OPINION
Appellee, the State of Texas, brought a civil forfeiture action against approximately $20,120 seized from Ledley Judson Arnold, III, when he was arrested on a narcotics offense. After a bench trial, the court ordered the money forfeited. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 25, 1997, Arnold was arrested for a narcotics offense, and a Houston police officer seized approximately $20,120 in U.S. currency. On June 20, 1997, the State filed its original notice of seizure and intended forfeiture in Harris County District Court. The district court issued the citation on June 23, 1997, and a deputy constable served Arnold on July 1, 1997.
Arnold answered, in part pleading limitations. In his first amended motion for summary judgment, he again raised the defense of the statute of limitations. Arnold pointed to the State's judicial admission that the seizure occurred May 25, 1997, and attached a citation showing return of service on July 1, 1997, 37 days after the seizure. 1 Arnold alleged he was entitled to judgment as a matter of law because the State did not use due diligence in serving Arnold before the 30-day statutory deadline expired.
To its response, the State attached the affidavit of Patrick L. Smith, an employee with the district attorney's office, who had experience checking on the issuance of citations during the time Arnold's citation was being processed by the district court. Smith stated it was doubtful the citation in the present case would have been ready for pick-up on June 23, 1997, the date it was issued. Smith explained that, after the court issued a citation, it was sent to a "put together" clerk, who readied it for pick-up. During the time period at issue, Smith would check on the issuance of citations once a day and sometimes once every few days. When a citation was ready, he would pick it up. If there was time during the day or early the next working day, Smith would hand deliver the citation to the constable's office for service. At the time, the district court clerk's office was having problems with a newly installed system for processing paperwork. According to Smith, by using "attorney pick-up" and taking the citation to the constable's office, the State avoided much of the backlog that was occurring at the district court clerk's office at the time. Arnold did not object to Smith's affidavit.
The trial court denied Arnold's motion for summary judgment, thereby holding Arnold had not established lack of diligence as a matter of law and that a factual issue existed on the question of limitations. 2 On September 15, 1998, the case was called to trial. When Arnold did not appear, the trial court granted a default judgment in favor of the State and found the currency was contraband and was to be forfeited. Arnold did not file a motion for new trial.
Arnold filed his notice of appeal on October 26, 1998, and requested a court reporter's record to include, among other items, "testimony in the Final Default Judgment hearing." 3 On the same date, Arnold filed a motion for extension of time to file his notice of appeal.
On January 13, 1999, this Court granted Arnold's motion for extension of time to file his notice of appeal. On February 9, 1999, the clerk of this Court sent the reporter a notice that the record had not been timely filed and requested the reporter to file the record within 30 days of the notice. Arnold, however, filed his brief on March 5, 1999, and the appellate clerk did not refer the matter of the late record to this Court.
TIMELINESS OF NOTICE OF APPEAL
The State argues that Arnold did not file a timely notice of appeal and, therefore, this Court should dismiss the case. Arnold filed his notice of appeal 41 days after the trial court signed the judgment. A party must file its notice of appeal within 30 days after the judgment is signed unless the party takes certain postjudgment actions, not relevant here. See Tex. R. App. P. 26.1. Notwithstanding this provision, an appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party files the notice of appeal and files a complying motion for extension of time. Tex. R. App. P. 26.3. 4 Arnold filed a complying motion, which this Court granted.
We overrule the State's issue.
STATUTE OF LIMITATIONS
In issue one, Arnold contends the State's cause of action is barred by the statute of limitations. Both Arnold and the State direct their arguments at the trial court's denial of the motion for summary judgment.
When the trial court denies a motion for summary judgment and tries the case on its merits, the order denying the motion for summary judgment is not reviewable on appeal. Harris County v. Dillard, 841 S.W.2d 552, 554 (Tex. App.-Houston [1st Dist.] 1992), rev'd on other grounds, 883 S.W.2d 166 (Tex. 1994); see Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966). For Arnold to preserve the limitations issue for appeal purposes, he had to present the issue at trial. Johns v. Ram Forwarding, Inc., No. 01-98-00798-CV, slip op. at 8 (Tex. App.-Houston [1st Dist.], Oct. 5, 2000, no pet. h.). Because Arnold did not renew the limitations issue at trial, there is nothing before this Court to review.
We overrule Arnold's issue one.
SUBJECT MATTER JURISDICTION
Arnold's issue two rests on his conclusion that the limitations period had expired. From that conclusion, Arnold reasons that the trial court did not have subject matter jurisdiction. In support, he cites two cases, Central Power & Light Co. v. Caballero, 872 S.W.2d 6 (Tex. App.-San Antonio 1994, writ denied), and Lopez v. State, 797 S.W.2d 272 (Tex. App.-Corpus Christi 1990, writ denied). Central Power & Light involved the former Texas Commission on Human Rights Act, which contained a section providing, "In no event may any action be brought pursuant to this article more than one year after the date of the complaint to which the action relates." 872 S.W.2d at 7 (emphasis deleted). The San Antonio Court of Appeals held that, for the trial court to have acquired "subject matter jurisdiction," it was mandatory that the plaintiff file his lawsuit no later than one year after he filed his charge of discrimination with the commission. Id. The statute at issue in the present case contains no similar language. 5
In Lopez, the Corpus Christi Court of Appeals reasoned that a hearing that was not set within the statutorily mandated period was illegally set and held. 797 S.W.2d at 273. 6 The court did not review the evidence adduced at that hearing. Id. at 274. The Lopez court of appeals did not address subject matter jurisdiction.
Generally, the statute of limitations is an affirmative defense that must be pleaded; it is not a jurisdictional bar. Chimblo v. Commissioner, 177 F.3d 119, 125 (2d Cir. 1999), cert. denied, 120 S. Ct. 1159 (2000); see University of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.) (stating statute of limitations constitutes affirmative defense and is not basis for sustaining plea to jurisdiction).
Arnold has presented this Court with no authority that would take chapter 59 forfeiture actions outside this general rule. We have found none. Even if the State had not timely served Arnold, the trial court would not have lost subject matter jurisdiction.
We overrule Arnold's issue two.
We affirm the judgment.
Do not publish. Tex. R. App. P. 47.
1. See Tex. Code Crim. P. Ann. art. 59.04(a) (Vernon Supp. 2000) (providing that State's attorney "shall commence proceedings . . . not later than the 30th day after the date of the seizure").
2. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985) (stating movant has burden to show absence of genuine issue of material fact and entitlement to summary judgment as matter of law).
3. See Tex. R. App. P. 37.3(a)(1). The appellate clerk sent a notice requesting the reporter to file the record within 30 days of the date of the notice. See id. Arnold, however, filed his brief within the 30-day period, electing to address his argument only to the denial of the motion for summary judgment. On appeal he does not complain about the lack of a reporter's record of the trial/forfeiture hearing.
4. Texas Rule of Appellate Procedure 26.3 provides: The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).
5. We take no position on whether the San Antonio Court of Appeals was correct in concluding that failure to bring suit within the limitations period caused the court to lose subject matter jurisdiction in the specific context of an action under the Human Rights Act in question.
6. This reasoning was disavowed in State v. $435,000, 842 S.W.2d 642, 643-44 (Tex. 1992).
7. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.