I have three separate asset forfeitures in which the defendants are incarcerated. One is in federal custody and two are in TDCJ. One of the fellas in TDC has been served with the petition and filed an answer. The other two haven't even been served with their suits. Any advice on how best to serve them while they're in prison? I've tried certified mail but the returns come back unserved. As for the one who has answered, I assume I have to bench him up for any hearings, thereby making him default-proof. Anyone dealt with similar problems?
what I would do is contact the warden where they are imprisoned and ask how you can get them served. If they don't have employees who can serve them, then maybe the local constable's office can go serve them. Just a thought.
When I would serve them with the citation, I would send it to the sheriff's office in the county in which they were held and specifically tell them that the guy was in whichever prison unit.
As for serving them with copies of regular filings, could you ask the Court for permission to use regular mail in lieu of certified in light of their custody status? Sounds like you can't get the certified to go through and the guy probably doesn't have a fax machine in his cell.
And is there a right to be bench warranted in a civil matter? I'm not so sure.
I don't know whether he has a right to be benched up, but I can't see any purpose in setting a hearing without doing so. It's not like I can default him for failing to appear, right?
The burden is on the inmate to show why he deserves a bench warrant in light of several factors. Assuming your guy filed an answer pro se, he is not likely to properly petition for a BW, much less successfully argue for its issuance. Procedurally, you are going to be a winner and can then move for sanctions when he doesn't appear. You could get his pleadings struck and take a default.
Check out In re Z.L.T., 124 S.W.3d 163, (Tex. 2003) for the factors regarding an inmate getting a bench warrant in a civil matter.
You would need to do some convincing depending on your judge's views, but it is not out of the realm of possibilities.
This query was also posted on the Civil forum, where I posted a reply with two cases which provide authority for leaving the forfeiture respondent in jail.
With regard to whether the respondent has a right to be bench-warranted back for the forfeiture hearing, look at $13,720 v. State, 2004 Tex. App. LEXIS 9029 (Tex. App. � Dallas, 2004), in which a forfeiture respondent argued that his Sixth Amendment right to a "fair and impartial proceeding" was violated because his request for a bench warrant to attend the forfeiture hearing was not granted. The Court of Appeals in Dallas held that the Sixth Amendment pertains to a defendant's rights in "all criminal prosecutions," and does not pertain to a civil proceeding in forfeiture. The Court found no merit to the respondent�s complaint that he was not allowed to attend the forfeiture hearing.
You can also look to One 2000 Chevrolet Pickup v. State, 2003 Tex. App. LEXIS 3859 Tex. App. � San Antonio, 2003) in which the Court of Appeals held that the Court is under no affirmative duty to secure the attendance of an incarcerated forfeiture respondent. The Court further held that the respondent waived any right to appear by failing to request either a bench warrant or writ of habeas corpus ad testificandum.
What if the defendant is in federal custody?
All of this provides a really good reminder as to why it is important to have a system that gets the defendant served while in custody in your county very quickly after the seizure.
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