Deshais v. State , 964 S.W.2d 166 ( 1998 )

OPINION

COHEN, Justice.

This is an appeal from a denial of appellant’s application for habeas corpus relief, asserting that the assessment of a controlled substance tax in addition to criminal prosecution for possession of a controlled substance violates the double jeopardy prohibitions of the Texas and U.S. Constitutions. We reverse and render judgment that habeas corpus relief be granted barring criminal prosecution.

Facts

Appellant was arrested on November 19, 1993 for possession of cocaine. On November 23,1993, the State Comptroller of Public Accounts issued notice of a controlled substance tax lien to appellant in the amount of $25,650,000 (including penalties) for failure to pay taxes on the cocaine. See Tex. Tax Code Ann. § 159 et seq. (Vernon 1992). Appellant received the notice. The lien was recorded in the Harris County Clerk’s Official Public Records on December 3,1993. A grand jury subsequently indicted appellant for aggravated possession of that cocaine. The Comptroller tried to collect the taxes for more than the next two years. The Comptroller issued directives freezing appellant’s assets held by others. Appellant’s bank account was frozen as well as $789 seized by the Houston Police Department on his arrest. The lien adversely affected appellant’s credit. In April 1996, appellant paid $100 toward the tax. The Comptroller accepted the payment and credited his account. On March 24, 1997, more than three years after the imposition of the tax lien, the Comptroller issued a document stating the lien was released, but nothing in the record indicates the release was ever filed or recorded with the Harris County Clerk’s Office. Appellant received a letter indicating the lien would be released and his $100 would be refunded, yet nothing in the record indicates the Comptroller ever delivered the release to him.

At the hearing, the State introduced a copy of the $100 refund check, dated April 23, 1997.¹ Appellant testified he had not yet received it. Though appellant’s credit report² indicated the tax lien still existed, a witness from the Comptroller’s office testified the release of the tax lien meant that as of that date, appellant no longer owed the State any taxes or penalties.

Analysis

Appellant asserts the assessment of the controlled substance tax and the criminal prosecution for possession of the same controlled substance violates the double jeopardy clause.³ We agree.

Assessment or imposition of a controlled substance tax constitutes punishment for double jeopardy purposes, and therefore, it precludes further prosecution. Stennett v. State, 941 S.W.2d 914, 916 (Tex.Crim.App.1996) (assessment of controlled substance tax is punishment within double jeopardy prohibition); DeLeon v. State, 951 S.W.2d 283, 286 (Tex.App.—Houston [14th Dist.] 1997, pet. filed) (one is punished for double jeopardy purposes when controlled substance tax is assessed); State v. Rocha, 944 S.W.2d 701, 705-06 (Tex.App.—Corpus Christi 1997, pet. filed) (assessment, rather than full or partial payment of the tax, is punishment for double jeopardy purposes); Ward v. State, 915 S.W.2d 941, 946 (Tex.App.—Houston [1st Dist.] 1996, pet. granted) (imposition or assessment of controlled substance tax is the operative event). We hold that this tax assessment bars prosecution for possession of this cocaine for the same reasons stated in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 783-84, 114 S.Ct. 1937, 1948, 128 L.Ed.2d 767 (1994) (holding tax imposed pursuant to Montana’s Dangerous Drug Tax Act, a tax similar to Texas’ Controlled Substance Tax, is punishment for double jeopardy purposes) and Stennett, 941 S.W.2d at 916-17 (despite differences between Montana and Texas controlled substance taxes, Texas tax implicates double jeopardy).

The State asserts that the fact the tax lien was removed and appellant’s payment was refunded cures any double jeopardy problem. Even if the lien had been released of record and appellant had received his refund, the result would be the same. Though none of the cases listed above discuss this scenario, it is clear the operative event, for double jeopardy purposes, is the assessment of the tax. See Kurth Ranch, 511 U.S. at 769-75, 114 S.Ct. at 1941-13; Stennett, 941 S.W.2d at 915; DeLeon, 951 S.W.2d at 286; Rocha, 944 S.W.2d at 705; Ward, 915 S.W.2d at 946. Releasing the lien and refunding the payment would not change the fact the tax was assessed.

We reverse the trial court’s judgment and render judgment that habeas corpus relief be granted. The indictment and the prosecution of appellant in cause no. 747,865 in the 230th District Court of Harris County are both dismissed.

1 . The hearing took place on April 17, 1997. A continuance was granted until April 30, 1997 so that the State could introduce evidence of the refund. There is nothing in the record indicating that the refund check was ever received, endorsed, or cashed by appellant.

2 . Appellant testified his wife ran a credit report two to three days before the hearing.

3 .As a general rule, the double jeopardy ban under the Texas Constitution provides no greater protection than the federal constitution. Stephens v. State, 806 S.W.2d 812, 815 (Tex.Crim.App.1990); but see Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996) (expanding double jeopardy protection under Texas Constitution when prosecutor should know conduct will result in a mistrial).