Appeal from the 263rd District Court Harris County, Texas
Trial Court Cause No. 1516008
consists of Justices Jamison, Busby and Donovan.
appeal arises from a default judgment entered against
appellant Jessica Annie Beavers. We affirm.
State of Texas petitioned for forfeiture of gambling devices,
equipment, and proceeds that were seized from a business
located at 15370 S. Brentwood, Channelview, Harris County,
Texas. The game room from which the property was seized was
owned by Roger Boutee, who was convicted of keeping a
gambling place, a Class A misdemeanor offense. See
Tex. Penal Code § 47.04. The petition sought forfeiture
pursuant to article 18.18(b) of the Texas Code of Criminal
Procedure and alleged the property was seized from appellant.
See Tex. Code Crim. Proc. art. 18.18(b). The
petition was filed on July 5, 2016, in the 263rd Criminal
District Court of Harris County.
was sent by certified mail to appellant at two addresses: (1)
15370 S. Brentwood, Channelview, Texas; and (2) 16005 Cathy
Lane, Channelview, Texas. The notice sent to Brentwood was
signed for on July 8, 2016; the signature is illegible and no
name is printed below. On July 12, 2016, appellant signed the
receipt for the notice sent to her at Cathy Lane.
29, 2016, the judge of the 263rd Criminal District Court
signed a default judgment of forfeiture. The judgment recites
that appellant was served by certified mail on July 8, 2016,
and appellant made no answer or appearance.
August 15, 2016, appellant filed a motion for new trial and
motion to set aside judgment. Appellant contended she was
entitled to a new trial pursuant to Craddock v. Sunshine
Bus Line, Inc., 133 S.W.2d 125, 126 (Tex. 1939).
Regarding the first requirement of Craddock - that
the defendant demonstrate the failure to answer was due to
mistake or accident - appellant claimed she thought the
Motion to Return Seized Property filed by Boutee protected
the property from forfeiture. Appellant also alleged that she
relied on statements made by the assistant district attorney
("ADA") that a petition would be filed, and that
her attorney contacted the District Attorney's Office on
several occasions regarding return of the property. Appellant
attached an affidavit to her motion to satisfy the second
Craddock requirement -that the defendant set up a
meritorious defense. The affidavit recites that a motion to
return seized property had been filed by Boutee's
attorney and on the hearing date of that motion the ADA
informed Boutee's attorney that a petition would be
filed. The affidavit asserts Boutee and his attorney were not
aware that a petition had already been filed. Appellant
states "I was not aware that I needed to appear in Court
on July 29, 2016, as I thought that Roger would be properly
served with notice." Lastly, appellant's motion alleges
the third Craddock requisite - that a defendant
demonstrate that granting a new trial will not cause delay or
otherwise injury the plaintiff - is satisfied because she is
ready for trial.
State responded to the motion on September 28, 2016. The
trial court denied the motion by written order on October 5,
2016. Appellant subsequently filed a motion to reconsider, on
November 3, 2016, asserting "a criminal court does not
have jurisdiction to hear forfeiture
cases." The trial court also denied that motion by
written order. This appeal ensued.
sole issue claims the trial court abused its discretion
"when it held a hearing and signed a Final Judgment of
Forfeiture." Appellant raises two challenges to the
trial court's judgment. First, that the trial court
lacked jurisdiction to render it. Second, that the judgment
was rendered without proper notice and hearing.
contends the trial court lacked jurisdiction to render the
judgment because: (1) only the court of conviction against
Boutee had jurisdiction to order the forfeiture; and (2) as a
criminal court the 263rd District Court does not have
statutory jurisdiction to hear a civil forfeiture.
See Tex. Code Crim. Proc. art. 18.18(a), (b).
Because jurisdiction may be raised for the first time on
appeal, we address these arguments.
argues that only the court that rendered the judgment of
conviction has jurisdiction to order forfeiture of the seized
property. Appellant relies upon article 18.18(a) ...