In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00177-CV ________________________
ANTHONY GOINGS AND 2004 CADILLAC CTS SEDAN, TEXAS LICENSE PLATE CK2V636 VIN #1G6DM577840147293, APPELLANTS
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 106th District Court Garza County, Texas Trial Court No. 12-11-06723; Honorable Carter T. Schildknecht, Presiding
October 20, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Anthony Goings, brings this appeal challenging the trial court’s
judgment ordering forfeiture of his 2004 Cadillac CTS Sedan, Texas License Plate
CK2V636, VIN #1G6DM577840147293. By issues one and two, Goings asserts the
trial court erred in denying his plea in bar asserting the affirmative defense of limitations
because (1) the State failed to commence suit by both filing notice and exercising due diligence in perfecting service within thirty days of seizure of the property and (2) the
State did not exercise due diligence as a matter of law. By issue three, Goings argues
the law detests forfeiture, and statutes permitting them should be strictly construed
against forfeiture and by his fourth issue, he maintains his general appearance did not
waive the limitations defense because it was entered after limitations had run. Finding
the State’s forfeiture claim to be barred by limitations, we reverse and render.
BACKGROUND
On October 16, 2012, following a report of a suspicious vehicle at a residence, a
Garza County Deputy was dispatched and discovered the residence had been
burglarized. Law enforcement agencies were notified that the suspected vehicle was a
silver Cadillac. The next morning a Cadillac matching that description was located at a
motel and a search revealed receipts bearing the name “Anthony Goings” as well as
property from other burglaries. Goings, a guest at the motel, was arrested and the
Cadillac was seized.
Inside the Cadillac was a “Nebraska Vehicle Purchase Contract,” a bill of sale
and a Nebraska Certificate of Title showing Goings paid $6,000 for a 2004 Cadillac CTS
the previous month in Hastings, Nebraska. Twenty-eight days after the seizure, on
November 14, 2012, the State filed Plaintiff’s Original Notice of Seizure and Intended
Forfeiture supported by a deputy’s sworn affidavit. On November 15th, despite the fact
that Goings was in custody at the Garza County Jail, the State sought to serve him by
certified mail at a residential street address in Kenesaw, Nebraska. That attempted
service was returned to sender. On December 6th, the State made a second attempt to
2 serve Goings by certified mail addressed to a post office box in Kenesaw. At that time,
Goings still remained incarcerated in Garza County. The second attempted citation was
also returned to sender.
By an amended answer filed on February 15, 2013,1 Goings raised limitations as
an affirmative defense and asserted the State failed to comply with article 59.04(a) of
the Texas Code of Criminal Procedure. He maintained the State did not serve him
within the statutory thirty-day limitations period, and because the State knew exactly
where he was at all times relevant to his limitations claim, it did not exercise due
diligence in attempting to serve him in a timely manner. On March 18, 2013, Goings
reiterated his affirmative defense of limitations by filing his plea in bar. Thereafter, on
April 12, 2013, the State obtained personal service of process on Goings at the Garza
County Jail.
At a contested hearing, the State’s explanation for the delay in service was a
“100% change in official personnel in the District Attorney’s office and the Sheriff’s
Office following the November [2012] elections.” The trial court denied Goings’s plea in
bar and proceeded with the forfeiture proceeding. The State presented evidence to
show Goings’s vehicle was used in criminal activity and therefore subject to forfeiture.
Goings did not present any witnesses. Based on the State’s case, the trial court found
sufficient evidence that the 2004 Cadillac CTS Sedan was used in the performance of
criminal activity and thus subject to seizure and forfeiture. This appeal resulted from the
trial court’s ruling.
1 Goings’s original answer was filed on February 7, 2013.
3 APPLICABLE LAW
Chapter 59 of the Texas Code of Criminal Procedure prescribes the procedures
governing civil forfeitures. TEX. CODE CRIM. PROC. ANN. art. 59.05 (a), (b) (West 2006);
State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam). A civil
forfeiture action is an in rem proceeding against contraband. Silver Chevrolet Pickup,
140 S.W.3d at 692. Contraband is property used or intended to be used in the
commission of certain felonies or proceeds derived from those felonies. Art. 59.01(2)
(West Supp. 2014); Silver Chevrolet Pickup, 140 S.W.3d at 692. The State has the
burden of proving by a preponderance of the evidence that property is subject to
forfeiture. Art. 59.05(b).
Chapter 59 authorizes the State to commence a forfeiture proceeding by filing its
notice of seizure and intended forfeiture and by perfecting service of process in the
same manner as provided in civil cases. See TEX. CODE CRIM. PROC. ANN. art. 59.04 (b)
(West Supp. 2014). The State has a limitations period of thirty days after seizure in
which to commence forfeiture. Id. at (a) (emphasis added).
A civil forfeiture proceeding commences with the filing of a petition. TEX. R. CIV.
P. 22. However, to satisfy the requirement that a forfeiture proceeding be commenced
within the applicable limitations period, the State must not only file the lawsuit within that
period, it must also serve process on the defendant within the same period. $6,453.00
v. State, 63 S.W.3d 533, 536 (Tex. App.—Waco 2001, no pet.). Service of process
may, however, be completed after the limitations period if the plaintiff exercises “due
diligence” in attempting to procure service in a timely manner. Gant v. DeLeon, 786
4 S.W.2d 259, 260 (Tex. 1990). When the State exercises due diligence, the date of
service relates back to the date of filing the petition. Id.
There is no bright-line rule to determine due diligence. In the context of a
forfeiture proceeding, the test for due diligence is whether the State (1) acted as an
ordinary prudent person would have under the same circumstances and (2) remained
diligent up until the defendant was served. See $6,453.00, 63 S.W.3d at 536. See also
Seagraves v. City of McKinney, 45 S.W.3d 779, 782 (Tex. App.—Dallas 2001, no pet.).
Extended periods of time in which no attempts at service are made, which are
unexplained, show a lack of due diligence as a matter of law. $6,453.00, 63 S.W.3d at
536; One 1991 Chevrolet Blazer v. State, 905 S.W.2d 443, 445 (Tex. App.—Amarillo
1995, no pet.) (holding that if no excuse for lack of timely service is offered or the time
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00177-CV ________________________
ANTHONY GOINGS AND 2004 CADILLAC CTS SEDAN, TEXAS LICENSE PLATE CK2V636 VIN #1G6DM577840147293, APPELLANTS
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 106th District Court Garza County, Texas Trial Court No. 12-11-06723; Honorable Carter T. Schildknecht, Presiding
October 20, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Anthony Goings, brings this appeal challenging the trial court’s
judgment ordering forfeiture of his 2004 Cadillac CTS Sedan, Texas License Plate
CK2V636, VIN #1G6DM577840147293. By issues one and two, Goings asserts the
trial court erred in denying his plea in bar asserting the affirmative defense of limitations
because (1) the State failed to commence suit by both filing notice and exercising due diligence in perfecting service within thirty days of seizure of the property and (2) the
State did not exercise due diligence as a matter of law. By issue three, Goings argues
the law detests forfeiture, and statutes permitting them should be strictly construed
against forfeiture and by his fourth issue, he maintains his general appearance did not
waive the limitations defense because it was entered after limitations had run. Finding
the State’s forfeiture claim to be barred by limitations, we reverse and render.
BACKGROUND
On October 16, 2012, following a report of a suspicious vehicle at a residence, a
Garza County Deputy was dispatched and discovered the residence had been
burglarized. Law enforcement agencies were notified that the suspected vehicle was a
silver Cadillac. The next morning a Cadillac matching that description was located at a
motel and a search revealed receipts bearing the name “Anthony Goings” as well as
property from other burglaries. Goings, a guest at the motel, was arrested and the
Cadillac was seized.
Inside the Cadillac was a “Nebraska Vehicle Purchase Contract,” a bill of sale
and a Nebraska Certificate of Title showing Goings paid $6,000 for a 2004 Cadillac CTS
the previous month in Hastings, Nebraska. Twenty-eight days after the seizure, on
November 14, 2012, the State filed Plaintiff’s Original Notice of Seizure and Intended
Forfeiture supported by a deputy’s sworn affidavit. On November 15th, despite the fact
that Goings was in custody at the Garza County Jail, the State sought to serve him by
certified mail at a residential street address in Kenesaw, Nebraska. That attempted
service was returned to sender. On December 6th, the State made a second attempt to
2 serve Goings by certified mail addressed to a post office box in Kenesaw. At that time,
Goings still remained incarcerated in Garza County. The second attempted citation was
also returned to sender.
By an amended answer filed on February 15, 2013,1 Goings raised limitations as
an affirmative defense and asserted the State failed to comply with article 59.04(a) of
the Texas Code of Criminal Procedure. He maintained the State did not serve him
within the statutory thirty-day limitations period, and because the State knew exactly
where he was at all times relevant to his limitations claim, it did not exercise due
diligence in attempting to serve him in a timely manner. On March 18, 2013, Goings
reiterated his affirmative defense of limitations by filing his plea in bar. Thereafter, on
April 12, 2013, the State obtained personal service of process on Goings at the Garza
County Jail.
At a contested hearing, the State’s explanation for the delay in service was a
“100% change in official personnel in the District Attorney’s office and the Sheriff’s
Office following the November [2012] elections.” The trial court denied Goings’s plea in
bar and proceeded with the forfeiture proceeding. The State presented evidence to
show Goings’s vehicle was used in criminal activity and therefore subject to forfeiture.
Goings did not present any witnesses. Based on the State’s case, the trial court found
sufficient evidence that the 2004 Cadillac CTS Sedan was used in the performance of
criminal activity and thus subject to seizure and forfeiture. This appeal resulted from the
trial court’s ruling.
1 Goings’s original answer was filed on February 7, 2013.
3 APPLICABLE LAW
Chapter 59 of the Texas Code of Criminal Procedure prescribes the procedures
governing civil forfeitures. TEX. CODE CRIM. PROC. ANN. art. 59.05 (a), (b) (West 2006);
State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam). A civil
forfeiture action is an in rem proceeding against contraband. Silver Chevrolet Pickup,
140 S.W.3d at 692. Contraband is property used or intended to be used in the
commission of certain felonies or proceeds derived from those felonies. Art. 59.01(2)
(West Supp. 2014); Silver Chevrolet Pickup, 140 S.W.3d at 692. The State has the
burden of proving by a preponderance of the evidence that property is subject to
forfeiture. Art. 59.05(b).
Chapter 59 authorizes the State to commence a forfeiture proceeding by filing its
notice of seizure and intended forfeiture and by perfecting service of process in the
same manner as provided in civil cases. See TEX. CODE CRIM. PROC. ANN. art. 59.04 (b)
(West Supp. 2014). The State has a limitations period of thirty days after seizure in
which to commence forfeiture. Id. at (a) (emphasis added).
A civil forfeiture proceeding commences with the filing of a petition. TEX. R. CIV.
P. 22. However, to satisfy the requirement that a forfeiture proceeding be commenced
within the applicable limitations period, the State must not only file the lawsuit within that
period, it must also serve process on the defendant within the same period. $6,453.00
v. State, 63 S.W.3d 533, 536 (Tex. App.—Waco 2001, no pet.). Service of process
may, however, be completed after the limitations period if the plaintiff exercises “due
diligence” in attempting to procure service in a timely manner. Gant v. DeLeon, 786
4 S.W.2d 259, 260 (Tex. 1990). When the State exercises due diligence, the date of
service relates back to the date of filing the petition. Id.
There is no bright-line rule to determine due diligence. In the context of a
forfeiture proceeding, the test for due diligence is whether the State (1) acted as an
ordinary prudent person would have under the same circumstances and (2) remained
diligent up until the defendant was served. See $6,453.00, 63 S.W.3d at 536. See also
Seagraves v. City of McKinney, 45 S.W.3d 779, 782 (Tex. App.—Dallas 2001, no pet.).
Extended periods of time in which no attempts at service are made, which are
unexplained, show a lack of due diligence as a matter of law. $6,453.00, 63 S.W.3d at
536; One 1991 Chevrolet Blazer v. State, 905 S.W.2d 443, 445 (Tex. App.—Amarillo
1995, no pet.) (holding that if no excuse for lack of timely service is offered or the time
that passed between the filing of the suit and the State’s actions negates the possibility
that reasonable diligence existed, lack of diligence will be found as matter of law).
ANALYSIS
By his first two issues, Goings contends (1) the State failed to commence suit by
both filing notice and exercising due diligence in perfecting service within thirty days of
seizure of the property and (2) its efforts to obtain service of process do not constitute
the exercise of due diligence as a matter of law. We agree.
The State raises a jurisdictional issue based on Goings’s general appearance
when he filed his original answer on February 7, 2013.2 This argument fails because a
2 Notwithstanding the State’s arguments to the contrary, jurisdiction is not the issue in this case. The issue is whether the State’s claims are barred by limitations.
5 party’s general appearance does not waive a limitations defense when the appearance
occurs after the limitations period has run and the plaintiff has not exercised due
diligence in serving the defendant. $24,156.00 in United States Currency v. State, 247
S.W.3d 739, 747 (Tex. App.—Texarkana 2008, no pet.). Because Goings’s appearance
was made after the date limitations ran, the question remains, did the State exercise
due diligence in seeking service of process?
Here, the State seized the 2004 Cadillac owned by Goings on October 17, 2012.
On November 14th, twenty-eight days after the date of seizure and two days before
expiration of the limitations period, the State commenced forfeiture proceedings by filing
its notice of seizure and intended forfeiture. Notwithstanding the fact that the State
knew or should have known exactly where Goings was (after all he was incarcerated in
the Garza County Jail), it made two failed attempts to serve Goings by certified mail.
After Goings’s plea in bar was filed, the State finally obtained personal service of
process on April 12, 2013, 149 days after the suit was filed.
In the underlying case, the trial court took judicial notice of the proceedings. The
documents contained in the court’s file established that Goings was not served within
the thirty-day limitations period. The burden then shifted to the State to show due
diligence was exercised in attempting to serve Goings within the limitations period.
$6,453.00, 63 S.W.3d at 536.
In its brief, the State admits it “did not address the issue of diligence in its
attempts to perfect service at the contested hearing because it was not appropriate or
necessary to the Court’s ruling.” Accordingly, by the State’s own admission, there is no
6 evidence of any due diligence in the record. Consequently, lack of diligence existed as
a matter of law and the trial court erred in denying Goings’s plea in bar. See One 1991
Chevrolet Blazer, 905 S.W.2d at 445 (holding lack of diligence as a matter of law where
no substantive excuse for the lack of timely service was offered and 140 days had
lapsed between filing suit and actual service). Without a showing of due diligence, there
can be no “relation back” to the filing of the petition on November 14, 2012.
Consequently, we conclude limitations bars the State’s forfeiture of property in this
case. Issues one and two are sustained.
CONCLUSION
Our disposition of issues one and two pretermits consideration of issues three
and four. TEX. R. APP. P. 47.1. We reverse the trial court’s judgment ordering forfeiture
of Goings’s 2004 Cadillac CTS Sedan, Texas License Plate CK2V636 VIN
#1G6DM577840147293 and render judgment that the State take nothing in the
underlying forfeiture proceeding.
Patrick A. Pirtle Justice