No. 08-03-00239-CVCourt of Appeals of Texas, Eighth District, El Paso.
July 15, 2004.

Appeal from the 120th District Court of El Paso County, Texas, (Tc#2002-2251).

Before Panel No. 1, LARSEN, McCLURE, and CHEW, JJ.


In this forfeiture proceeding, the trial judge rendered a default judgment against Melchor Cota and Jose Cota because their attorney was six-to-twenty minutes late for a status hearing. The State agrees with the Cotas that the trial judge’s action was an abuse of discretion. We reverse and remand

Procedural and Factual Background[1]
The State filed an Original Notice of Seizure and Intended Forfeiture, requesting forfeiture of $4,528 seized from the Cotas. The Cotas each filed an answer. The case was then set for a status hearing at 9:30 a.m. on March 7, 2003. The Cotas’ attorney was between six and twenty minutes late for the hearing.[2] Before the attorney arrived, the judge sua sponte rendered a default judgment.

The Cotas filed a sworn motion for new trial. Among other things, the motion stated that the Cotas and the State had been involved in serious settlement negotiations before the day of the status hearing. In an affidavit attached to the motion, the Cotas’ attorney stated that after the default judgment was rendered, she and an assistant district attorney continued to negotiate a settlement, but the trial judge “made it quite clear that he would not sign an agreed judgment or approve a settlement agreement in the case.” The attorney also explained in the affidavit that she was late for the status hearing because she was in federal court and the proceedings in that court did not end as early as she had expected. This explanation was supported by an attached letter from the federal judge, who asked the trial judge to “consider [the attorney’s] delayed appearance to be my responsibility rather than hers.” Nevertheless, the trial judge refused to grant a new trial, and this appeal followed.

Forfeiture proceedings “shall proceed to trial in the same manner as in other civil cases.” Tex. Code Crim. Proc. Ann. art. 59.05(b) (Vernon Supp. 2004); see also Tex. Code Crim. Proc. Ann. art. 59.04(a)-(b) (Vernon Supp. 2004). After a defendant has made an appearance in a case, he or she is entitled to notice of the trial setting as a matter of due process. LBL Oil Co. v. Int’l Power Servs., 777 S.W.2d 390, 390-91 (Tex. 1989). A hearing that effectively disposes of the case is a trial setting. See id. at 391; Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex. App.-Houston [1st Dist.] 1995, no writ). Therefore, it is a denial of due process and an abuse of discretion to convert a pretrial conference into a default judgment hearing without notice to the defendant of that possibility. See Murphree, 937 S.W.2d at 495; Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.-Houston [1st Dist.] 1994, no writ).

In this case, it is undisputed that the Cotas had no notice that a default judgment could be rendered against them if their attorney was late for the status hearing. Accordingly, the trial judge abused his discretion by rendering the default judgment.

Moreover, assuming the Cotas did have notice that the status hearing could be converted into a default-judgment hearing, the State concedes that they did not have forty-five days’ notice of the hearing. This too invalidates the default judgment. See Tex. R. Civ. P. 245; Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.-El Paso 2000, no pet.).

The State also concedes that no evidence was presented by the State and that no record was made of the status hearing. A trial judge may not render a post-answer default judgment unless the plaintiff offers evidence to prove all aspects of its case. Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 1994). And when a defendant cannot obtain a reporter’s record because no record was made, the defendant is entitled to a new trial. Carstar Collision, Inc. v. Mercury Fin. Co., 23 S.W.3d 368, 370 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). For these reasons as well, the default judgment is invalid.

For the reasons stated herein, the Cotas’ issue on appeal is sustained. The trial court’s judgment is reversed, and the cause is remanded for a new trial.

[1] Rule 38 of the Texas Rules of Appellate Procedure requires an appellant to include in its brief “the facts pertinent to the issues or points presented.” TEX. R. APP. P. 38.1(f). In a civilcase, the court will accept as true the facts stated in the appellant’s brief unless another party contradicts them. Id. In its brief, the State expressly does not dispute the facts stated in the Cotas’ brief. Therefore, we accept those facts as true.

We have previously considered the facts of this case as they related to the trial judge’s “abusive noncompliance” with the recusal procedure in another case. See In re Chavez, 130 S.W.3d 107, 111, 116 (Tex. App.-El Paso 2003, orig. proceeding). The Court of Criminal Appeals has held that these facts and others demonstrate that the trial judge is biased as a matter of law against the attorneys involved in this case. See De Leon v. Aguilar, 127 S.W.3d 1, 2, 5-6 (Tex.Crim.App. 2004).

[2] In an affidavit attached to the motion for new trial, the attorney averred that she was sixminutes late. At the hearing on the motion for new trial, the judge indicated that she was twentyminutes late.