Lopez v. State

¶1OPINION

¶2The trial court ordered $11,000 cash which had been seized from appellant forfeited to the Calhoun County Sheriff’s Dept, under the Texas Controlled Substances Act, Tex.Rev.Civ.Stat.Ann.- art. 4476-15 § 5.07 (Vernon 1976) 1. Appellant raises two points, the first asserting that the State failed to set a hearing within thirty days, and the second challenging the sufficiency of the evidence to support the judgment. We reverse the trial court’s judgment.

¶3By point one, appellant complains that the State did not secure a setting for *273the forfeiture hearing within thirty days of the defendant’s answer, claiming that § 5.07(a) requires it. The State contests appellant’s standing and, alternatively, argues that the language in that section is directory rather than mandatory.

¶4The State’s Original Notice of Seizure and Intention to Forfeit alleged that appellant “may claim a right to ownership or possession of the property the subject of this suit.” It alleged that D.P.S. Officer Bryon K. Prall seized the $11,000 after discovering it during a consent search of a vehicle appellant operated. The only theory alleged to support the forfeiture was that the money was used in violation of art. 4476-15.

¶5Appellant filed a general denial on May 30,1989. On July 5,1989, appellant filed a Motion to Dismiss pursuant to § 5.07(a) of art. 4476-15 and requested a return of the money. Thereafter, the State immediately had the case set for July 6, 1989. Thus, no setting had been obtained within the thirty days after appellant filed his answer. Section 5.07(a) instructs, “If an answer is filed, a time for hearing on forfeiture shall be set within 30 days of filing the an-swer_” (emphasis added).

¶6Although older authorities are split on whether the shall is directory or mandatory2, we are persuaded by the action of our Supreme Court in denying writ in State v. $4097 in U.S. Currency, 773 S.W.2d 674, 676 (Tex.App.—Fort Worth 1989, writ denied). That case squarely held the thirty-day limitation for obtaining a setting mandatory3 (even though the State had requested a setting before the thirty days elapsed). The record in this case does not show any attempt by the State to have the case set until after the thirty days had elapsed and the defendant had filed his motion to dismiss. We are also mindful of the due process rights of property owners. We hold that the shall as used in § 5.07(a) is mandatory, and conclude that since the time had expired, the hearing was illegally set and held. In the most recent case found, the El Paso Court of Appeals has also followed the reasoning of $4097 in U.S. Currency, holding the provision that the State must obtain a setting within 30 days of the answer date is mandatory. State v. One 1986 Nissan, No. 08-89-3241-CV (Tex.App.—El Paso, June 27,1990) (not yet reported). The date selected is left to the court. There is no requirement that the hearing be held, but it must be set within 30 days of the answer date.

¶7At the hearing and although the State had never pleaded entitlement to the money under a claim of abandonment, the State presented evidence in support of the position that appellant had abandoned the seized money. On appeal, the State contends that appellant lacked standing to contest the forfeiture based on the alleged abandonment. However, the State did not raise the issue of abandonment until the hearing, at which point it was too late.

¶8Under Texas law, abandonment is a fact question. City of Anson v. Arnett, 250 S.W.2d 450, 454 (Tex.Civ.App.— Eastland 1952, writ ref’d n.r.e.). Abandonment is an owner’s relinquishment of a right *274with the intention to forsake and desert it. Texas Water Rights Comm’n v. Wright, 464 S.W.2d 642, 646 (Tex.1971). One who relies on abandonment has the burden of establishing it. Huffington v. Upchurch, 532 S.W.2d 576, 579 (Tex.1976). The evidence of abandonment developed during the illegal hearing will not support a judgment which should not have been rendered. We overrule point one.

¶9Because we have determined that the hearing was improper, we need not review the evidence and will not address point two. Tex.R.App.P. 90(a). We REVERSE the trial court’s judgment and RENDER that the money be returned to appellant.

¶10NYE, C.J., files a dissenting opinion.