Has anyone encountered a situation where the Respondent(Defendant) in a asset forfeiture case based on a drug delivery dies several months after filing and the probate lawyer is attempting to get the case transferred to the Statutory Probate Court under Section 5(b) of the Probate Code? There is no caselaw on point and very little out there to help. I have several arguments against transfer but wanted to see if anyone had addressed this same issue successfully? Thanks!

[This message was edited by Kim Minick on 10-11-04 at .]

Kim--I don't handle asset forfeitures anymore, but did them for almost 5 years here, and ran into this once a few years ago (lo and behold, he got popped by another dealer, I believe over a business dispute). You need to file a "Suggestion of Death" with the court handling your case, basically explaining the situation and asking that the court substitute his nearest relative in the action (or at least that's what I was told to do, and did, and everything turned out OK). Of course, we got a default, so this hasn't really been tested, but I'm pretty sure this was based on advice from our probate judge. Can't seem to e-mail it to you, but here's the language, just pretty it up and put a cert. of service to the lucky heir at the end. Good luck! If I can help with anything else, my e-mail address is meg@topgunns.com.

Suggestion of Death

"Plaintiff, the State of Texas, informs and suggests to the Court that on _______________ (date of death), the Property Owner in this cause, ______________(Defendant), died (a Certificate of Death is attached hereto). (Defendant) has left no estate, and ___________ (nearest relative), as the __________(relationship) of (Defendant), is his heir. Any judgment rendered in this case will be paid from the funds seized from (Defendant) prior to his death, and (Heir) will thus incur no potential liability as a result of the Court?s action in this case. The State of Texas therefore requests that the suit be continued in the name of (Heir), heir of (Defendant), as Property Owner, pursuant to the provisions of Rule 152 of the Texas Rules of Civil Procedure, and that the Clerk of this Court issue a scire facias notifying (Heir) to appear and answer in this cause."

Elizabeth Foley
Asst. Crim. D.A., Galveston County

Thanks for responding, Elizabeth. We have done the Suggestion of Death and the Writ of Scire Facias naming the dealer's mother as his personal representative to answer the suit and it is pending in a Criminal District Court. The mother's (also the dealer's Administratrix of the estate) probate attorney has now filed a motion with the Probate Court to transfer the case out of the district Court to the Probate Court. This is over $137,000 cash and I don't want my case to get mired down in the probate case. The probate case is probably going to get complicated and long. I was trying to find out if there was any way to avoid the transfer. Maybe I didn't make it clear. Thanks again!

Since your forfeiture proceeding is in rem, and not a matter of personal jurisdiction concerning the decedent, you might take a shot at filing a plea in abatement in the probate court, arguing that the criminal district court in the forfeiture proceeding has dominant jurisdiction as to the subject matter of your first-filed forfeiture action. They'll probably argue that your dealer's death rolled all of his "property" into his estate, and abated any claim against him, requiring instead a claim against his estate. All of that must proceed in probate court, they are likely to argue. Your answer to that assertion is that your claim isn't against the decedent; it's against property alleged to be contraband that, if it is contraband, is unlawful and cannot legally be acknowledged as part of the decedent's estate. The estate may appear to present its interest and any evidence concerning the nature of the property, but unless the court determines that it's not contraband, it's not properly subject to Probate Code jurisdiction. If the probate court denies the plea, and makes noise like it's going to proceed to dispose of "estate property," you could make the argument that the forfeiture court's jurisdiction will be destroyed by removal from its constructive custody of the res, giving you the kind of jurisdictional interference in tandem with your dominant jurisdiction claim necessary to authorize mandamus. Or you could take up probate law.

The attorney general's office may be able to assist you but they will want a piece
ofthe pie. Better than losing it and becoming a probate expert. I'll bet the attorney has
already offered to split it with you right?You might have a shot at the entire estate if it consists of property obtained from his drug dealing.If you get stuck in Probate court don't forget to use discovery to get all of the infromation youe need.

The status of property as "contraband" is not a matter "appertaining to estates" nor "incident to an estate" as defined in sec. 5A of the Probate Code. Your claim is not against an estate, even though as Scott says the other side will attempt to say it is. The statutory probate court would lack both the expertise and jurisdiction to handle a Ch. 59 matter. If the probate judge thinks differently, file a writ of prohibition.

Thank you to all of you that answered. I had many of the same arguments while there were others that you helped me think through more thoroughly. Scott, specifically , your argument regarding removing the constructive custody of the res thereby destroying the jurisdiction of the forfeiture court. Taking it one step farther, if the Probate court did transfer and then determined that all or part was contraband, the Probate Court would have no jurisdiction to order forfeiture of the property to the State because it is no longer appertaining to or incident to the estate. We have progressed no farther and now the original forfeiture court has lost jurisdiction. Also seems to defeat the purpose of the transfer statute to aid in judicial economy because nothing has been accomplished except to delay progress in the original court. Hopefully, this argument will work and end my foray into probate law ...thanks again all!
PS For anyone else that might encounter this problem... Another argument was that Chapter 59.04 requires that the forfeiture be filed in a district court and the Statutory Probate Court is a county court...

[This message was edited by Kim Minick on 10-08-04 at .]