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Stanley v. State

Court of Appeals of Texas, Ninth District, Beaumont

January 11, 2018

DAVID EARL STANLEY, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on December 27, 2017

         On Appeal from the County Court at Law Polk County, Texas Trial Cause No. CV03351.

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON Justice

         Pro se Appellant David Earl Stanley appeals the trial court's judgment of restitution lien foreclosure. Most of Stanley's arguments pertain to his underlying criminal case and a separate civil action in cause number CIV27223 that, according to Appellant, was non-suited. With respect to his complaints regarding the underlying criminal case, Stanley waived those complaints by failing to raise them on appeal of the criminal case. See Tex. R. App. P. 33.1. As to his complaints regarding the State's nonsuit in the civil action the State filed against him, we conclude that his complaint is without merit because the State, as the plaintiff in the civil action, had an absolute right to take a nonsuit because Stanley did not make a counter-claim for affirmative relief. See Tex. R. Civ. P. 162; BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990). However, as to Stanley's complaint regarding the procedural irregularity of the foreclosure action, we find that the trial court erred.

         On March 7, 2016, the State filed an Affidavit to Perfect a Restitution Lien (the affidavit) against property in which Stanley had an ownership interest. The affidavit stated that Stanley was then incarcerated and the subject property is $4, 300 that had been "seized by the Polk County Sheriff's Department on April 4, 2012 and is currently the subject of a forfeiture action in Cause number CIV27223 filed in the 258th Judicial District Court of Polk County[, ] Texas." According to the affidavit, the criminal case giving rise to the lien is State v. David Earl Stanley, cause number 19197, filed in the 411th Judicial District Court of Polk County, Texas, and the judgment of conviction in that criminal case ordered Stanley to pay American Modern Home Insurance Company restitution of $47, 635.42.

         The State filed the affidavit with the Polk County Clerk and requested that the clerk issue citation to Stanley. The county clerk issued citation with an attached copy of the affidavit, and the citation was forwarded to Stanley at the address of his incarceration. The citation informed Stanley that he had "been sued." Stanley filed an Answer in which he included a general denial and wherein he argued that the State seized his property "without probable cause during a warrantless arrest and search on April 4, 2012." Stanley also filed a motion for bench warrant to attend all proceedings in the case. In a letter dated June 29, 2016, Stanley advised the clerk that he had received a copy of the docket sheet for CV03351 and he alleged he never received copies of: the "Judgment of Restitution Lien Foreclosure/PNR" filed on May 26, 2016; a letter from the District Attorney's Office regarding a hearing date of April 27, 2016, and filed on March 29, 2016; and a "Civil Case Information Sheet/PNR" filed on March 30, 2016. Stanley asserted that "it appears action has been taken without my being notified or given an opportunity to respond." The court reporter of record for CV03351 notified this Court that she could "find no court date where [she] stenographically took a record in this case[, ]" and no reporter's record was filed in this appeal.

         On appeal, Stanley argues that (1) the State illegally forfeited the $4, 300 because it was illegally seized upon his arrest and in violation of his right to due process and constitutional rights; (2) the restitution lien was initiated illegally and in violation of his rights because it was initiated "47 months after initiating a malicious action in Cause No. CIV27223[]" which was non-suited; (3) the restitution lien foreclosure was "illegally implemented" upon him "without a prerequisite Order from a Court Ordering Appellant to pay restitution in Cause No. CV03351[;]" (4) he was not afforded fair and impartial treatment; (5) the trial court judge abused his discretion when he refused to recuse himself on Stanley's motion; and (6) Stanley's property was illegally seized "from the onset where no warrants were first obtained to arrest or search Appellant's home[.]" Stanley also contends that he was denied due process because he was not given proper notice of the hearing, he was not bench warranted as requested and the trial court held a hearing and the trial court "refused . . . his attempt to be heard."

         Article 42.22 of the Texas Code of Criminal Procedure, titled "Restitution Liens[, ]" provides, in relevant part, the following:

         Perfection

         Sec. 3.

(a) Except as provided by this section, a restitution lien attaches and is perfected when an affidavit to perfect the lien is filed in accordance with this article. . . . .

         Persons Who May File

         Sec. 5. The following persons may file an affidavit to ...


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