NO. 07-10-00058-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 22, 2010
GENEKE ANTONIO LYONS, APPELLANT
v.
LYNN SWITZER, IN HER CAPACITY AS 31ST JUDICIAL
DISTRICT ATTORNEY, TROOPER JASON HENDERSON,
THE TEXAS DEPARTMENT OF PUBLIC SAFETY AND
THE STATE OF TEXAS, APPELLEES
FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;
NO. 11,808; HONORABLE STEVEN RAY EMMERT, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Geneke Antonio Lyons, appeals the trial court’s granting of a summary
judgment and plea to the jurisdiction in favor of each appellee, Lynn Switzer, Jason
Henderson, the Texas Department of Public Safety, and the State of Texas. We affirm.
Factual and Procedural Background
This case arose out of the seizure of $106,251.91 by Trooper Jason Henderson
of the Texas Department of Public Safety. The factual background for the ensuing
petition filed by Lyons is set forth in detail in this Court’s opinion in Lyons v. Henderson,
No. 07-06-0425-CV, 2008 Tex.App. LEXIS 3609 (Tex.App.—Amarillo May 19, 2008, no
pet.) (mem. op. not designated for publication) 1 and we refer the parties to that
discussion. See id. at *1-*3. In that opinion, we affirmed the trial court’s determination
that it lacked subject matter jurisdiction over Lyons’s claim, but reversed the trial court’s
dismissal of Lyons’s action with prejudice and remanded the case back to the trial court
to afford Lyons a reasonable opportunity to amend his pleadings in order to correct the
jurisdictional defect. Id. at *11.
Lyons filed an amended pleading on August 19, 2008. Lyons’s amended
pleading added Lynn Switzer, in her official capacity as 31st Judicial District Attorney, an
action for declaratory judgment, an allegation of deprivation of Lyons’s Fifth Amendment
rights under the United States Constitution, a claim of violation of Lyons’s rights under
article 1, section 19, of the Texas Constitution, and a general claim for damages
pursuant to section 104.002 of the Texas Civil Practice and Remedies Code. The
appellees each filed a plea to the jurisdiction and a motion for summary judgment.
Lyons also filed a motion for summary judgment and objected to the summary
judgments filed by appellees. The trial court granted the appellees’ pleas to the
jurisdiction and summary judgments. This appeal followed.
Lyons’s appeal asserts a total of nine different issues. Because of our
disposition, we only address the issue of jurisdiction. It is noteworthy to understand the
limited purpose for which we remanded this matter to the trial court, which was to allow
1
We will refer to this 2008 opinion as “Lyons I.”
2
Lyons the opportunity to amend his pleadings to demonstrate that he could cure the
jurisdictional deficiency apparent in his original pleading. We have determined that he
has not cured the jurisdictional deficiency and will, therefore, affirm the judgment of the
trial court.
Subject Matter Jurisdiction
Initially, we observe that our opinion in Lyons I resulted in a remand limited to
allowing Lyons the opportunity to amend his pleadings to cure the jurisdictional defect in
his original petition. Id. Lyons’s amended pleading did not address the fact that the res,
the $106,251.91 seized by Henderson, was not in the possession of the State at the
time he commenced his suit. Thus, to the extent that Lyons continues to request the
trial court to return the res to him, the court lacks jurisdiction. See One Hundred Ninety-
one Thousand Four Hundred Fifty-two and no/100 Dollars v. State, 827 S.W.2d 430,
433 (Tex.App.—Corpus Christi 1992, writ denied) (release or removal of the res from
control of the court will terminate jurisdiction). As stated previously, the court in this
case never had control of the res. Since forfeiture is an in rem proceeding, the court’s
jurisdiction is predicated on control over the res. See Costello v. State, 774 S.W.2d
722, 723 (Tex.App.—Corpus Christi 1989, writ denied). However, the general rule is
subject to an exception when the res may have been removed from the control or
custody of the court accidentally, fraudulently, or improperly. Id. at 724. Neither
Lyons’s pleading nor the evidence in the record indicate that any of the exceptions
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apply. 2 Therefore, unless Lyons’s amended pleading establishes that the turnover was
improper, his causes of action still suffer from a jurisdictional defect.
Lyons’s cause of action for declaratory relief suffers from the same jurisdictional
infirmity. Lyons “seeks declaratory judgment that the failure of the named appellees to
comply with the strict requirements of Article 59.01, et seq., Tex. Code of Crim. Proc.,”
shows that Lyons is entitled to return of the res. See TEX. CODE CRIM. PROC. ANN. ch.59
(West 2006 & Supp. 2010). 3 This allegation does nothing more than recast the original
action as a declaratory judgment action seeking a declaration that the same statutory
scheme as was argued in the original proceeding, Chapter 59, invalidates the turnover
of the res to the Drug Enforcement Administration (DEA). See One Hundred Ninety-one
Thousand Four Hundred Fifty-two and no/100 Dollars, 827 S.W.2d at 433.
Therefore, because Lyons’s alleged constitutional impropriety relates to the
potential forfeiture rather than the turnover of the res to federal authorities, none of the
Costello exceptions apply. Consequently, the trial court was without jurisdiction to
address these alleged constitutional violations.
2
Appellant does mention the exceptions in his brief, however, nowhere in his
pleadings does he assert that the accident or fraud exceptions apply to the facts of this
case.
3
Further reference to the Texas Code of Criminal Procedure will by reference to
“art. ___,” “article ____,” or “Chapter ___.”
4
Conclusion
Because the trial court’s ruling on jurisdiction was correct, we affirm the judgment
entered by the trial court in all respects.
Mackey K. Hancock
Justice
5