concurring.
Applicant pled guilty to possession of cocaine and was sentenced to fifteen years imprisonment and a fíne of $5000. The date of his arrest was June 22, 1993 and the date of his conviction was May 5,1994.
In July of 1993, applicant received a notice from the Texas Comptroller of Public Accounts that tax was due under Texas Tax Code Section 159.101(a) on the cocaine that was the subject of his arrest. The total amount of tax due, including penalties, was $29,920. The Comptroller issued a tax lien in the amount of $29,920, which was filed in Coleman County on August 2,1993.
Also, in July of 1993 the Comptroller sent a notice to applicant’s bank ordering the bank to freeze any assets of applicant it had in its possession. The bank placed a hold on applicant’s certificate of deposit as well as $3347.46 applicant had on deposit in his accounts. Applicant contested the amount of tax due and, after a hearing, the administrative law judge ruled, on February 22, 1995, the amount of tax due on the cocaine was $21,200.
This Court has held the Texas controlled substance tax is a punishment as that term is defined by the double jeopardy clause of the Fifth Amendment to the United States Constitution. Stennett v. State, 941 S.W.2d 914 (Tex.Crim.App.1996). See also, Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Therefore, the Texas controlled substances tax cannot be imposed in a separate proceeding from that in which the individual is placed in jeopardy of criminal punishment for possession or sale of the same controlled substances against which imposition of the tax is sought.
In Stennett, however, although finding the Texas controlled substances tax in general punishment, we did not resolve the issue of when it becomes a “punishment” with respect to an individual so as to implicate his double jeopardy rights. Left unanswered was whether merely sending a notice by the Comptroller of tax due to the individual— absent any action by the Comptroller to collect the tax — is “punishment” thus barring any subsequent criminal prosecution for possession or delivery of the same controlled substance on which the tax is alleged by the notice to be due. Stennett (Mansfield, J., dissenting), supra, at 922.
In Ex parte Chappell, 959 S.W.2d 627 (Tex.Crim.App.1998), applicant was indicted for aggravated delivery of cocaine. Subsequently, applicant received a notice from the Comptroller for tax due of $11,200 on the same cocaine that gave rise to the indictment. He then pled guilty to the indictment and was assessed a prison sentence and a fine. The Comptroller then dismissed the tax assessment made against applicant.
We held that the Comptroller’s mere notice indicating the amount of the drug tax due from applicant was not “punishment” because “punishment” consists in the taking of “life, liberty or property.” Chappell, at 629. See also United States v. Sanchez-Escareno, 950 F.2d 193, 201 (5th Cir.1991), cert. denied, 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992). We found significant the Comptroller had taken no action to collect the tax (by obtaining a judgment to recover the tax, or by seizing or freezing property of applicant to force payment of the tax, or by levying or otherwise encumbering assets of the applicant to recover the tax). Nor was there a final determination through a hearing before an administrative law judge of tax liability. Chappell, at 629. See People v. Litchfield, 902 P.2d 921, 925 (Colo.App.1995), *217aff'd. on other grounds, 918 P.2d 1099 (Colo.1996).
In the present case, the Comptroller’s actions went far beyond “mere assessment,” and constitute collection, or attempted collection, of the controlled substance tax. These actions included the filing of a tax lien as well as sending a freeze notice to applicant’s bank. These actions, by adversely affecting his ability to sell or otherwise use his property, constituted at least a temporary deprivation of property and is a form of “punishment.” Subsequently, an administrative hearing was held, after which it was finally determined applicant owed controlled ■ substance tax under Texas Tax Code Section 159.
Accordingly, I must once again state that mere sending of a notice of tax due on controlled substances — absent any action to collect the tax — by the Comptroller is not “punishment” implicating the double jeopardy clause. I agree the Court’s disposition of this matter as it is clear'the actions taken by the Comptroller, described above, to collect the tax resulted in applicant’s being “punished” as he was deprived of his right to the unencumbered use of his property and thus those actions constituted a “taking” of his property.
However, this particular “punishment” did not implicate applicant’s double jeopardy rights until after he was convicted of possession of the cocaine that subsequently resulted in final imposition of the drug tax. In other words, it was subsequent to his cocaine conviction that his liability for the drug tax became final, after the administrative hearing and he only then faced the permanent loss of his assets. Therefore, while the double jeopardy clause would prevent the Comptroller from actual collection of the drug tax he determined to be due, it does not affect applicant’s conviction for possession of the cocaine that resulted in the finding of tax due.
With these comments I join the opinion of the Court.