Yes, a district attorney lost a civil seizure and forfeiture case against an out of state criminal because of a failure to check the defendant’s whereabouts. And the defendant was in the state’s custody the whole time!
This is not a complicated case. It is so very not complicated. And to prove it, this will be recited in bedtime story form.
Once upon a time, there was a silver 2004 Cadillac CTS sedan. A deputy in the county of Garza was looking for a silver Cadillac because his dispatcher told him it as a suspicious vehicle seen near a home that had been burglarized.
The deputy drove up to a motel and saw a silver Cadillac CTS and thought to himself that he should take a closer look. Sure enough, he found stolen property from, not one, but several burglaries. The owner of this Cadillac was one Anthony Goings of the town of Kenesaw, Nebraska.
Mr. Goings was arrested and put into the Garza County jail that very day, Oct. 16, 2012. And there he stayed for a very long time.
(Cue the slamming of the steel gate.)
While Mr. Goings was being booked into the jail, his Cadillac was being taken to a safe place where the county sheriff could be sure it would not be burglarized or stolen. After the sheriff had been babysitting the Cadillac for 28 days, his friend in the district attorney’s office in the neighboring county of Dawson filed a “Notice of Seizure and Intended Forfeiture.” This is what law officers do when they want to take away someone’s property because they think it was used to commit a crime, or came from the profits of a crime.
The notice was sent on Nov. 15, 2012 to Kenesaw, Nebraska. Of course, Mr. Goings was in the county of Garza jail, so he did not get the notice. The mailman brought that notice back with a message on the envelope: “Return to Sender.”
On Dec. 6, 2012, the district attorney sent another notice, and he sent the notice to the same address in Nebraska. Of course, this one came back same as the first, because … can you tell me why?
That’s right! Mr. Goings was still in the county jail. No, he was not playing hide-and-seek.
Boys and girls, the county of Garza has a little over 6,000 people living in it, and one town. That little town is Post, Texas. How many prisoners would you imagine there are in the county jail? The answer is not very many.
There are a couple of rules that you should know about that lawmen have to follow when they take someone’s Cadillac. Let’s say it’s your Cadillac, and the lawman takes it. Well, first, he has to tell you and a judge that he wants to keep it, and I mean for keeps. Next, the lawman has to make sure you got that message within 30 days of him telling the court this is what he wants to do. The first part is what lawyers call “filing notice,” and the second part is called “exercising due diligence.”
We are not sure how, because the Seventh Court of Appeals in Amarillo did not say, but Mr. Goings finally did find out about the lawman’s wishes. And in February and again in March of 2013, Mr. Goings through an attorney he hired, told the lawman that he was not told in time. So, no, the lawman could not take his Cadillac.
The district attorney in Lamesa, that’s in Dawson County again, did at last give Mr. Goings notice. A letter stating the state’s intentions was hand-delivered to Mr. Goings in the Garza County Jail on April 12, 2013. But this was 149 days after the lawsuit was filed.
A trial judge in the county of Garza, the Honorable Carter T. Schildknecht, let the state keep the car. Ms. Sarah B. Johnson of Lubbock, that’s Mr. Goings’ attorney, appealed to the Seventh District.
The Justice Patrick A. Pirtle of the Seventh in Amarillo–he wrote the opinion–wondered what the state told Judge Schildknecht about taking so long to tell Mr. Goings what they wanted.
“The state’s explanation for the delay in service was a ‘100 percent change in official personnel in the District Attorney’s office and the Sheriff’s Office following the November 2012 elections,'” Pirtle recited.
On appeal, the district attorney seemed a bit lost. Justice Pirtle noted that “the state raises a jurisdictional issue based on Goings’s general appearance when he filed his original answer on February 7, 2013.” Then Pirtle tucked a comment into a footnote, maybe because he was embarrassed for the district attorney, stating, “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.”
Pirtle then got to the state’s confession: “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 evidence of any due diligence in the record.”
Pirtle said the state knew or should have known the whole time where Mr. Goings was. Whenever it was that Mr. Goings got out of jail, he could have his 2004 silver Cadillac CTS back. And that was that.
Pirtle looked at this case with Chief Justice Brian Quinn and Justice James T. Campbell. Michael Munk was the district attorney for the state.
Now, what is the moral of our story?
Before you look up hill and down dale, check under your foot.