When the defendant in a seizure (Chapter59) action is in prison, and the judge sets the case for trial, what, if any, duty does the State have to bring the guy back for the hearing? Can it proceed in his absence? Must we wait til he gets out on his THIRD life sentence?

Legally, I don't think you have any duty to see that a party in TDC is brought to a forfeiture hearing.

That being said, I don't think my judge would look very highly on me if I went into a final hearing and expected a judgment in my favor because defendant failed to appear and I didn't issue a bench warrant for him. I'm guessing his response would be that the final hearing is postponed and he would "suggest" to me that the State issue a bench warrant to have the party brought back.

I have found that once brought back (assuming they don't have counsel), I can get them to agree to a judgment so that they get something out of the case ($100 or so). We typically just put the money on their books at the county jail and the money is then transferred to TDC by our Sheriff's Department when the inmate is returned.

Thanks, Robert, I am on the same page with you. I would like a few more folks to weigh in before I go to the powers that be for a commitment to either finance the return of this guy or let the suit go.

you could request the court appoint an attorney ad litem for the absent defendant. Your judge may look more favorably on this approach, especially if the attorney ad litem is given 30 or so days to "prepare".

How about a motion for summary judgment?

the problem that may occur with a motion for summary judgment is that it must be served on the defendant, and (with not much else to do than sit in the prison library) he is likely to file some sort of response, or maybe even a request for a hearing (non-evidentiary). I suppose it can't hurt to try - maybe the defendant doesn't file any response. However, if the defendant was served with the original suit and has not filed any response at all, a default should be easy - with no attorney for defendant, notice, etc. You can just point out to the judge that the defendant will get a copy of the default judgment (make sure to file your certificate of last known address) and still has the right to appeal / file a motion for new trial. I avoided asking for summary judgment since a non-answering defendant could be defaulted, and a defendant who had filed an answer was pretty likely to file some response to the motion for SJ.

I think that having an Attorney appointed is best, and can most times be paid out of the forfeiture funds.

If not, a defendant could always argue, in the future, that the same state that moved to forfeit his/her assets, and moved for a hearing, gave him notice of a hearing but then prevented his voluntary appearance. It's conceivable.

I agree with all comments. However, I think it depends on the judge. I don't think you have a duty, in a civil case, to issue a bench warrant. The Code states very specifically this is a in rem proceeding against the property. Some judges may not want to expend the funds to bring the person back, house them, and transport them back to TDC for property that may not be worth a lot of money. A couple of weeks ago when the claimant to the property did not appear (because he was in our county jail awaiting transport to TDC) and did not file the proper pre-trial documents per the court's standing pre-trial order, the Judge struck his answer and granted default. I didn't ask for that but that is what I got. Therefore, trial was cancelled. If I get an appeal on that issue, I will let everyone know.

All the replies have been interesting and informative. The solution our judge came up with was to schedule the trial via telphone. We are in the process of setting the date. Then you fax a form to the prison and they have the person available at the appropriate time.

I have on a couple of occasions settled cases with a prison inmate (one served, one never served) by telephone. The warden in both cases verified who I was then let the inmate call me collect. They were glad to get some money into their account.