Petition for Review from the Court of Appeals for the Tenth
District of Texas
appeal involves the forfeiture of two handguns pursuant to
Texas Code of Criminal Procedure article 18.19. Two questions
are presented. The first is whether the forfeiture
proceedings are civil in nature so that this Court has
jurisdiction. The second, which we may consider only if we
answer the first "yes, " is whether conviction for
possession of a weapon authorizes a forfeiture order
under article 18.19(e), which allows forfeiture based on
conviction of an offense involving use of the
weapon. The court of appeals determined that the forfeiture
proceedings are civil in nature and answered the second
question "yes." We agree that the proceedings are
civil but conclude that the answer to the second is
"no." Accordingly, we reverse.
Penal Code section 46.035(c) makes it an offense to carry a
handgun in the room where a governmental entity is meeting.
Mark Tafel, who was a Hamilton County commissioner at the
time and held a concealed handgun license, was arrested and
convicted for the unlawful carrying of two handguns into a
meeting of the commissioner's court. The guns were
discovered when the sheriff observed a bulge that he believed
was a weapon under Tafel's left arm. Following
Tafel's conviction, the State moved for forfeiture of the
guns. The State's motions were pursuant to Texas Code of
Criminal Procedure article 18.19(e), which provides for
forfeiture of a weapon following conviction for "an
offense involving the use of the weapon." Tex. Code
Crim. Proc. art. 18.19(e). The trial court granted the
appealed, challenging both the convictions and the forfeiture
orders. The court of appeals determined that the forfeiture
proceedings were civil in nature. It severed the appeals of
the forfeiture orders from the appeals of the convictions. In
a 2-1 decision, it affirmed the forfeiture orders on the
basis that "use" of a weapon under article 18.19(e)
includes simply possessing the weapon, and a separate and
distinct offense is not required. 524 S.W.3d 642, 644 (Tex.
appeal to this Court presents two arguments. First, he
maintains that article 18.19(e) forfeiture proceedings are
criminal law matters. That being so, he argues, the court of
appeals erroneously classified and docketed the forfeiture
proceedings as civil instead of criminal. Second, recognizing
that we might not agree with his first argument, he argues
that the trial court ordered forfeiture pursuant to article
18.19(e); he was only in possession of the guns and not using
them in any manner; and under article 18.19(e), his mere
possession of them does not constitute their "use."
countering Tafel's jurisdiction argument, the State
asserts that forfeiture under article 18.19(e) is a civil in
rem proceeding. That is so because property, not a person, is
what is subject to seizure. As to Tafel's second argument
addressing the merits of the appeal, the State argues that
the Court of Criminal Appeals has defined "use" to
include simple possession when the possession facilitates an
associated felony. See Patterson v. State, 769
S.W.2d 938, 940 (Tex. Crim. App. 1989). Thus, according to
the State, article 18.19(e) allows forfeiture following a
possession conviction under Chapter 46.
first address the jurisdiction issue. See Hous. Mun.
Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex.
2007) (holding that courts have jurisdiction to determine
their own jurisdiction). We begin our analysis by noting that
article 18.19's location within the Code of Criminal
Procedure is not dispositive as to whether forfeitures under
it are criminal matters. See Smith v. Doe, 538 U.S.
84, 94-95 (2003) (observing that codifying a sex offender
registration provision in a criminal procedure code was not
dispositive of the statute's nature); U.S. v. One
Assortment of 89 Firearms, 465 U.S. 354, 364 (1984)
(holding that a forfeiture provision for firearms was a civil
sanction despite codification of its authorizing statute in a
criminal code). In Hardy v. State, we concluded that
"[a] civil forfeiture proceeding under chapter 18 of the
Texas Code of Criminal Procedure is an in rem
procedure" and therefore is a "proceeding against
the property itself, not against the owner." Hardy
v. State, 102 S.W.3d 123, 126-27 (Tex. 2003). Tafel
correctly notes that we did not consider the entirety of
article 18 in Hardy but instead only examined
article 18.18, which addresses disposition of various
specified categories of items, including prohibited weapons.
Id. at 125. While article 18.18 specifically
includes prohibited weapons and article 18.19 encompasses
weapons that are not categorized as prohibited, the
distinction is immaterial. Because forfeiture proceedings are
against property, the proceedings are civil in rem matters.
State v. Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976);
see, e.g., Fant v. State, 931 S.W.2d 299,
307 (Tex. Crim. App. 1996); State v. Meyers, 328
S.W.2d 321, 325 (Tex. Civ. App.-Dallas 1959, writ ref'd
n.r.e.); McKee v. State, 318 S.W.2d 113, 118 (Tex.
Civ. App.-Amarillo 1958, writ ref'd n.r.e.). We conclude
that jurisdiction is proper in this Court.
consider whether the trial court's forfeiture orders made
pursuant to article 18.19(e) are valid when they were based
on Tafel's conviction under Chapter 46 of the Penal Code.
18.19 addresses the disposition of seized weapons under two
distinct circumstances: "Weapons seized in connection
with an offense involving the use of a weapon or an offense
under Penal Code Chapter 46." Tex. Code Crim. Proc. art.
18.19(a). Subsection (e) specifies the procedures and
requirements regarding forfeiture for weapons seized in
connection with the first basis for forfeiture-an offense
involving the use of a weapon:
(e) If the person found in possession of a weapon is
convicted of an offense involving the use of the weapon, . .
. the court entering judgment of conviction shall order . . .
forfeiture to the state. . . .
Code Crim. Proc. art. 18.19(e). Subsection (d) specifies the
procedures and requirements regarding forfeiture for weapons
seized in connection with the second basis for forfeiture-an
(d) A person either convicted or receiving deferred
adjudication under Chapter 46, Penal Code, is entitled to the
weapon seized upon request to the court in which the person
was convicted or placed on deferred adjudication. However,
the court entering the ...