a 5 Acre Tract of Land and All Improvements Thereupon, Bearing the Address: 1483 Friendship Road, Weatherford, Parker County, Texas 76085 v. State

Opinion filed November 12, 2015

In The

Eleventh Court of Appeals
__________

No. 11-13-00352-CV
__________

A 5 ACRE TRACT OF LAND AND ALL IMPROVEMENTS
THEREUPON, BEARING THE ADDRESS: 1483 FRIENDSHIP
ROAD, WEATHERFORD, PARKER COUNTY, TEXAS 76085,
Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 43rd District Court
Parker County, Texas
Trial Court Cause No. CV12-0976

MEMORANDUM OPINION
This is an appeal from a civil forfeiture proceeding brought by the State
against a five-acre tract of land and all improvements thereupon belonging to Jimmy
Wayne Mack.1 The trial court found that the five acres and all improvements were

1
Under a docket equalization order, the Supreme Court of Texas transferred this appeal from the
Second Court of Appeals to the Eleventh Court of Appeals. As required under TEX. R. APP. P. 41.3, we
will decide this case in accordance with the precedent of the Second Court of Appeals.
contraband under Chapter 59 of the Texas Code of Criminal Procedure2 and ordered
that they be forfeited. See CRIM. PROC. art. 59.02. In one point of error, Appellant
appeals the trial court’s denial of his motion to dismiss the forfeiture proceedings.
We affirm.3
Appellant argues that the trial court erred when it denied his motion to dismiss
because the State did not commence the forfeiture proceedings within the applicable
statute of limitations. However, the State contends that Appellant waived the
defense because he did not affirmatively plead the defense of limitations. We agree
with the State. The statute of limitations is an affirmative defense, and to preserve
error on appeal, Appellant must have affirmatively pleaded the defense. TEX. R.
CIV. P. 94; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).
Appellant failed to plead an affirmative defense in his original answer, and no
amended or supplemental pleadings were filed. Therefore, we hold that Appellant
waived the defense of limitations. We overrule Appellant’s sole point of error.
We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

November 12, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

2
TEX. CODE CRIM. PROC. ANN. ch. 59 (West 2006 & Supp. 2014).
3
On this same day in companion cases, 1998 Black Mitsubishi 3000 GT, Texas LP #811PKJ, VIN
JA3AM44H9WY001446, et al. v. State, No. 11-13-00350-CV, and 2000 Black Ford F-150, Texas License
Plate 21LKN5, VIN: 1FTRX18L6YKA80489, et al. v. State, No. 11-13-00353-CV, we have affirmed the
judgments in which Appellant was ordered to forfeit personal property to the State in trial court cause
nos. CV12-0542 and CV12-0538.

2