Opinion
No. 04-03-00950-CV
Delivered and Filed: February 23, 2005.
Appeal from the 341st Judicial District Court, Webb County, Texas, Trial Court No. 2003-Cvq-000885-D3, Honorable Elma T. Salinas Ender, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jesus Alfredo Garcia filed the underlying lawsuit against the City of Laredo and the Laredo Police Department (collectively the "City) seeking to recover $18,000.00 which had been seized from his vehicle after he was detained and charged with possession of marijuana. The City filed a plea to the jurisdiction asserting immunity from any conversion claim and further asserting that the $18,000.00 was in the possession of the U.S. Customs Service, which issued a custody receipt for the money. Garcia responded that his suit was a forfeiture proceeding governed by Chapter 59 of the Texas Code of Criminal Procedure. The trial court granted the City's plea. On appeal, Garcia contends that the trial court erred because: (1) the trial court had jurisdiction; (2) immunity is not applicable to a Chapter 59 proceeding and Garcia's request for the return of the $18,000.00 was not subject to the City's immunity assertion; and (3) transfer of the money to the U.S. Customs Service did not deprive the trial court of jurisdiction. We affirm the trial court's judgment.
The City explains in its plea to the jurisdiction that special agents from the Department of the Treasury, United States Custom Service were assisting in a High Intensity Drug Task Force that resulted in Garcia's detention and arrest and the seizure of the money.
Garcia's appellate issues focus exclusively on his contention that his suit is a forfeiture proceeding under Chapter 59. To the extent Garcia's pleading is construed as an action for conversion, the trial court's judgment is proper because the City is immune from any intentional tort claim. See Tex. Civ. Prac. Rem. Code Ann. § 101.057 (Vernon 1997); Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346, 349 (Tex.App.-Dallas 2004, pet. denied).
Whether a court has subject matter jurisdiction is a question of law. Texas Dept. of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo. Id. In deciding a plea to the jurisdiction, the court may consider the pleading and any evidence necessary to resolve the jurisdictional issues raised. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
Garcia contends that the trial court had jurisdiction under Chapter 59; however, article 59.04(a) only provides for a proceeding to be commenced by the attorney representing the state. See Tex. Code Crim. Proc. Ann. art. 59.04(a) (Vernon Supp. 2004-2005). Furthermore, Garcia concedes that a forfeiture under Chapter 59 is an in rem proceeding; therefore, the court's jurisdiction is generally dependent on the court's control over the res. One Hundred Ninety-One Thousand Four Hundred Fifty-Two Dollars v. State, 827 S.W.2d 430, 433 (Tex.App.-Corpus Christi 1992, writ denied). The release or removal of the res from the control of the court will terminate jurisdiction, unless the res is removed accidentally, fraudulently or improperly. Id.
Although Garcia objected to the documentary evidence attached to the City's plea, which included the custody receipt for the money, as being unsworn hearsay, Garcia did not object to the statements made by the City's attorney at the hearing regarding the money being transferred to the U.S. Treasury Department thirteen days after it was seized. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding that opponent's failure to object to unsworn statement of attorney constituted waiver of objection, causing statement to be considered as evidence). Accordingly, the evidence showed that the res had been removed from the control of the court before Garcia filed his lawsuit. Because the evidence showed that the res had been removed from the control of the court before Garcia filed his lawsuit, the trial court did not have jurisdiction when the lawsuit was filed. See One Hundred Ninety-One Thousand Four Hundred Fifty-Two Dollars v. State, 827 S.W.2d at 433; see also Poindexter v. State, 802 S.W.2d 386, 388 (Tex.App.-Corpus Christi 1990, writ denied) (jurisdiction established where money was in possession of State at the time the State filed the notice of forfeiture); Megason v. State, 791 S.W.2d 221, 223 (Tex.App.-Corpus Christi 1990, writ denied) (same). Accordingly, the trial court did not err in granting the City's plea, and the trial court's order is affirmed.
Garcia's pleading states that his attorney "has been informed that this case is going to be transferred to U.S. Customs even though there is no federal nexus to the case"; however, no evidence was presented to support Garcia's argument on appeal that the res was removed from the control of the court accidentally, fraudulently or improperly.