The State of Texas v. Javier Gonzales and Christopher Clifford--Appeal from 79th Judicial District Court of Jim Wells County

MEMORANDUM OPINION

No. 04-06-00133-CV

The STATE of Texas ,

Appellant

v.

Javier GONZALEZ and Christopher Clifford ,

Appellees

From the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 05-12-44097-CV

Honorable Richard C. Terrell , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: August 2, 2006

AFFIRMED

Javier Gonzalez and Christopher Clifford filed a bill of review, contesting an agreed judgment of seizure and forfeiture pursuant to chapter 59 of the Texas Code of Criminal Procedure. In response, the State filed a plea to the jurisdiction, which the trial court denied. The State then brought this interlocutory appeal, arguing that the trial court does not have jurisdiction over the case because the State has not waived sovereign immunity. We disagree and affirm the trial court's order.

Background

At 3:44 p.m. on October 20, 2005, Javier Gonzalez and Christopher Clifford were traveling in Jim Wells County when they were stopped for a non-moving traffic violation by law enforcement officers from the County Task Force. During the stop, the officers discovered that Gonzalez and Clifford were in possession of $10,032.00 in cash and decided to detain them. That same day at 5:35 p.m., while Gonzalez and Clifford were in custody, the State filed an "Original Notice of Seizure and Intended Forfeiture." According to the petition, the cash found by the officers was contraband and subject to seizure and forfeiture pursuant to chapter 59 of the Texas Code of Criminal Procedure. At 6:40 p.m., Gonzalez and Clifford, while still in custody, were served with citation. According to Gonzalez and Clifford, when they were served with citation, they were also pressured to sign another document, an "Agreed Judgment of Forfeiture." That same night, upon signing the agreed judgment, Gonzalez and Clifford were released from police custody.

On October 25th, Gonzalez and Clifford retained an attorney who faxed a letter the next day to the District Attorney. The letter informed the District Attorney that Gonzalez and Clifford intended to dispute the forfeiture proceeding and requested copies of any documents they had signed. On the morning of October 27th, Gonzalez and Clifford's attorney faxed an answer to the District Attorney and mailed the original answer to the Jim Wells County District Clerk's Office. According to Gonzalez and Clifford, on the afternoon of October 27th, despite receiving their answer and a letter from their attorney and without notifying the trial court that they were now represented by counsel, the District Attorney presented the trial court with the agreed judgment, which it then signed. On December 13, 2005, after the time to file a motion for new trial had expired, the Jim Wells County District Attorney's Office faxed Gonzalez and Clifford's attorney a letter explaining that it had failed to respond to discovery because the agreed judgment had been entered. Along with the letter, the District Attorney's Office, for the first time, faxed a copy of the "Agreed Judgment" to Gonzalez and Clifford's attorney, which according to Gonzalez and Clifford, was the first time they became aware that the trial court had been presented with and had signed the judgment.

On December 21, 2005, because the deadline for filing a motion for a new trial had already expired, Gonzalez and Clifford filed a bill of review, contesting the agreed judgment of forfeiture. In response, the State filed a plea to the jurisdiction based on sovereign immunity. After conducting a hearing, the trial court denied the plea to the jurisdiction. The State now brings this interlocutory appeal.

Discussion

The State argues that it cannot be sued without a clear and unambiguous waiver of sovereign immunity and that "[t]here has been no waiver of sovereign immunity by the State regarding a Bill of Review in a forfeiture case under Chapter 59 of the Texas Code of Criminal Procedure."

Sovereign immunity protects the State from lawsuits for money damages. Reata Constr. Corp. v. City of Dallas, No. 02-1031, 2006 WL 1792219, at *2 (Tex. June 30, 2006). Sovereign immunity encompasses immunity from suit, which bars a lawsuit unless the State has consented, and immunity from liability, which protects the State from judgments even if it has consented to the suit.Id. Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction. Id.

Sovereign immunity is a common-law doctrine that initially developed without any legislative or constitutional enactment. Id. Although sovereign immunity was founded in common law, the Texas Supreme Court, recognizing that a lack of immunity may hamper governmental functions and deplete resources, has generally deferred to the Legislature to waive immunity "because the Legislature is better suited to address the conflicting policy issues involved." Id. at *3. But, "if the governmental entity injects itself into or chooses to engage in litigation to assert affirmative claims for monetary damages, the entity will presumably have made a decision to expend resources to pay litigation costs." Id. Thus, according to the supreme court, "a determination that a governmental entity's immunity from suit does not extend to a situation where the entity has filed suit is consistent with the policy issues involved with immunity." Id. "[I]t would be fundamentally unfair to allow a governmental entity to assert affirmative claims against a party while claiming it had immunity as to the party's claims against it." Id. Therefore, the supreme court recently held that the decision by a governmental entity to file suit for damages "encompassed a decision to leave its sphere of immunity from suit for claims against it which are germane to, connected with and properly defensive to claims the [governmental entity] asserts." Id. at *4.

Here, the State initiated the forfeiture proceeding and obtained a judgment. Gonzalez and Clifford filed a bill of review, seeking to vacate that judgment and render judgment that the State take nothing and that the cash in the amount of $10,032.00 be returned to them. Because the State initiated forfeiture proceedings and the bill of review was filed in an attempt to vacate those proceedings, we hold that sovereign immunity does not bar Gonzalez and Clifford's suit. See id.

Conclusion

Because the trial court did not err in denying the State's plea to the jurisdiction, we affirm the trial court's order.

Karen Angelini , Justice