FOUR THOUSAND THREE HUNDRED THIRTY-FOUR DOLLARS ($4,334.00) IN U.S. CURRENCY; AND TWO (2) HANDGUNS, ET AL. v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-01-317-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

  FOUR THOUSAND THREE HUNDRED

  THIRTY-FOUR DOLLARS ($4,334.00)

  IN U.S. CURRENCY, TWO (2) HANDGUNS,

AND ONE (1) TANITA DIGITAL SCALE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Castillo

Appellant, Leonel Flores, Jr., appeals from a forfeiture ruling made by the trial court under chapter 59 of the code of criminal procedure. In a single issue presented, appellant contends that reasonable diligence was not exercised by the State in securing the issuance and service of the citation upon Flores and therefore the trial court erred in denying his First Amended Plea in Bar. We affirm.

PROCEDURAL HISTORY

Pursuant to a search warrant, on April 7, 2000, $4,334.00, two handguns, and one Tanita digital scale were seized from Flores=s apartment. On May 8, 2000, the State filed a petition and notice of seizure and intended forfeiture of Flores=s property. On that date, the State also requested and received permission to issue a citation through personal service to Flores. Personal service was attempted unsuccessfully on May 10 and 11, 2000. With the help of the local police department, the State continued to search unsuccessfully for appellant.

Appellant was never served with the citation, but on January 16, 2001, 249 days after the filing of the State=s petition, appellant filed an answer in the case, generally denying the allegations in the State=s petition, and a Plea in Bar to dismiss the State=s forfeiture action for failure to timely file suit. On January 23, 2001, appellant=s original Plea in Bar was denied by the trial court.[1] On January 24, 2001, appellant filed an Amended Plea in Bar, alleging that the suit was not timely filed and the State had failed to exercise diligence in issuing and serving the citation on Flores. After a hearing on January 31, 2001 at which the State put on a witness and offered evidence, the trial court found that the State had exercised due diligence in attempting to serve Flores and denied the Amended Plea in Bar. Flores then entered into an agreed judgment with the State, forfeiting the items. This appeal ensued.[2]

  RELEVANT FACTS[3]

The petition in this case was filed on May 8, 2000, within the statutory limitation period, and the State requested issuance of citation and personal service of the same on the same day of the filing. There were two unsuccessful attempts to locate the appellant at his last known address, within the thirty-day limitation period. The first attempt was made on May 10, 2000, and the next was made on May 11, 2000. Appellant was not present at that address on either day. On May 11, the manager of the apartment complex told the process server that appellant had moved following a drug raid.

After the two unsuccessful May attempts within the limitation period, the State, in July 2000, contacted an agent of the Corpus Christi Police Department to help locate and serve the appellant. The agent searched files for an updated address, the State=s attorney and agent spoke over the phone concerning the location of the appellant, and the agent contacted appellant=s friends for information.

In late August 2000, the State=s attorney and the service of process agent went to the appellant=s last known address and spoke with the apartment manager, who was unable to provide a forwarding address. At this time, the agent also searched the appellant=s criminal record, contacted the county jail to inquire if appellant was currently incarcerated, and searched appellant=s driver=s license records for a possible change of address. The State=s attorney then asked that the agent continue to periodically check with the county jail for appellant=s possible arrest and circulate a photograph of the appellant through the police department.

APPLICABLE LAW

1. In General

A civil action commences with the filing of a petition, Tex. R. Civ. P. 22, but such petition must be also filed within the applicable statute of limitations. $6,453 v. State, 63 S.W.3d 533, 536 (Tex. App.CWaco 2001, no pet.). Even when the petition is filed timely, however, the suit will be nonetheless barred by limitations unless the plaintiff also exercises due diligence in serving the defendant with process within the statute of limitation period. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Holstein v. Fed. Debt Mgmt., Inc., 902 S.W.2d 31, 34 (Tex. App.BHouston [1st Dist.] 1995, no writ).

The duty to exercise reasonable diligence exists until service is perfected. Martinez v. Becerra, 797 S.W.2d 283, 284 (Tex. App.CCorpus Christi 1990, no writ). The standard applicable to reasonable diligence is defined according to an ordinary prudent person acting under the same circumstances. Newman v. Broadus, 847 S.W.2d 249, 251 (Tex. App.BCorpus Christi 1992, no writ). Accordingly, the test for due diligence is whether the plaintiff: (1) acted as an ordinary prudent person would have under the same circumstances, and (2) was diligent up until the defendant was served. $6,453, 63 S.W.3d at 536.

Usually, the question of reasonable diligence is a fact question; however, if no excuse for the lack of timely service is offered, or the time passed between filing of the suit and the State=s actions negates the possibility that reasonable diligence existed, lack of diligence will be found as a matter of law. One 1991 Chevrolet Blazer, VIN #1GNDT13Z4M2302305, One Thousand Three Hundred Fifty-One Dollars and Ninety-Six Cents, and Approximately Twenty-Nine Pounds of Marijuana v. State, 905 S.W.2d 443,445 (Tex. App.CAmarillo 1995, no pet.). If reasonable diligence is applied, effective service may be made after the applicable limitations period, with the date of service relating back to the date that the petition was filed. Gant, 786 S.W.2d at 260.

2. Chapter 59 Forfeiture Actions

Forfeiture proceedings under chapter 59 are governed by the rules of civil procedure. Tex. Code Crim. Proc. Ann.art. 59.05 (Vernon Supp. 2002); F & H Invs., Inc. v. State, 55 S.W.3d 663, 668 (Tex. App.CWaco 2001, no pet.). Consequently, reasonable diligence is also required in the service of process for chapter 59 forfeiture proceedings. One 1991 Chevrolet Blazer, 905 S.W.2d at 444-45.

In a chapter 59 forfeiture proceeding, the State has a limitation period of thirty days after seizure in which to both file suit of forfeiture and diligently serve the appellant with notice of forfeiture. Tex. Code Crim. Proc. Ann. art. 59.04(a) (Vernon Supp. 2002); $6,453 v. State, 63 S.W.3d at 536.

ANALYSIS

In his sole issue presented, Flores argues that the trial court should have dismissed the suit because the State failed to exercise reasonable diligence in perfecting service on him. We disagree.

Appellant cites One 1991 Chevrolet Blazer v. State, 905 S.W.2d at 444-45, Eichel v. Ullah, 831 S.W.2d 42, 44 (Tex. App.BEl Paso 1992, no writ), Ortiz v. State, 24 S.W.3d 603, 605 (Tex. App.BCorpus Christi 2000, no pet.), and Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.BCorpus Christi 1991, no writ) to support his argument that reasonable diligence was not exercised. However, these cases are distinguishable from the present case because in each of the cited cases the delays were either unexplained or unreasonable according to a reasonable person in the same circumstance.

In Ortiz v. State and Hansler v. Mainka, the appellees provided the court with no explanation for the delay. Ortiz, 24 S.W.3d at 605; Hansler, 807 S.W.2d at 5. In both cases, the lack of explanation supports the finding of lack of diligence.

In the remaining two cases cited by appellant, the delays were unreasonable. In One 1991 Chevrolet Blazer, the appellee received permission to issue the citation within the prescribed time; however, actual service was delayed 140 days because the appellee chose not to administer out-of-state service. 905 S.W.2d at 445. The court held that this explanation was unreasonable according to an ordinary, reasonable person, and that the appellee lacked diligence in effectuating service. Id. at 445-46.

In Eichel v. Ullah, the appellant and appellee were involved in an automobile accident. 831 S.W.2d at 44. The appellant filed suit only four days before the expiration of the statute of limitations, and did not request service until two months after filing. Id. Further, nine months passed without any continued attempt at service. Id. The court held that the alleged explanations for delay were unreasonable, and further that the efforts at service made by appellant were insufficient and lacked diligence. Id. at 45.

All of the above cases are distinguishable from the present case because the explanation for delay was unreasonable, or non-existent, and efforts to serve clearly lacked diligence. In the present case, the explanations for delay are reasonable and, further, the appellee exhibited diligence in its on-going attempts at service. The facts of the present case are more similar to those presented in Hodge v. Smith, 856 S.W.2d 212, 215-17 (Tex. App.BHouston [1st Dist.] 1993, writ denied) and Witt v. Heaton, 10 S.W.3d 435, 436-37 (Tex. App.BBeaumont 2000, no pet.).

In Hodge, the appellee received permission for service on the same date he filed suit, within the limitations period. Hodge, 856 S.W.2d at 215. The initial attempt at service was unsuccessful and the appellee phoned the constable and the appellant=s former employer for information and a possible address. Id. at 215-16. These attempts too were unsuccessful, and service by publication was not achieved. Id. at 216. Finally, a private investigator was hired, and the appellant was located and served twenty-seven months after the expiration of the statute of limitations. Id. at 217. The Hodge court held that evidence supported the appellee=s diligence in attempts at service, and that he acted as an ordinary, reasonable person would in the same circumstance. Id. Therefore, the date of service related back to the date of filing suit, which was within the period of limitations. Id.

In Witt v. Heaton, delays in service occurred due to mistake and the plaintiff=s inability to locate the defendant. 10 S.W.3d at 436-37. The citation of service was timely requested on the date the suit was filed. Id. at 437. The citation was originally mailed to the wrong constable, and therefore returned. A second constable received the citation and request for service upon appellant, and attempted service on seven different occasions. Id. Finally, a third constable received and served the citation , almost five months after the statute of limitations. Id. The court held that the delays were reasonable and explainable, therefore providing evidence of diligence. Id. at 438.

In the present case, repeated attempts were made at locating and serving the appellant. As in Hodge and Witt, the request for citation of service was filed on the same date as the suit, thereby establishing an initial attempt at service within the limitation period. Hodge, 856 S.W.2d at 215; Witt, 10 S.W.3d at 436. Finally, like in Hodge and Witt, a succession of diligent attempts, utilizing a variety of means, were made to locate the appellant and effectuate service. We find that the evidence of the State=s efforts in the present case were sufficient to support the trial court=s finding that the delays in service were reasonable and explainable. We overrule appellant=s sole issue.

CONCLUSION

Having overruled the sole issue presented on appeal, we affirm the judgment of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 29th day of August, 2002.

1 The denial of appellant=s original Plea in Bar is not at issue in this appeal.

2 In the agreed judgment, Flores expressly reserved the right to appeal from the order denying his amended plea in bar. The agreement provided that A[t]he parties agree that the following findings and order of the court are conditioned upon and subject to the upholding of the Court=s Order of Denial of Respondent-Claimant=s Plea In Bar heretofore signed and entered by the Court on January 23, 2001, which is understood [sic] shall be appealed by Respondent-Claimant.@

3The following facts were uncontested at the hearing held on Flores=s first amended plea in bar on January 31, 2001. Some of the evidence was agreed to by the parties and some was introduced by the State via a witness and/or exhibits admitted.