dissenting.
Finding myself in disagreement with the majority members of the panel, I respectfully file my dissent. Appellant, Danny Fant, appeals the trial court’s denial of his application for writ of habeas corpus, asserting'that double jeopardy bars his trial for possession of a controlled substance with intent to deliver because the State has previously obtained a forfeiture judgment arising out of the same criminal occurrence. The majority agrees, holding that the forfeiture is “punishment.”
I am of the opinion that TexCode Ceim. ProcAnn. chapter 59 (Vernon Supp.1994) is remedial in nature. See Ward v. State, 870 S.W.2d 659, 663 (Tex.App. — Houston [1st Dist.] 1994, pet. refd). Specifically, article 59.06, which provides for the disposition of forfeited property, mandates that forfeited funds and funds derived from the sale of forfeited property shall be used for law enforcement purposes, and drug abuse and chemical dependency treatment programs. Tex.Code CRImPROcAnn. art. 59.06(e), (h) (Vernon Supp.1994). Thus, the statute is not punitive and does not constitute punishment.
The majority relies on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), in which the Supreme Court of the United States held that “under the Double Jeopardy Clause a defendant who has already been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not be fairly characterized as remedial, but only as a deterrent or retribution.” Id. at 448-49, 109 S.Ct. at 1902. As the majority recognizes, the Court severely limited this holding:
What we announce now is a rule for the rare case, the ease such as the one before us, where a fixed penalty provision sub*835jects a prolific but small-gauge offender to a sanction ovemjohelmingly disproportionate to the damages he has caused. The rale is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as “punishment” in the plain meaning of the word, then the defendant is entitled to an accounting of the Government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment.
Id. at 449-50, 109 S.Ct. at 1902 (emphasis added).
Thus, Halper teaches us that if the statute is remedial in nature, then the further analysis to determine whether it qualifies as punishment does not apply. See Ward, 870 S.W.2d at 663. As mentioned earlier, the face of the statute itself indicates that it is remedial. See Tex.Code Crim.PROC.Ann. art. 59.06(e), (h). However, even if the forfeiture statute was punitive rather than remedial, appellant has failed to show this court that his is one of the “rarest eases” contemplated by Halper, and how the cash and property forfeited is “overwhelmingly disproportionate to the damage” he has caused. See Halper, 490 U.S. at 449-50, 109 S.Ct. at 1902-03; Ward, 870 S.W.2d at 663.
The majority also analyzes Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) in which the Court held that the excessive fines clause of the Eighth Amendment to the United States Constitution applies to forfeitures. Even if Austin stands for the proposition that forfeitures are punishment, the Court left it to thé lower courts to consider what factors would appropriately determine whether a forfeiture was “excessive.” Id. — U.S. at-, 113 S.Ct. at 2812. We need not develop the factors here because the record before this court does not contain evidence developed in the forfeiture settlement, or to be developed in the criminal prosecution. Thus, appellant has not shown that the forfeiture is “excessive.”
Accordingly, I would overrule appellant’s first and second points of error and would affirm the trial court’s judgment.