dissenting.
This case was first heard by a panel composed of Justices Stephens, Vance, and Allen. It was unanimously determined that the case must be reversed and remanded to the trial court for a new trial. On motion for rehearing, the case was considered En Banc, and a majority of the En Banc court voted to affirm the judgment of the trial court, resulting in the withdrawal of the original opinion, and the substitution of the present opinion authored by Justice Guillot, writing for the majority. The original panel remains unpersuaded that the original opinion of the panel was incorrect, and accordingly, we dissent.
This dissent, as was the original opinion, is directed to appellant’s points of error in which she contends that the evidence established as a matter of law that her rights had been violated pursuant to 42 U.S.C.A. § 1983; or that there was sufficient evidence of a violation of 42 U.S.C.A. § 1983 to submit the case to the jury; and that the trial court erred in directing a verdict against appellant because if the Writ of Restitution allows the removal of appellant’s property without regard to due care, then such process violates appellant’s rights pursuant to the Fourteenth Amendment to the Constitution of the United States.
Facts
Conroy was a tenant in an apartment which was owned by Manos. The evidence shows that Conroy defaulted in the payment of rent in October 1981, resulting in Manos bringing a forcible entry and detain-er suit against her which she successfully defended. Introduced into evidence as Plaintiff’s Exhibit # 10 was a notice posted on appellant’s apartment door, in this first suit:
FINAL NOTICE
This is final notice for you to vacate at once the premises you now occupy. (Your property will be removed anytime after 10:00 A.M.)
CAUSE NO. (Blank)
JESSE R. DAWSON Constable, Precinct No. 8 Dallas County, Texas
By (Blank)
Deputy
The following month, in November 1981, Conroy again defaulted in payment of her rent, and again Manos brought a forcible entry and detainer suit against her, in a different Justice of the Peace Court. Her failure to answer the suit, which was shown to have been served upon her, resulted in the court rendering a default judgment against her. Following the default judgment, Manos timely requested a writ of restitution which was issued, and service of the writ was performed by two deputy constables. When the constables arrived at the apartment to serve the writ, appellant was not present. Manos’ apartment manager furnished two employees to the constables who directed the two employees to remove appellant’s property from the apartment and place it in a public parkway area. The record is void of any evidence that appellees exercised any other dominion over the property at any time.
Conroy argues that removal of her personal property, as was here done, violated her rights under 42 U.S.C.A. § 1983, as well as due process under the United States Constitution. Under these points, *128Conroy contends that the evidence established as a matter of law that her section 1983 rights were violated, or alternatively that there was sufficient evidence to require a jury finding on that issue. The third point contends that if a writ of restitution allows the removal of her property without regard to due care, then due process under the United States Constitution is violated.
Due Process As Guaranteed By The Fourteenth Amendment To The Constitution of the United States.
Section 1 of the Fourteenth Amendment to the Constitution of the United States provides that: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law....”
Conroy contends that she was deprived of her property in violation of the Fourteenth Amendment by the procedures employed in this case. We agree.
The Fourteenth Amendment affords a cause of action to individuals who are wronged by state actors. By its enactment of section 1983 to the Civil Rights Act, Congress provided a cause of action against citizens who “under color of” any state statute deprive any citizen of any rights, privileges, or immunities secured to those individuals by the Constitution. 42 U.S.C.A. § 1983. This enactment extended the cause of action provided against state actors under the Fourteenth Amendment to causes of action against individuals guilty of similar conduct acting “under color of” state law.
In Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the United States Supreme Court clearly enunciated the meaning of “under color of.” The Court, after citing numerous previous cases, reiterated their consistent ruling that: “[A] private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment.” The facts in Lugar were that a creditor brought an action against a debtor in the State of Virginia for recovery of a debt, and prior to judgment, in accordance with state law, filed an ex-parte petition alleging a belief that the debtor was disposing of or might dispose of his property in order to defeat his creditors. Acting upon the petition, a clerk of the state court issued a writ of attachment, which was then executed by the county sheriff, who left the property in the possession of the debt- or. Later the attachment was dismissed because the petitioner had failed to establish the statutory grounds for attachment alleged in the petition. The debtor then brought an action under section 1983 against the creditor alleging that the creditor acted jointly with the state to deprive him of his property without due process of law. The Supreme Court held that the Virginia statute was a product of the state; that by invoking its provisions for relief, the citizen was held to be a participant with the state and thus the citizen was “a state actor.”
In Lugar the rule was firmly established that a plaintiff in a section 1983 action must meet a two-fold test: first, it must be shown that a constitutionally guaranteed right was violated resulting from a source in state authority; and second, it must be shown under the facts of the case that the private parties may be appropriately characterized as “state actors.”
Analyzing the facts of our case, we have no difficulty in determining that Conroy was deprived of her personal property by the joint actions of appellees and the state. Appellees first sought relief under the state laws pertaining to forcible detainer; •relief having been granted, appellee’s apartment manager furnished two employees, who, acting upon instructions of state officers, removed Conroy’s personal property from protected premises, and placed them on an unprotected public parkway, where they were removed by thieves and vandals. The officers testified that if ap-pellees had not furnished employees to *129physically remove the property, they would have left it in the apartment. Their testimony was that their responsibility was only to work the writ and to see that everything was done correctly, and that they only supervised the removal of the property. They further stated that on some occasions the landlord would store the property, with their approval, yet their usual and customary procedure was to have the property placed on the street, as was done here. After the removal of the property to the parkway, the officers left the premises before any of the property had been taken. Appellee’s apartment manager testified that she had authorized the maintenance men to assist the state officers in the removal of the property; that she had viewed the property being placed on the public parkway; that she had taken no action to protect the property; and that she had watched while people picked up the property and removed it. The placement of the property on an unprotected public way, where it was stolen by thieves, and destroyed by vandals was an act of appellee “under color of law,” which resulted in depriving appellant of her property.
The next question is whether appellant was deprived of her property without due process of law. We conclude that she was so deprived. The Texas law of forcible detainer provides that the successful party to such a suit is entitled to possession of the premises. Martinez v. Beasley, 572 S.W.2d 83 (Tex.Civ.App.—Corpus Christi 1978, no writ). The writ of restitution, issued on application of appellees, commands the state officer to:
enter upon said tract or lot of land and into the building thereon situated, if any, and peaceable possession thereof restore to the said Plaintiff and of the goods, chattels, lands and tenements of the said Defendant you cause to be made the sum of 51.50 Dollars, costs of suit in this behalf expended, and your fees for executing this Writ.
Due process has been held to be a relative concept whose requirements must be determined on a case-by-case basis; procedural due process requirements include notice reasonably calculated to apprise a party of pending proceedings affecting him, and an opportunity to be heard at a reasonable time and in an effective manner. Reilly v. State, 566 P.2d 1283, 18 Wash. App. 245 (1977). Due process requires that an individual be given an opportunity for a hearing before he is deprived of any significant property interest; further, opportunity for such a hearing must be granted at a meaningful time and in a meaningful manner. Petition of Puget Sound Power & Light Company, 28 Wash.App. 615, 625 P.2d 723 (1981).
Time and again the Supreme Court of the United States has dealt with the questions of what constitutes “the right to be heard” within the meaning of procedural due process. Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), Mr. Justice Douglas, referring to Mullane, stated:
In the latter case we said that the right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce, or contest.
We recognize that appellant was served with process, and chose not to appear and contest. Usually, service in the first instance is sufficient to satisfy the notion of due process. However, in this ease we must look to see what notice was in fact given appellant. She was served with a form entitled Forcible Detainer in the Justice Court, styled Euphrates Apts. v. Cathy Conroy & All Occupants. This form commanded her to appear before the Justice of the Peace on a day certain to answer to the complaint of the plaintiff, which stated:
The nature of the Plaintiffs demand being suit upon possession of premises known as House No. 4301 Street Hart*130ford Apt. No. 122 in said precinct for possession and for costs.
As we read the citation, no notice was given Conroy that her failure to appear and contest the suit, would result in the loss of her personal belongings. Nor was any notice given in the writ of restitution, that her property would be removed and placed at peril. We are unwilling to read into the notices given appellant any notice that she was about to be deprived of her personal belongings.
The majority states in its opinion that the “constable put a notice to vacate on Con-roy’s door and that her property would be removed anytime after 10:00 a.m.” This notice is shown in its entirety in the dissent, and is in fact a notice issued under the first forcible entry and detainer suit. It is unsigned, undated, and no cause number is shown. It can hardly be said that this notice is meaningful as to time or manner as dictated by Puget Sound. Furthermore it was posted pursuant to the first case, and not the one of which complaint is made.
The majority also states “that it has long been held that to put the landlord in possession the officer must remove the tenant’s effects,” citing Ferguson v. Barnes, 274 S.W. 277 (Tex.Civ.App.—San Antonio 1925, writ dism’d) for its authority. Since Ferguson was handed down, it has never been cited for any proposition of law, much less the long standing law for which it is now cited. In Ferguson, the statement on which the majority relies was dictum, and was not material to the decision of the case. Furthermore, the writ of error notation “dismissed,” was used in 1925 to show lack of jurisdiction in the Supreme Court to consider the application, defective application, application filed too late, subject matter of controversy had ceased to exist, judgment of C.C.A. not one which “practically settles the case, and included cases otherwise within the jurisdiction of the Supreme Court where the error committed, if any, was not “of such importance to the jurisprudence of the State as in the opinion of the Supreme Court required correction.” 42 Texas Law Review Ass’n, Texas Rules of Form (5th ed. 1983) (and cases cited therein). Ferguson, under these facts could hardly be considered authority for long standing law.
The majority also concludes that no prohibited conduct occurred. We believe this holding to be directly opposite to the ruling in Lugar.
The dissenting justices conclude that ap-pellee was a state actor, acting under color of state law, and that those acts resulted in deprivation of appellant’s personal property without due process. Accordingly, we would hold that appellant was entitled to prosecute her cause of action under U.S. C.A. § 1983, and would reverse and remand the cause of action to the trial court.
Joined herein by VANCE and ALLEN, JJ.