Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from County Court at Law No. 3 of Jefferson County,
Justices Benavides, Hinojosa, and Perkes
GREGORY T. PERKES Justice
civil forfeiture case, $49, 518.00 was seized during the
execution of a search warrant on Fred's Game Room in
Beaumont, Texas. The operator, appellant Farid Ali Datoo, was
convicted of keeping a gambling place, a Class A misdemeanor.
See Tex. Penal Code Ann. § 47.04. After his
conviction, the trial court ordered the seized money
forfeited to the Jefferson County District Attorney's
Office as gambling proceeds under Article 18.18(a) of the
Texas Code of Criminal Procedure. See Tex. Code
Crim. Proc. Ann. art. 18.18(a).
appeal,  Datoo contends that he was not subject to
the automatic forfeiture provisions under Article 18.18(a)
but was instead entitled to notice and a contested hearing
under Article 18.18(b)-(f). See id. art.
18.18(b)-(f). The State concedes this issue but counters that
the judgment should be affirmed because Datoo waived the
error. Alternatively, the State asks us to reverse the
judgment and remand the case so that it can proceed under
Article 18.18(b)-(f). Datoo requests that we render judgment
that the money be returned to him. We reverse and remand.
the final conviction of a person for possession of a gambling
device or equipment, altered gambling equipment, or gambling
paraphernalia . . . the court shall order [seized gambling
proceeds] forfeited to the state." Tex. Code Crim. Proc.
Ann. art. 18.18(a); see generally Tex. Penal Code
Ann. § 47.06 (titled, "Possession of Gambling
Device, Equipment, or Paraphernalia"). When, as here,
the person is convicted of another gambling offense, the
person is entitled to notice and a hearing to contest the
forfeiture. Tex. Code Crim. Proc. Ann. art. 18.18(b)-(f);
State v. Dugar, 553 S.W.2d 102, 104 (Tex. 1977). The
State concedes that because Datoo was not convicted for one
of the enumerated offenses under Article 18.18(a), he was
entitled to notice and a hearing under Article 18.18(b)-(f).
See Tex. Code Crim. Proc. Ann. art. 18.18(a)-(f);
Dugar, 553 S.W.2d at 104.
the State asks us to affirm the judgment, asserting that
Datoo waived any error by failing to make a timely objection
to the trial court. The State relies on Texas Rule of
Appellate Procedure 33.1(a) for the general proposition that
an appellant must present a "timely request, objection,
or motion" to the trial court to preserve the complaint
for appellate review. See Tex. R. App. P. 33.1(a).
Although this is a civil proceeding, Rule 33.1 applies with
equal force to criminal and civil proceedings, and we agree
with the Texas Court of Criminal Appeals that "[t]he
requirement that an objection be raised in the trial court
assumes that the appellant had the opportunity to raise it
there." Burt v. State, 396 S.W.3d 574, 577
(Tex. Crim. App. 2013) (citations omitted). In other words,
the operation of Rule 33.1(a) may be suspended when the
appellant does not have an opportunity to comply with the
rule. Landers v. State, 402 S.W.3d 252, 254 (Tex.
Crim. App. 2013). To hold otherwise would be inconsistent
with the basic tenets of due process-"notice and an
opportunity to be heard at a meaningful time and in a
meaningful manner." Univ. of Tex. Med. Sch. v.
Than, 901 S.W.2d 926, 930 (Tex. 1995) (citing
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
case, it is undisputed that the trial court signed the
forfeiture order without conducting a hearing and without
notice to Datoo. Thus, the only possible relief Datoo could
seek from the trial court was post judgment. Datoo filed his
notice of appeal within thirty days, meaning he had an
opportunity to timely file a motion for a new trial.
See Tex. R. Civ. P. 329a(b). However, while a motion
for a new trial is a prerequisite to presenting a complaint
on appeal under certain circumstances, none of those
circumstances are present here. See Tex. R. Civ. P.
324(a), (b). In a similar case, the Landers Court
rejected the State's argument that the defendant should
have preserved her complaint by filing a permissive, as
opposed to mandatory, motion for a new trial.
Landers, 402 S.W.3d at 253-55. Because the trial
court denied Datoo the opportunity to object at the time the
error was committed, and because no rule of procedure
compelled Datoo to seek post judgment relief before filing
his appeal, we conclude that Datoo may present his complaint
for the first time on appeal. See id.; see also Rickels
v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003)
(holding that the defendant could present his complaint for
the first time on appeal because "the [trial] court
modified the terms of [the defendant's] probation without
a hearing, and [the defendant] had no opportunity to
we turn to the proper disposition of the seized property.
Datoo cites $6, 300 in U.S. Currency v. State for
the proposition that we should render a judgment that the
money be returned to him. See No. 14-98-00738-CV,
2000 WL 1535242, at *2 (Tex. App.-Houston [14th Dist.] Oct.
19, 2000, pet. denied) (not designated for publication). The
"sole point of error" in that case was whether the
trial court erred in proceeding under Article 18.18(a) when
the appellant was convicted of an offense that was not listed
in Article 18.18(a). Id. at *1. After concluding
that the trial court had erred, the court of appeals, without
discussion, reversed the judgment and rendered a judgment
that the money be returned to the appellant. Id. at
*2; but see Pardue v. State, 252 S.W.3d 690, 697
& n.3 (Tex. App.-Texarkana 2008, no pet.) (vacating a
judgment under Article 18.18(a) but noting that the State was
not precluded from pursuing a forfeiture under an alternative
procedure). If the final disposition of the seized money was
presented as a distinct issue-as it has been in this case-it
is not apparent from the two-page opinion. Without an
explanation of its disposition, we find $6, 300 in U.S.
Currency unpersuasive on the issue before us and decline
to follow it.
State has requested instead that we remand the case for a
proceeding under Article 18.18(b)-(f). See Pardue,
252 S.W.3d at 697 & n.3. We agree that this is the proper
disposition. Datoo correctly identifies the trial court's
error in this case as a due process violation. Article
18.18(b)-(f) expressly requires notice and the opportunity
for an interested person to contest the proposed forfeiture
in an adversarial proceeding. Tex. Code Crim. Proc. Ann. art.
18.18(b)-(f); Hardy v. State, 102, S.W.3d 123, 127
(Tex. 2003). By ordering an automatic forfeiture under
Article 18.18(a), the trial court denied Datoo these due
process protections. See id.; Than, 901
S.W.2d at 930. However, it is well-settled that "the
remedy for a denial of due process is due process," not
a judgment on the merits. Than, 901 S.W.2d at 933
(citing Perry v. Sindermann, 408 U.S. 593, 603
Datoo's suggested disposition ignores the fact that the
State has already established its interest in the seized
property. The State's only burden in this forfeiture
process was to demonstrate probable cause to the magistrate
that issued the search warrant. See Tex. Code Crim.
Proc. Ann. art. 18.01(b); Hardy, 102 S.W.3d at 129.
Under Article 18.18(f), Datoo, not the State, now bears the
burden of proving by a preponderance of the evidence that the
seized money is not gambling proceeds and that he is entitled
to possession. See Tex. Code Crim. Proc. Ann. art.
18.18(f); Hardy 102, S.W.3d at 128-29. Thus, the
trial court's error did not divest the State of its
interest in the seized property nor relieve Datoo of his
burden to overcome the State's interest. The only thing
Datoo is entitled to under the statutory scheme is notice and
an opportunity to contest the forfeiture. See Tex.
Code Crim. Proc. Ann. art. 18.18(b)-(f).
we reverse the judgment and remand for further proceedings