Miсhael George Bickers appeals a summary judgment in favor of the State forfeiting his interest in a Mercedes automobile because it was used to transport contraband cocaine. We hold that a plea bargain made by Bickers in his criminal case, which bargain included a consent to the forfeiture of his car in this companiоn civil case, did not warrant a summary judgment for the State when Bickers contested the summary judgment with an affidavit that the car did not transport contraband cocaine.
The record reflects that Bickers was arrested on July 21, 1980, and charged in a criminal district court of the offense of transporting for delivery. This forfeiture proceeding under article 4476-15, § 5.03, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1982) was filed in a civil district court on July 31, 1980, in reliance on the facts of the criminal offense. Bickers initially answered the State’s claim for forfеiture with an unverified general denial. The State filed a motion for judgment because the answer was not verified as rеquired by the forfeiture statute. The trial court permitted Bickers to verify his answer and denied the State’s motion for judgment. The State then filed its motion for summary judgment relying upon Bickers’ “guilty” plea in the criminal case and a written plea bargаin signed by Bickers, which tersely stated: “AGREEMENT 15 yrs + 1 day . CC with Fed. CASE Forfeiture of MERCEDES time to be served in Fed Pen CC with [remainder illegible].” In accordаnce with this agreement, Bickers pled guilty to the lesser included offense under his indictment. Bickers contested the Statе’s motion and filed three affidavits, including one of his own in which he swore that “it was not true, as alleged, I had used the car tо transport cocaine for the purpose of delivering the cocaine to others.” Nevertheless, thе trial court held that it “had no jurisdiction to review or reverse the Criminal trial court’s determination to accept the terms of the plea bargain agreement” of Bickers and the State. Accordingly, the court rendered summary judgment for the State.
On appeal Bickers argues both that the State’s motion failed for want of prima facie proof that the сar transported contraband cocaine and that, in any event, his affidavit denying that the ear transported сontraband cocaine created a fact issue pre-
The State’s summary judgment proof relied solely on the written plea bargain of Bickers in the criminal case and the judgment entered thereon. Neither the pleа bargain nor the judgment evidences the transport of contraband cocaine in the Mercedes for delivery, but only Bickers’ admission of, and adjudged guilt of, “Unlawful Possession of a Controlled Substance, to wit Cocaine, a Second Degree Felony” (emphasis added). We hold that this limited summary judgment proof offered by the State failed to establish the essentiаl ground warranting forfeiture of the Mercedes, i.e., its transport of contraband cocaine for delivery. Moreover, еven if this proof could arguably be said to establish by inference that the Mercedes transported contraband cocaine, Bickers’ sworn denial of the same fact in response to the State’s motion for summary judgment raised a fact issue for trial and precludes a summary judgment. Town North National Bank v. Broaddus,
The State failed to respond to Bickers’ summary judgment defense in the trial court but stood on its limited contention that the plea bargain in the criminal case overcame Biсkers’ defenses. The State has suggested by its brief and argument new grounds justifying the summary judgment; however, we hold that to allow new grounds fоr a summary judgment to be urged on appeal without notice and opportunity to respond being given to Bickers, and without the trial court having the opportunity to consider and rule on such grounds, would be contrary to the provision of Tex.R.Civ.P. 166-A(c) authorizing summary judgment “on the issues as expressly set out in the motion, or in an answer or any other response.”
Aрart from their lack of timely pleading, these new grounds lack merit as well. First, the State urges that the plea bargain should be taken as an admission by Bickers of the facts to support forfeiture. We cannot accept this argumеnt because the plea bargain only admits Bickers’ guilt of possession of contraband cocaine, not thе transport thereof by either Bickers or the Mercedes. Next, the State argues that the plea bargain was a contract which the trial court rightfully enforced. We cannot accept this argument because the Statе did not by its pleading seek to enforce a contract, nor did it seek summary judgment on that ground. Additionally, the State arguеs that the plea bargain supported the entry of judgment as a “consent” or “agreed” judgment. We cannot aсcept this argument because it is evident that Bickers’ consent did not exist, but was vigorously denied by his summary judgment response, at the very moment the judgment was entered. See Vineyard v. Wilson,
Wе hold that the State may not sustain its summary judgment forfeiting the Mercedes car on theories neither contained in its plеadings; nor urged in its motion to the trial court; nor upon which Bickers was not given notice and an opportunity to respond.
Reversed and remanded.