Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00428-CV
FIFTY-ONE THOUSAND ONE HUNDRED AND TWENTY-FOUR DOLLARS in US
Currency, et al.,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. DC-17-658-A
Honorable Jose Luis Garza, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: April 24, 2019
REVERSED AND REMANDED
This is an appeal from a severed, partial summary judgment in favor of the State of Texas
based on deemed admissions. Appellant Graciano Garcia asserts the trial court lacked subject
matter jurisdiction because the forfeiture petition was not timely filed and the State failed to name
Maria Soza-Lopez (“Soza”) as an interest holder or serve her with process within the thirty-day
statute of limitations. Garcia also contends the trial court erred by granting a partial summary
judgment based on deemed admissions. We reverse the trial court’s judgment and remand the
cause for a new trial.
04-18-00428-CV
BACKGROUND
On November 3, 2017, investigators from the Starr County High Intensity Drug
Trafficking Area Task Force and U.S. Border Patrol agents arrived at the home of Garcia and his
wife Soza based on a tip that narcotics were being stored at the home and in a vacant lot adjacent
to the home. Garcia gave the investigators consent to search his home and gave them keys to a
travel trailer that was located on the property. After the investigators found an eleven-pound brick
of marijuana in the travel trailer, Garcia withdrew his consent to the search because he was told
Soza was also going to be detained. After Garcia withdrew his consent, the property was secured
while a valid search warrant was obtained. As a result of the search, the investigators seized:
(1) $51,124 of U.S. currency located in the home; (2) a 2010 beige Cadillac SRX; (3) a 2005 Ford
F-150 truck; and (4) a 2006 Cherokee Travel Trailer. During the investigation, Soza stated the
currency did not belong to her, and she did not know it was in the residence.
On November 21, 2017, the State filed its original notice of seizure and intended forfeiture
of the assets listed above and named: Garcia as the owner of the currency and the Cadillac SRX;
Alejandro Rodriguez as the owner of the F-150; and Jose Lopez as the owner of the travel trailer.
These were the only individuals named as claimants of the assets in the original notice of seizure.
The notice alleged that the date of seizure was September 21, 2017, however, the investigator’s
affidavit attached to the notice attested to the actual seizure date of November 3, 2017. Garcia
filed an answer claiming he was an innocent owner of the alleged contraband. Neither of the other
claimants filed an answer.
On December 21, 2017, the State sent Garcia a request for admissions. Garcia did not
respond. On January 26, 2018, the State filed a motion for partial summary judgment based on
deemed admissions. The summary judgment hearing was scheduled for March 3, 2018, and Garcia
filed a motion to strike the deemed admissions on February 28, 2018. Garcia claimed he was not
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able to respond to the request for admissions because a discrepancy with his work calendar caused
a scheduling conflict and he was not able to return to Starr County in time to answer the
admissions. The trial court denied the motion to strike deemed admissions and granted partial
summary judgment in favor of the State as to the $51,124 of U.S. currency, only. Subsequently,
the trial court granted the State’s motion to sever the forfeiture of the $51,124 into a separate cause
making the summary judgment final as to that asset. Garcia appeals.
NECESSARY PARTIES
In his first issue, Garcia argues that the forfeiture proceeding should be dismissed because
Soza and Jose Infante, another individual who was in possession of the F-150 truck during the
search, were not made parties to the original suit. Because the trial court’s summary judgment
relates only to the $51,124 in U.S. currency, Infante’s claims are not at issue in this appeal.
Garcia claims Soza is an interest holder in the currency and, because the State did not
perfect service of process on Soza, the forfeiture proceeding is barred by article 59.04’s thirty-day
limitation period. TEX. CODE CRIM. PROC. ANN. § 59.04 (requiring the State’s attorney to send
certified copies of the notice of seizure and intended forfeiture to be served on any owner and
possessory interest holder of the seized assets within thirty days of the seizure). Article 59.04(l)
states: “Proceedings commenced under this chapter may not proceed to hearing unless the judge
who is to conduct the hearing is satisfied that this article has been complied with . . . .” TEX. CODE
CRIM. PROC. ANN. § 59.04(l).
The State argues it caused certified copies of the notice to be served on the only owner and
interest holder in the currency when it perfected service on Garcia. In support of this argument,
the State points to the seizing officers’ affidavit attesting that Soza disclaimed any possessory
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interest in the currency. 1 Garcia responds by pointing to an affidavit Soza filed with the court after
the summary judgment hearing and the order granting severance in which she attests that she did
not make any representations to the State that she did not care about the seized currency. However,
this affidavit does not contend that Soza had any possessory interest in the currency, and the
affidavit was not before the trial court at the summary judgment hearing. See Cincinnati Life Ins.
Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996) (an appellate court may only review issues that
were raised before the trial court on summary judgment). Therefore, we hold the trial court did
not err in proceeding with the hearing because, based on the seizing officers’ affidavit, the trial
court was satisfied that all owners and possessory interest holders had been timely served with
process within the thirty-day time frame. Garcia’s first issue is overruled.
DATE OF SEIZURE
In his third issue, Garcia contends the State lacked subject matter jurisdiction based on the
date of seizure alleged in the notice of seizure and intended forfeiture. However, the seizing
officers’ affidavit attached to the original notice of seizure and intended forfeiture attested that the
seizure occurred on November 3, 2017, and Garcia concedes in his brief that the seizure occured
on November 3, 2017. Therefore, we must determine whether the mistaken date in the original
notice of seizure and intended forfeiture was a pleading defect that divested the trial court of
subject matter jurisdiction.
Article 59.04 of the Texas Code of Criminal Procedure provides guidance in how the State
initiates a forfeiture proceeding. TEX. CODE CRIM. PROC. ANN. § 59.04. Specifically, the article
lays out the required information and allegations the State’s original notice of seizure and forfeiture
must include to “commence” a forfeiture proceeding. Id. “Proceedings commenced under this
1
The seizing officers’ affidavit states: “SOZA said she did not know the currency was there, and does not belong to
her.”
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chapter may not proceed to hearing unless the judge who is to conduct the hearing is satisfied that
this article has been complied with . . . .” Id. § 59.04(l). However, not all procedural violations
should result in dismissal of a forfeiture action. State v. Silver Chevrolet Pickup VIN
1GCEC14T7YE257128, 140 S.W.3d 691, 694 (Tex. 2004); see also State v. $435,000, 842 S.W.2d
642, 644 (Tex. 1992) (holding the trial court’s failure to timely hold forfeiture hearing did not
warrant dismissal of the case); $4,030 v. State, No. 07-12-00414-CV, 2014 WL 4078658, at *3
(Tex. App.—Amarillo Aug. 18, 2014) (concluding the trial court did not err when the notice stated
it was filed by the seizing officer rather than the district attorney); State v. Park, 820 S.W.2d 948,
951 (Tex. App.—Texarkana 1991, no writ) (holding the State’s failure to attach the police officer’s
statement to the notice of seizure, as required by statute, was curable by amendment and did not
require dismissal of the case). In a forfeiture hearing, all parties must comply with the rules of
pleadings as required in civil suits. TEX. CODE CRIM. PROC. ANN. § 59.05(a). Therefore, every
defect in pleading, whether it be in form or substance, is waived unless it is brought to the attention
of the trial court by special exception. TEX. R. CIV. P. 90.
Here, Garcia claims the discrepancy between the date alleged in the notice of seizure and
intended forfeiture and the date in the seizing officers’ affidavit divests the trial court of subject
matter jurisdiction. We disagree for several reasons. First, article 59.04 does not require the notice
of seizure and intended forfeiture to include the date of seizure, but only requires the suit be
commenced no later than the thirtieth day after seizure. Because the date of seizure was
November 3, 2017, and the forfeiture suit was commenced on November 21, 2017, the State met
the thirty-day requirement. In addition, even if the pleading defect was a procedural violation
under Article 59.04, the mistaken date on the notice of seizure and intended forfeiture could have
been cured by amendment if it was brought to the court’s attention by special exception.
Accordingly, just as the failure to attach a seizing officers’ affidavit does not warrant dismissal, a
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discrepancy in the date between the affidavit and notice of seizure does not warrant dismissal. See
Park, 820 S.W.2d at 951. Finally, because Garcia failed to give the State an opportunity to cure
the defect by filing a special exception, he has waived error. TEX. R. CIV. P. 90. We overrule
Garcia’s third issue.
SUMMARY JUDGMENT BASED ON DEEMED ADMISSIONS
In his second issue, Garcia argues the trial court erred in granting summary judgment based
on his deemed admissions. The State sent a request for admissions to Garcia on December 21,
2017. Because Garcia did not timely respond to that request, the request was deemed admitted.
Garcia filed a motion to withdraw the admissions, while the State moved for summary judgment
based on the deemed admissions. We must decide whether the trial court abused its discretion in
denying the withdrawal of the deemed admissions when they had a merits-preclusive effect on the
case.
Standard of Review
We review a trial court’s decision to permit or deny withdrawal of deemed admissions for
an abuse of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per curiam). “An
abuse of discretion occurs when a court acts without reference to guiding rules or principles, or
acts arbitrarily or unreasonably.” Id.
Applicable Law
When a party requests admissions, “[t]he responding party must serve a written response
on the requesting party within 30 days after service of the request” and failure to do so will result
in the request being deemed admitted. TEX. R. CIV. P. 198.2. The trial court may permit the
responding party to withdraw the deemed admissions if: “(a) the party shows good cause for the
withdrawal or amendment; (b) the court finds that the parties relying upon the responses and
deemed admissions will not be unduly prejudiced[;] and [(c)] the presentation of the merits of the
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action will be subserved by permitting the party to amend or withdraw the admission.” TEX. R.
CIV. P. 198.3. “Good cause is established by showing the failure involved was an accident or
mistake, not intentional or the result of conscious indifference.” Wheeler v. Green, 157 S.W.3d
439, 442 (Tex. 2005) (per curiam). “Good cause also exists when due process concerns are
implicated by deemed admissions that act as a merits-preclusive discovery sanction [in the absence
of] bad faith or callous disregard on the part of the party requesting withdrawal.” Time Warner,
Inc. v. Gonzalez, 441 S.W.3d 661, 665 (Tex. App.—San Antonio 2014, pet denied) (citing Maino
v. King, 355 S.W.3d 629, 634 (Tex. 2011) (per curiam)). “Undue prejudice depends on whether
withdrawing an admission or filing a late response will delay trial or significantly hamper the
opposing party’s ability to prepare for it.” Wheeler, 157 S.W.3d at 442.
Although the trial court has discretion in deciding whether to allow a party to withdraw
deemed admissions, due-process concerns arise when deemed admissions are used to preclude
presentation of the merits of the case. Time Warner, Inc., 441 S.W.3d at 665 (citing Wheeler,
157 S.W.3d at 443). When deemed admissions act as a merits-preclusive sanction, good cause
will exist to withdraw the deemed admissions unless the trial court finds the failure to timely
respond was the result of bad faith or callous disregard on the part of the party requesting
withdrawal. Id. Thus, the movant is “required [to make] a showing of ‘flagrant bad faith or callous
disregard for the rules’ to substantiate a summary judgment based solely on deemed admissions.”
Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011) (quoting Wheeler, 157 S.W.3d at 443) (holding
due process bars merits-preclusive sanctions unless there is a showing of bad faith or callous
disregard for the rules of civil procedure). “Requests for admission are intended to simplify trials
by ‘addressing uncontroverted matters or evidentiary ones like the authenticity of documents.”
Time Warner, Inc., 441 S.W.3d at 665 (quoting Wheeler, 157 S.W.3d at 443). “They are not
intended to require a defendant to admit the validity of a plaintiff’s claims or concede his
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defenses.” Time Warner, Inc., 441 S.W.3d at 665 (quoting Marino, 355 S.W.3d at 632). “The
discovery rules were not designed as traps for the unwary, nor should we construe them to prevent
a litigant from presenting the truth.” Stelly, 927 S.W.2d at 622. “Using deemed admissions as the
basis for summary judgment therefore does not avoid the requirement of flagrant bad faith or
callous disregard, the showing necessary to support a merits-preclusive sanction; it merely
incorporates the requirement as an element of the movant’s summary judgment burden.” Marino,
355 S.W.3d at 634.
Application
The State relied on Garcia’s deemed admissions to prove the elements of its claim: (1) the
seizing officers had probable cause that the seized assets were contraband; and (2) the seized
property is, in fact, contraband. $132,265.00 in U.S. Currency v. State, 409 S.W.3d 17, 23 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). The State did not use the admissions to address
uncontroverted matters or to authenticate documents, but instead used them as evidence that Garcia
admitted the validity of the State’s claim and conceded his defense as an innocent owner.
Therefore, the showing of bad faith or callous disregard became an element of the State’s summary
judgment burden. Marino, 355 S.W.3d at 634.
At the hearing on the motion for summary judgment, Garcia’s attorney argued he did not
timely respond to the admissions because he was unable to get in contact with Garcia because
Garcia was out of town for work and there was a scheduling mistake with regards to his work
schedule. In response to this excuse, the State did not make any showing of bad faith or callous
disregard. Because the record contains no evidence of flagrant bad faith or callous disregard for
the rules, good cause exists for withdrawal. Also, there is nothing in the record to suggest the State
is unable to prepare for trial without the admissions and no evidence that their withdrawal will
cause the State undue prejudice. In its brief, the State contends it will be unduly prejudiced if the
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admissions are withdrawn but it fails to explain how it would be prejudiced. Requiring the State
to prove the elements of its claim, rather than allowing it to rely on deemed admissions, does not
prejudice the State; it simply requires the State to meet its burden of proof. Lastly, the
“[p]resentation of the merits is not served when ‘the case is decided on deemed (but perhaps
untrue) facts . . . .’” Time Warner, Inc., 441 S.W.3d 661, 669 (quoting Wheeler, 157 S.W.3d at
443 n.2). Because the State failed to prove the essential element of bad faith or callous disregard
at the summary judgment hearing, the trial court erred in denying Garcia’s motion to withdraw
and in granting the State’s motion for summary judgment based on the deemed admissions.
Garcia’s second issue is sustained.
CONCLUSION
The trial court’s judgment is reversed and the cause is remanded to the trial court for a new
trial.
Rebeca C. Martinez, Justice
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