Court of Appeals of Texas, Fourth District, San Antonio
FIFTY-ONE THOUSAND ONE HUNDRED AND TWENTY-FOUR DOLLARS in U.S. Currency, et al., Appellant
The STATE of Texas, Appellee
the 229th Judicial District Court, Starr County, Texas Trial
Court No. DC-17-658-A Honorable Jose Luis Garza, Judge
Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Beth
C. Martinez, Justice.
an appeal from a severed, partial summary judgment in favor
of the State of Texas based on deemed admissions. Appellant
Graciano Garcia asserts the trial court lacked subject matter
jurisdiction because the forfeiture petition was not timely
filed and the State failed to name Maria Soza-Lopez
("Soza") as an interest holder or serve her with
process within the thirty-day statute of limitations. Garcia
also contends the trial court erred by granting a partial
summary judgment based on deemed admissions. We reverse the
trial court's judgment and remand the cause for a new
November 3, 2017, investigators from the Starr County High
Intensity Drug Trafficking Area Task Force and U.S. Border
Patrol agents arrived at the home of Garcia and his wife Soza
based on a tip that narcotics were being stored at the home
and in a vacant lot adjacent to the home. Garcia gave the
investigators consent to search his home and gave them keys
to a travel trailer that was located on the property. After
the investigators found an eleven-pound brick of marijuana in
the travel trailer, Garcia withdrew his consent to the search
because he was told Soza was also going to be detained. After
Garcia withdrew his consent, the property was secured while a
valid search warrant was obtained. As a result of the search,
the investigators seized: (1) $51, 124 of U.S. currency
located in the home; (2) a 2010 beige Cadillac SRX; (3) a
2005 Ford F-150 truck; and (4) a 2006 Cherokee Travel
Trailer. During the investigation, Soza stated the currency
did not belong to her, and she did not know it was in the
November 21, 2017, the State filed its original notice of
seizure and intended forfeiture of the assets listed above
and named: Garcia as the owner of the currency and the
Cadillac SRX; Alejandro Rodriguez as the owner of the F-150;
and Jose Lopez as the owner of the travel trailer. These were
the only individuals named as claimants of the assets in the
original notice of seizure. The notice alleged that the date
of seizure was September 21, 2017, however, the
investigator's affidavit attached to the notice attested
to the actual seizure date of November 3, 2017. Garcia filed
an answer claiming he was an innocent owner of the alleged
contraband. Neither of the other claimants filed an answer.
December 21, 2017, the State sent Garcia a request for
admissions. Garcia did not respond. On January 26, 2018, the
State filed a motion for partial summary judgment based on
deemed admissions. The summary judgment hearing was scheduled
for March 3, 2018, and Garcia filed a motion to strike the
deemed admissions on February 28, 2018. Garcia claimed he was
not able to respond to the request for admissions because a
discrepancy with his work calendar caused a scheduling
conflict and he was not able to return to Starr County in
time to answer the admissions. The trial court denied the
motion to strike deemed admissions and granted partial
summary judgment in favor of the State as to the $51, 124 of
U.S. currency, only. Subsequently, the trial court granted
the State's motion to sever the forfeiture of the $51,
124 into a separate cause making the summary judgment final
as to that asset. Garcia appeals.
first issue, Garcia argues that the forfeiture proceeding
should be dismissed because Soza and Jose Infante, another
individual who was in possession of the F-150 truck during
the search, were not made parties to the original suit.
Because the trial court's summary judgment relates only
to the $51, 124 in U.S. currency, Infante's claims are
not at issue in this appeal.
claims Soza is an interest holder in the currency and,
because the State did not perfect service of process on Soza,
the forfeiture proceeding is barred by article 59.04's
thirty-day limitation period. Tex. Code Crim. Proc. Ann.
§ 59.04 (requiring the State's attorney to send
certified copies of the notice of seizure and intended
forfeiture to be served on any owner and possessory interest
holder of the seized assets within thirty days of the
seizure). Article 59.04(1) states: "Proceedings
commenced under this chapter may not proceed to hearing
unless the judge who is to conduct the hearing is satisfied
that this article has been complied with . . . ." Tex.
Code Crim. Proc. Ann. § 59.04(1).
State argues it caused certified copies of the notice to be
served on the only owner and interest holder in the currency
when it perfected service on Garcia. In support of this
argument, the State points to the seizing officers'
affidavit attesting that Soza disclaimed any possessory
interest in the currency. Garcia responds by pointing to an
affidavit Soza filed with the court after the summary
judgment hearing and the order granting severance in which
she attests that she did not make any representations to the
State that she did not care about the seized currency.
However, this affidavit does not contend that Soza had any
possessory interest in the currency, and the affidavit was
not before the trial court at the summary judgment hearing.
See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d
623, 625 (Tex. 1996) (an appellate court may only review
issues that were raised before the trial court on summary
judgment). Therefore, we hold the trial court did not err in
proceeding with the hearing because, based on the seizing
officers' affidavit, the trial court was satisfied that
all owners and possessory interest holders had been timely
served with process within the thirty-day time frame.
Garcia's first issue is overruled.
third issue, Garcia contends the State lacked subject matter
jurisdiction based on the date of seizure alleged in the
notice of seizure and intended forfeiture. However, the
seizing officers' affidavit attached to the original
notice of seizure and intended forfeiture attested that the
seizure occurred on November 3, 2017, and Garcia concedes in
his brief that the seizure occured on November 3, 2017.
Therefore, we must determine whether the mistaken date in the