Ex Parte Baucom
928 S.W.2d 748
Tex. App.
1996
Check Treatment

*1 Beaumont. BURGESS, Before STOVER DRAUGHN,* JJ. July Submitted Aug. Decided OPINION

DRAUGHN, (Assigned). Justice Baucom, H. contends the Appellant, James denying him habeas cor- trial court erred he pus The constitutional issue raises relief. a familiar and current one: a bar to of forfeiture constitutes criminal offense on prosecution later jeopardy. The of double items basis pickup civilly appellant were forfeited truck, gun, a hand and some charged with criminal offenses of He was (two separate of- attempted capital murder fenses) a controlled sub- habeas affirm cor- stance. We the denial pus relief. 14, 1995, Glynn May

On Walker Roger Trahan of the Beaumont Police * (Vernon 1988). assign- Draughn, sitting by Honorable Joe L. 74.003(b) pursuant § ment to Tex. Gov’t Code Ann.

749 Department implicates The instant the third of answered a disturbance com these they protections.1 plaint. complaint, Based on the entered appellant’s Appellant hotel room. was intoxi Appellant, relying opinion on a recent awakened, sleeping, cated and when by Appeals of issued the U.S. Court for the gun a at both officers. The

waved Circuit, position that Fifth takes the appellant methamphet arrested and found of forfeitures are se violative the consti on person. amine Pursuant to protection against jeopardy, double tutional (Vernon Tex.Code Crim. Proc. art. 59.02 they partially punitive. because are at least Supp.1996), they a seized 1986 Chevrolet acknowledge that Fifth Circuit court We truck, pickup motorcycle, Browning a and a approach. such appears adopted to have an pistol, digital .380 caliber semi-automatic Perez, (5th States v. 70 F.3d 345 United scales, camcorder, a video $555.00 Cir.1995),petition filed, cert. 64 U.S.L.W. cash. (U.S. 1996) (No. 95-1948). 31, May 3823 Ap note that the Fourteenth Court of 27,1993, May On appellant was indicted on peals, recently, more Austin Court of attempted capital counts of two murder. On Appeals reached similar conclusions. Fant v. 11, 1993, County June Jefferson District State, 830, (Tex.App 881 S.W.2d 834 . —Hous Attorney Original filed an Notice of Seizure 1994, granted); parte pet. [14th Dist.] ton Intention to Forfeit in the 58th District Ariza, (Tex.App 913 S.W.2d 215 . —Austin agreed judgment An Court. final in the civil 1995, filed). position Font takes the July 7, 1993, forfeiture case was entered on timing it is a matter which determines truck, forfeiting pickup gun implicates a civil double 16, on Finally, September jeopardy protection. effectively It held that 1993, appellant indicted, again this time unless the civil action is carried out possession on one count of of a controlled proceeding in the same as the criminal ac Appellant a substance. filed writ of habeas tion, prosecu it acts as a the criminal bar to corpus. He prosecu- asserted that further Fant, jeopardy on grounds. tion double su tion of the three criminal indictments was Ariza, hand, pra, at 834. on the other jeopardy grounds, barred double because “inescapable” reached the conclusion that the agreed final of forfeiture con- punish Texas forfeiture to statutes serves separate punishment stituted a for the same property, owner forfeited and thus consti offense. jeopardy barring tutes double the criminal error, single a point appellant In asserts Ariza, at prosecution. supra, 223. Each of right being to be free placed from twice Supreme these cases relied on U.S. jeopardy for the same offense was violated opinion Halper justify to Court’s their by pending against the indictments him for many, appeared Halper, conclusions. to to attempted capital murder and of a proposition stand for the that civil forfeiture deter, controlled substance. in part punish serves or and there implicates pro fore the Fifth Amendment’s Clause of the against jeopardy. tection v. U.S. Fifth Amendment Constitution 448-449, Halper, 490 U.S. at 109 S.Ct. (1) against protects three abuses: distinct Supreme opinions 1902. Other Court subse prosecution second for the same offense after quent Halper relied on to were also but (2) acquittal; prosecution second tress the conclusion that civil forfeitures au (3) conviction; tomatically same offense after and multi run afoul ple punishments for Department the same offense. Unit provision. Revenue Mon 435, 440, 767, 114 Halper, ed States v. 490 109 tana v. Kurth 511 S.Ct. (1989). 1892, 1897, 1937, (1994); 104 L.Ed.2d 487 128 L.Ed.2d 767 Austin v. S.Ct. 1, Appellant jeopardy. regard Stephens § also relies on article 14 of the stitution in separate analysis, 812, Constitution. (Tex.Crim.App.1990), No how- 806 815 ever, necessary 929, the Texas Court denied, because rt. 112 S.Ct. 502 U.S. ce the state Criminal has ruled constitution (1991). L.Ed.2d 289 greater protection than the U.S. Con- affords Halper States, Appeals. merely 509 U.S. Courts United (1993). statutory provided civil fine or other L.Ed.2d 488 dispro penalty may so extreme and opinion, Supreme In a recent portionate government’s damages to the laid to rest the notion that civil rem *3 punishment in it could constitute a second per implicate jeopardy forfeitures se double jeopardy. The re violation of double Court effect, protection. the Supreme In Court Halper manded to the district a so- court for generally not forfeitures do held that civil review, disproportionality the called so that “punishment” for the purposes of constitute regarding lower court could hear evidence Jeopardy v. Clause. United States damages government’s reduce the actual and - U.S. -, 2135, Ursery, 116 135 S.Ct. Halper’s liability nonpunitive to a It level. (1996). proceed 549 Civil L.Ed.2d forfeiture emphasized monetary the fixed nature home, against Ursery’s initiated were in penalty Halper out in the statute and set statute, po a federal forfeiture when under holding. Id. at case-specific the nature its marijuana adjacent growing to lice found -, Halper way at 2143. in no 116 S.Ct. stems, seeds, house, marijuana along with involved civil forfeiture Court did grow light house. and a inside the stalks to in apply intend its rationale rem forfei to monetary to settle the Ursery paid a amount at -, at How tures. Id. 116 S.Ct. Before the claim. settlement was forfeiture ever, disproportionality approach of Hal- consummated, manufac he was indicted for mistakenly applied by some was also tried, convicted, marijuana. turing He was to civil appellate courts prison. to 63 months in The and sentenced they per apparently eases to avoid what reversed, Appeals Court of Sixth Circuit forthcoming application of ceived to be the holding Jeopardy the Double Clause that civil forfeitures. v. jeopardy double to State punish prohibited government from both Romero, (Tex.App 858 907 S.W.2d . —Houston ing for a and a defendant criminal offense State, 1995, v. n.p.h.); Elmore 905 [1st Dist.] property for forfeiting his that same offense (Tex.App n.p.h.); 1995 S.W.2d 431 . —Waco separate separate proceeding. in civil A State, (Tex.App. 5 Cavazos v. 899 S.W.2d from the Ninth Circuit Court of 1995, pet.); parte no —SanAntonio Ca the same conclusion was con which reached mara, (Tex.App —Corpus 553 893 S.W.2d . appeal. Supreme solidated with State, pet.); v. 882 Christi Johnson reversed, holding opinions Court its (Tex.App [1st Dist.] S.W.2d 17 . —Houston Austin, Ranch, Kurth had been Halper, pet. granted); Walker and did not stand for the misinterpreted (Tex.App S.W.2d 485 . —Dallas any civil proposition that 'd). Supreme laid to Ursery, ref In Court punishment purposes ing constitutes disproportionality rest this notion Jeopardy Clause. The Court re the Double applied civil forfei Halper test could be history, legislative judicial to both ferred distinguished penal ture It civil cases. consistently out that it has held Halper from civil in rem ties such as that does not the Double Clause penalties” Statutory “civil are forfeitures. they are in rem forfeitures because apply to “liquidated designed rough dam- form punish do not in nature and constitute civil govern ages” harms suffered - at - - -, Ursery, ment. conduct. result of a defendant’s ment as a referred to at 2140-2142. S.Ct. - at -, 2145; Ursery, 116 S.Ct. at previous distinguished between cases which 445-446, at Halper, 490 U.S. prop against in rem civil forfeitures directed monetary Halper, there was fixed 1900. In penalties personam such as erty and in count penalty false medicare claim for each could, in some circum fines. The latter Halper convicted the crimi on which stances, thereby implicate punitive and be proceedings. monetary penalty This civil nal former, his jeopardy protections; than more 220 times was determined to be Id. torically, could not. dam greater government’s actual than ages, found was so divorced Halper which the Court distinguish on to The Court went government’s disproportionate from interpretation placed on it mistaken from the damages punishment. as to equivalent constitute Hal and was the functional aof succes 441-442, per, prosecution. 490 U.S. at 109 S.Ct. at 1898. sive criminal It affirmed the penalties designed compen Civil are thus appeals barring court of decision the tax as government, sate the violating prohibition against while civil jeop forfeitures - primarily designed ardy. at -, are property Ursery, to confíscate 116 S.Ct. at law, used in violation of the require and to illegal surrender of the fruits conduct. short, Supreme In Ursery Court in - Ursery, at -, 116 S.Ct. at 2145. cases, Halper, stated that none of the Aus forfeitures, may In it possible to deter tin, propo and Kurth stood for the seized, mine the property value of the but it sition that pun rem forfeitures were virtually impossible approximate subject ishment and *4 non-punitive

value of purposes par the of a pointed constraints. The Court out Hence, ticular civil forfeiture. the Court had it departure intended such a radical by concluded the case balancing test from the historical basis of in rem civil for monetary penalty between the imposed and feitures, specifically it would have said so. by the harm government inap suffered the - at -, Ursery, 116 S.Ct. at 2147. plicable to civil forfeitures. Id. employed The Court then two-part test prior derived from cases as a useful “ana In Ursery, the court distinguish went on to lytical tool” to determine whether for the Austin and Kurth Ranch from the extreme punitive. feitures were Id. prong The first interpretations placed on them the lower Congress the test asks Austin, intended courts. out, the pointed court did proceedings under the relevant forfeiture not involve the Jeopardy Double Clause at Second, statute to all, be criminal or civil. rather, Id. solely it was decided under the the Court considers whether the Excessive Fines Eighth Clause of the punitive are so in fact persuade as to Amendment. Forfeitures effected under the they them that cannot be viewed as civil in applicable federal statute in Austin are sub despite nature Congress. the intent of ject Id. to review for excessiveness under the Eighth Amendment, but that does not mean test, Court, part As the first of the the that such punitive forfeitures are so as to examining procedural mechanisms, after punishment constitute purposes hearings, administrative nature of the jeopardy. The court limited Austin proof required statute, the burden of in the to the Excessive Fines Eighth Clause of the found the forfeitures clearly were civil in Amendment import and refused analy its nature. The fact that the forfeitures were sis therein into jurispru property directed at person rather than at a - Ursery, at -, dence. 116 S.Ct. at proce indicated the civil nature of the dure. Further it held that when a forfeiture designated by Congress pro as civil In Kurth the Court considered rem, presumption ceeds is created that it whether a imposed state tax marijuana subject jeopardy. Ursery, is not - was invalid under Jeopardy at -, 3, 116 n. S.Ct. at n. 3. Clause, taxpayer already after the had been Court, however, was careful to note criminally of owning marijuana. convicted holding it was not in rem civil forfeitures are The Court examined the difference between exempt se from scope of the Double typical the Montana tax and the revenue- Only Clause. where the “clearest tax, raising marijuana and found the tax proof’ indicates that an in rem civil forfeiture unique in that it was conditioned on the punitive purpose is “so either in or effect” as crime, commission of a only and was levied equivalent proceeding, to a criminal will taxpayer after the had been arrested. The subject such forfeiture be to the Double taxpayer further noted that the did not Jeopardy Clause. Id. possess marijuana own or at the time the tax imposed. was The Court found that explain The Court went on to that even despite the fact that though Montana had labeled pur- a forfeiture statute serves the tax, nature, punitive deterrence, sanction a it was pose of long it has held that this subsequent may as seizure and the

purpose serve civil as well criminal State’s Further, goals. appellant’s property it out that the mere thereunder not a punishment bringing is tied to crimi it within fact that a forfeiture statute criminal activity protections Jeop- nal falls far short of “clearest of the Double ambit pro necessary to proof” ardy show that Clauses the United States Texas nature, ceedings Accordingly, ap- are criminal there find we Constitutions. fore, subject Jeopardy protections. subsequent to Double pellant’s attempt- for indictments - at -, Ursery, capital murder and con- ed that in rem civil forfei The Court concluded constitutionally trolled substance were punishment neither nor criminal tures are barred. Jeopardy. Id. purposes of Double points of overrule error and Ursery to Applying the rationale of application judgment denying affirm statute, that the Texas forfeiture we find Corpus. for Writ Habeas nature the statute is clear. Tex.Code (Vernon 59.02, Proc. Ann. arts. 59.05 Crim. BURGESS, Justice, dissenting. parties All Supp.1996). in the forfei majority, respectfully I dissent. comply proceedings ture must with rules “analytical applying two-pronged tool” See, suits. *5 pleading required civil Ursery reaches conclusion discussed 59.05(a). art. The trial in forfeiture Texas is civil nature Forfeiture Statute required to the same be conducted therefore, within cases, as other and the manner State’s Ap protection. Like the Austin Court proof proceeding is burden of in such and, rationale, I peals adopting reach their standard, by preponderance “inescapable there is conclusion” 59.05(b). See, legislature art. The evidence. punitive proof the is so clearest Texas statute pur spelled intended specifically out that the it criminal in in form effect as to render pose of the statute remedial rather than was nature, in despite Legislature’s stated See, 59.05(e). statute

punitive. art. Ariza, contrary. Parte tent to the person provides remedy a civil who (Tex.App. — Austin ownership property. claims in the seized filed). judgment. I would reverse may security person by posting proper See, replevy property. or bond the seized 59.02(b). The forfeiture statute

art. requisites Ursery all the out

has set nature, rather it as civil in than

establish

punitive.

Here, appellant given proper notice of required by hearing

the civil appeared WILLIAMS, Appellant, statute. His behalf counsel Richard James pre- proceedings. The State at the forfeiture appellant undisputed sented evidence Texas, Appellee. The STATE of handgun at waved the seized presented evidence officers. The State also 14-94-00215-CR, 14-94-00216-CR. Nos. a controlled substance that the found Texas, appellant. He entered Dist.). (14th Houston agreed final as to forfeiture into an handgun, pickup, of the Aug. facts

After careful consideration case, applying and after the rationale of

this it, Ursery find that the civil we forfeiture statute is

nature of the Texas therefore, established;

clearly