dissenting.
The majority opinion affirms the trial court’s order granting habeas corpus relief to appellee, Miguel Romero. I respectfully dissent.
*862Overlooked Threshold Issue
An analysis of the Texas cases that have addressed the double jeopardy problem arising from forfeiture of property recovered in a drug bust followed by criminal prosecution for drug offenses out of the same transaction reveals that a threshold issue has been overlooked. It is that double jeopardy protection applies to multiple punishments for the same offense, not to multiple punishments for matters which arise from the same occurrence. It appears that everyone has been so intent on addressing the issue of whether the forfeiture statute is punitive or remedial that no attention has been given to whether double jeopardy protection is even applicable.
For example, in Ward v. State, 870 S.W.2d 659 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd), vacated and remanded, Ward v. Texas, - U.S. -, 115 S.Ct. 567, 130 L.Ed.2d 485 (1994), this Court set out the assertion in the applicant’s writ of habeas corpus that he “suffered a fine and forfeiture, clearly penal in nature, arising out of the transaction leading to Applicant’s criminal prosecution.” 870 S.W.2d at 660 (emphasis added). This court then set out the standard that the double jeopardy clause protects against, inter alia, multiple punishments for the same offense. Id.
In Fant v. State, 881 S.W.2d 830 (Tex.App.—Houston [14th Dist.] 1994, pet. granted), the Fourteenth Court of Appeals considered the question of “whether double jeopardy bars appellant’s trial for possession of a controlled substance with intent to deliver, after the State has obtained a forfeiture judgment arising out of the same criminal occurrence.” Id. at 831 (emphasis added). The holding was that Fant had “already been punished for his criminal conduct by the forfeiture of his property, and the Double Jeopardy Clause of the United States Constitution prohibits farther punishment by the State for the same incident.” Id. at 834 (emphasis added). The court suggested that “if the State wishes to proceed against an individual by prosecuting him criminally and instituting civil forfeiture proceedings for conduct arising out of the same criminal occurrence, it must do so in the same proceeding.” Id. (emphasis added).
In Johnson v. State, 882 S.W.2d 17 (Tex.App.—Houston [1st Dist.] 1994, pet. granted), the focus was solely on whether the forfeiture statute constituted punishment. Nothing was said about whether the punishment was for the same offense or for offenses arising out of the same transaction.
In the three leading cases from the United States Supreme Court, no issue has been made of this threshold requirement of double jeopardy analysis. In United States v. Halper, 490 U.S. 435, 437-38, 109 S.Ct. 1892, 1896, 104 L.Ed.2d 487 (1989), the elements of the criminal and civil statutory violations appear to have been substantially similar so as to have constituted the same offense for purposes of double jeopardy. In Austin v. United States, - U.S. -, 113 S.Ct. 2801, 2803, 125 L.Ed.2d 488 (1993), the challenge was based on the Eighth Amendment’s excessive fines clause, not the Fifth Amendment’s double jeopardy protection. In Department of Revenue of Montana v. Kurth Ranch, - U.S. -, 114 S.Ct. 1937, 1941, 128 L.Ed.2d 767 (1994), the issue was whether a tax on the possession of illegal drugs assessed after the State had imposed a criminal penalty for the same conduct may violate the double jeopardy provision of the Fifth Amendment.
Scope of Double Jeopardy Protection
Both the Texas and federal constitutions provide double jeopardy protection from being punished twice for “the same offense
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of *863life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const, amend. V (emphasis added).
No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.
Tex Const, art. I, § 14 (emphasis added).
Protection from being twice punished for offenses which arose out of the same transaction or occurrence was formerly provided in Texas by the doctrine of “carving.” Ex parte McWilliams, 634 S.W.2d 815, 822 (Tex.Crim.App.1980) (opinion on reh’g) (abandoning the carving doctrine). Carving had previously allowed the prosecutor to carve as large an offense out of a transaction as he could, but permitted him to cut only once. Id. at 828 (Clinton, J., dissenting). Carving was not based on any constitutional or statutory provision, but upon a tradition which proved to be unsound. Id. at 822-23.
The Order Below
The order of the trial court acknowledged that appellee’s application for writ of habeas corpus sought to bar further criminal prosecutions pending in the 232nd District Court in cause numbers 678,626 and 678,627 on principles of double jeopardy based upon a prior forfeiture proceeding in cause number 93-058525, styled The State of Texas v. $71,660.00 in U.S. Currency, et al., previously pending in the 151st District Court of Harris County, Texas. The pertinent portion of the order stated:
... The Court, having considered said application and having heard the evidence presented, as well as the argument of counsel, and having found and concluded that the forfeiture proceeding aforesaid was punitive in nature, arose out of the same occurrence as the criminal prosecutions aforesaid and that the amount forfeited was overwhelmingly disproportionate to the damages allegedly caused by the Applicant, is of the opinion, and hereby rules, that further criminal prosecution of the Applicant is barred by the double jeopardy provisions of the fifth Amendment to the United States Constitution and Article 1, § 14 of the Texas constitution ...
(emphasis added).1
Order Exceeded Proper Scope
The trial court’s order based a violation of double jeopardy on multiple punishments for matters which “arose out of the same occurrence,” not on multiple punishments for the same offense. It might be argued that the trial court merely utilized unartful language in its order, and that what was meant was a violation of double jeopardy because the forfeiture proceeding and the criminal prosecutions involved the same offense. Noticeably absent, however, is any comparison of elements required by the Blockburger2 rule. Furthermore, even though the State stipulated to the fact that the forfeiture proceedings and the criminal prosecutions involved matters which arose out of the same transaction, appellee did not offer any proof that the forfeiture proceedings and the criminal prosecutions concerned the same offense.
Indeed, it is unlikely that a forfeiture proceeding and a criminal prosecution will involve the same offense for purposes of double jeopardy analysis per the Blockburger test. The forfeiture proceeding is concerned with contraband, which is defined as property of any nature which is: (1) used or intended to be used in the commission of certain felonies, *864including controlled substances offenses; (2) the proceeds gained from the commission of such a felony; or (3) acquired with proceeds gained from the commission of such a felony. Tex.Code Crim.Proc.Ann. art. 59.01(2) (Vernon Supp.1995). Controlled substance offenses are concerned with the possession, manufacture, or delivery of controlled substances. Usually, the contraband itself in a forfeiture case is an element which is not present in the allegation of a controlled substance offense, while possession or delivery of the controlled substance itself is not an element of the forfeiture proof.
. The only scenario in which the seized contraband and the controlled substance subject to prosecution are the same is one in which there is no need for forfeiture proceedings under Tex.Code Crim.Proc.Ann. art. 59.01-.11 (Vernon Supp.1995) because the controlled substance is subject to summary forfeiture and destruction pursuant to Tex. Health & Safety Code Ann. § 481.153 (Vernon Pamph.1990). The only other scenario in which the same offense could be common to both a forfeiture and a criminal prosecution is where the contraband is used, or intended to be used, in the very offense subject to the criminal prosecution; for example, where the car is being used to deliver the very controlled substance which is charged in the criminal prosecution, or the scales are used to weigh the very controlled substance which is delivered and made subject to the criminal prosecution, or the money seized is the payment for the very controlled substance the delivery of which is prosecution in the criminal court.
Here, appellee presented no evidence to show that the contraband seized was not merely proceeds, or property acquired with proceeds, from the commission of controlled substances transactions other than those which were the subject of the criminal prosecutions in question. Therefore, not only did the trial court’s order erroneously find a violation of double jeopardy based on multiple punishments for matters arising out of the same occurrence, but it found a violation of double jeopardy in the absence of evidence that the matters in question constituted the same offense. Where the threshold requirement for double jeopardy analysis was not met, it is unnecessary to address whether the Texas forfeiture statute is punitive or remedial.
Conclusion
I would reverse the trial court’s order and dismiss the appeals of the two criminal cases. To the majority’s decision to affirm the trial court’s order, I respectfully dissent.
. The trial court crossed out the paragraph of the order which would have dismissed with prejudice the criminal prosecutions pending in cause numbers 678,626 and 678,627. Therefore, I would hold that the appeals in those cases be dismissed for want of any appealable order in their regard.
. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test is satisfied if each statutory offense requires the proof of a fact that the other does not. McWilliams, 634 S.W.2d at 824.