Valdez leave to file his

amended answer.

The trial court granted the State’s motion for summary judgment. The judgment

ordered the cash “forfeited to the 47th District Attorney’s Office to be conveyed to the

Amarillo Police Department pursuant to their local agreement.”

Analysis

In his appellate issue, Valdez argues the trial court lacked jurisdiction to render

summary judgment because standing and capacity in a forfeiture proceeding under

Code of Criminal Procedure Chapter 59 are exclusively conferred by statute on the

“attorney representing the state,” and the suit here was brought by a law enforcement

officer. We review the trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

Chapter 59 of the Texas Code of Criminal Procedure concerns the forfeiture of

contraband. Approximately $ 14,980.00 v. State, 261 S.W.3d 182, 185 n.1 (Tex. App.—

Houston 14th Dist. 2008, no pet.). Not later than the thirtieth day after a peace officer

seizes contraband, a proceeding for its forfeiture must be commenced by the attorney

representing the State. TEX. CODE CRIM. PROC. ANN. art. 59.04(a) (West Supp. 2014).

4
‘“Attorney representing the state’ means the prosecutor with felony jurisdiction in the

county in which a forfeiture proceeding is held under this chapter . . . .” TEX. CODE CRIM.

PROC. ANN. art. 59.01(1) (West Supp. 2014). The forfeiture proceeding commences

when the attorney representing the State “files a notice of the seizure and intended

forfeiture in the name of the state” with the proper district clerk. TEX. CODE CRIM. PROC.

ANN. art. 59.04(b) (West Supp. 2014). Forfeited property is administered by the

attorney representing the State “acting as the agent of the state, in accordance with

accepted accounting practices and with the provisions of any local agreement entered

into between the attorney representing the state and law enforcement agencies.” TEX.

CODE CRIM. PROC. ANN. art. 59.06(a) (West Supp. 2014).4 A forfeiture proceeding under

Chapter 59 is an action in rem against contraband. State v. Silver Chevrolet Pickup,

140 S.W.3d 691, 692 (Tex. 2004) (per curiam) (citing Hardy v. State, 102 S.W.3d 123,

126-27 (Tex. 2003)).

Standing is a component of subject matter jurisdiction and can never be waived.

Austin Nursing Ctr. Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 443, 446 (Tex. 1993). “A plaintiff has standing

when it is personally aggrieved, regardless of whether it is acting with legal authority; a

party has capacity when it has the legal authority to act, regardless of whether it has a

justiciable interest in the controversy.” Nootsie, Ltd. v. Williamson County Appraisal

Dist., 925 S.W.2d 659, 661 (Tex. 1996). Standing requires the existence of a real

controversy between the parties that will be actually determined by the judicial

4
There is one exception, not applicable here. See TEX. CODE CRIM. PROC. ANN.
art. 59.06(k) (West Supp. 2014) (providing for administration of certain forfeited property
by the attorney general).

5
declaration sought. AVCO Corp. v. Interstate Southwest, Ltd., 251 S.W.3d 632, 649

(Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Tex. Ass’n of Bus., 852

S.W.2d at 446).

A “personal stake in the controversy” gives a plaintiff standing to bring suit.

AVCO, 251 S.W.3d at 649. A plaintiff having no legally cognizable interest in the

outcome of the case lacks standing to sue on its own behalf, but may be authorized to

sue on behalf of another. Id. (citing Nootsie, 925 S.W.2d at 661 and Neeley v. W.

Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 776 (Tex. 2005)). Unlike

standing, which concerns “the question of whether a party has an enforceable right or

interest,” capacity concerns “a party’s personal right to come into court.” See AVCO,

251 S.W.3d at 649 (citing Austin Nursing Ctr., 171 S.W.3d at 849 (internal citation

omitted)).

The original notice of seizure and intended forfeiture did not assert that

Hightower had a “personal stake in the controversy,” AVCO, 251 S.W.3d at 649, or

claimed a personal interest in the seized cash. By its plain wording, in filing the original

notice, Hightower was acting “in the name and for the State of Texas.” Nor does the

record elsewhere contain any suggestion Hightower claimed standing as an individual

to assert forfeiture of the cash. His standing as an individual simply is not at issue here.

Nor, for that reason, is the trial court’s jurisdiction to adjudicate the forfeiture properly in

question.

And, under the circumstances presented by this record, we need not concern

ourselves with Hightower’s capacity to file the original notice on behalf of the State.

6
Assistant District Attorney Martindale’s naming of Hightower as the person filing the

original notice on behalf of the State was no more than a misnomer. “A misnomer

occurs when a party misnames itself or another party but the correct parties are

involved.” In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325

(Tex. 2009) (per curiam); Chen v. Breckenridge Estates Homeowners Ass’n, Inc., 227

S.W.3d 419, 420-21 (Tex. App.—Dallas 2007, no pet.) (“A misnomer does not invalidate

a judgment as between parties where the record and judgment together point out, with

certainty, the persons and subject matter to be bound. . . . A plaintiff misnaming itself is

a misnomer” (citations omitted)). “Courts generally allow parties to correct a misnomer

so long as it is not misleading.” In re Greater Houston Orthopaedic Specialists, Inc.,

295 S.W.3d at 325.

Here the record makes abundantly clear from the inception of the forfeiture

proceeding the correct parties were involved. To the extent the State’s original notice

contains a misnomer naming Hightower, the peace officer who seized the contraband,

in an incorrect role as the party filing the notice on behalf of the State, correction of the

misnomer was made in the motion for summary judgment and the judgment. Hightower

neither sought relief in the motion for summary judgment nor was granted relief in the

judgment. Neither document mentions Hightower. The motion for summary judgment,

submitted by “the State of Texas, by and through her 47th District Attorney” asked for

relief in favor of “the State of Texas.” As directed by Chapter 59, the judgment ordered

the cash “forfeited to the 47th District Attorney’s Office to be conveyed to the Amarillo

Police Department pursuant to their local agreement.” See art. 59.06(a) (directing

disposition of forfeited property).

7
 If Valdez felt he was denied fair notice5 of the State’s claim, he had at his

disposal remedial tools such as special exception6 and civil discovery. See TEX. CODE

CRIM. PROC. ANN. art. 59.05(b) (West 2006) (forfeiture proceeding must proceed to trial

in same manner as other civil cases); In re Gore, 251 S.W.3d 696, 699-700 (Tex.

App.—San Antonio 2007, orig. proceeding) (finding, absent authority to the contrary,

party to civil forfeiture proceeding had the same right as any other civil litigant to obtain

full discovery within a reasonable time, develop defenses, and proceed to trial). But

Valdez does not assert he had inadequate notice of the forfeiture proceeding. Nor does

he claim to have been confused or mislead to his detriment by the State’s original

notice.

Finding no merit in Valdez’s contention the trial court lacked jurisdiction, and no

error in the trial court’s judgment of forfeiture, we overrule Valdez’s sole issue, and

affirm the judgment.

James T. Campbell
Justice

5
See Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (“Texas follows a ‘fair
notice’ standard for pleading, in which courts assess the sufficiency of pleadings by
determining whether an opposing party can ascertain from the pleading the nature,
basic issues, and the type of evidence that might be relevant to the controversy”).
6
The clerk’s record contains a special exception filed by Valdez but there is no
record indication of a trial court ruling. No issue regarding the special exception is
raised on appeal.

8