judgment was granted for the government the husband of the claimant calvin walker was prosecuted for defrauding the borough boma independent school district the case resulted in a hung jury two a new day's worth three point four million dollars a mercedes and two lots after the civil forfeiture complaint was filed the the walkers filed a claim was a community property especially the two annuities but that's no surprise because if you look at the forfeiture complaint is filed by the government specifically shows it that the nudies were funded from two from bank accounts in the name of the workers who were married so it was obvious from the first that the new unease were community property the case proceeded on and on a century the the heaven worker entered into a guilty plea with the government he pleaded guilty to a dot to the to the fraud charges but rather to a misdemeanor tax charge and agreed to forfeit his interest in the two annuities specifically says the defendant's hearing miss walker for the first time made an appearance in court she was not a not charged in the criminal case never made an appearance in the criminal case didn't even have standing to enter parents in the criminal case is when her count criminal counsel who was representing both of them withdrew because of the fact that there was a conflict because she was claiming that she did not agree to the forfeiture of the to the new  so i submit in this case that there are three provisions that really apply here one is texas family code provision three point one four and then the two asset forfeiture provisions that relevant  management community property and that was because two annuities were in the name of the husband calvin walker the three point one zero for which i think we both sat in our briefs both sides says that just like selling a car of one's spouse when the name of the property is in one spouse's name they can deal with that property sell it without the i'm sorry he he or she said well went yeah or she but it's in the singular not a right yes it's a grammatical point small mind it is it's the issue here is is whether he can deal with it not if it's in his name then he can deal with it yes yes yes you know that's the that's clearly the law in a taxi ask you a question which i've never known the answer to and that is let's assume you've got property one of the spouses names unless someone has noticed the person buying the property has notice that the other spouse is not can considering how you could change the name of the title to the property and put the other spouse on what's the proper this is literally i'm not giving you trouble i want to know his wants the property is in the husband's name that's it forever how does the wife come in and say well you're not the world's best manager and so i want this property in both our names so i get to have some say over that can you do that under texas law i think you can i mean to diminish sample my wife what is her name on the card and we changed that's on the card that's how you would look at the yeah i mean i think i might do it differently well i just i just want to know what the texas law is once the thing is in concrete i eat your names and the title how does the  now you're having a problem with this woman over here and i want my name on the title to well i think it's a problem i don't think there's a clear what i see is i think there's a risk to the to the spouse whose name is not on the t the that the other spouse could deal with the property and the protection is afforded is is really if is is the and i think there's really answers what i think the concern is the three point one four has this that the party should make further inquiry and i think that's important distinction here so you can if they have notice of what notice that the other spouse is not consenting to the transfer well so the spouse says i'm sorry i don't agree so i want i don't agree with this transfer so then what if if if that person if that spouse makes it known to the bar then i think the transactions at risk of the into the  inquiry or is the construction of constructive notice even construction of notice is essentially they should have no and i think that applies here when the when the counter claim an answer was filed by mr walk it's i know you are going into three point zero four you say that the government had notice of her quote joint management question just king is she was you know straight on about the law in a case where you know a spouse asserts this you gave an example you know what carter what it done so once it's triggered i mean there was actual notice but asked here we've got these court proceedings going on everything is in his name she had a lawyer cetera et cetera  so where are you saying or in which scenario i mean there's no affirmative at least that i read no affirmative sort of statement etc in the way of the example here you're saying because when she came into court she sitting out there at cetera et cetera that the government had constructive notice of her joint management when when he when and how are you saying that notice was triggered it was noticed by the claim an answer that was f or if they hadn't done that and they probably could have gone through in four but when she said that out there answering counterclaim means something in the buyer i think it's important because you have to look at three point one four in connection with the procedur counterclaim like this i'm just trying to get in i hear your argument i'm trying to see what is your best texas case that would inform us in a circumstance where there's not you know the affirmative raising the hand by the spouse saying yes but some constructive notice by the third party because the point of three point one four is protecting a third party's right yes sure so so what's your best case it says in the absence of but yet you say the kind of plane but i do want my part should put the government on notice in terms of the joint man and what you're saying you're on there or somewhere in there was a serious crime or respectfully disagree on one point ok there's no there's no evidence to show he's committed there there's been allegations i'm ok and he has and i stand corrected and when he when she put that u so they come back and he pleases so it's it's this whole scenario you know that that's kind of there and then we get to where here so i was there a little bit trouble of this constructive notice in the context of this whole saying i think they were and ran roughshod over her innocence she was an innocent spouse nobody's claim she's ever done anything they ran ran roughshod over her interests community property interests and just guessed or assume that she was going along with it because she had to say more when the conflict became apparent when she made her first appearance in court then mr de guerin withdrew and she should be entitled to go and litigate her claim and it's not just  sume a spouse who has made a valid claim and counterclaim for community property is not required to at least have a signature are something are they or something on the record in a case where she spouse there be should be some kind of something on the record or really what i'm saying is you shouldn't just affirm a case where they didn't have that because i think it makes the government l was for the united states well to hear there's walker's council's summation there that we ran roughshod over her she was represented by an attorney and not just any attorney a highly experienced attorney also his attorney right yes your honor that was her choice and but he was a highly experienced attorney when the claim was filed it on behalf of her as her attorney and also as mr walker's attorney in the civil forfeiture perceive the government dealt with her attorney i i  don't know how to be more clear and say that at any time she objected to the transfer of these annuities she had an attorney to represent her and say measures walker object her half if she had a half interest in these a new ities she objects to the transfer and that could have been addressed at that time at any point during the civil forfeiture proceedings it never  happened her claim was that hey this is community property where the government doesn't dispute that it's community property but it sold management community property and that's not something the government did this is something the walkers did well before the criminal indictment was brought where there was forfeiture allegations for these a new os if there isn't any notion in texas community for the spouse in this type of situation well this is exactly kind of the question that jet skiing as the walkers and sells put this property and mr walker's name not just don't want to kazan but two occasions because there are two separate in new indies purchased on two separate dates each time it was kind of the mr walker's name only he had the authority at any time as the owner of that he knew it he to put it in both spouses names but he never did she was listed merely as a beneficiary and so to answer judge king's earlier question what does a spouse do well in a case like this she could have written to the insurance company and said hey we object to i object to the transfer by mr walker of these annuities let me know in the case of a car title see my could do a u c c filing in case of  trust on a piece of property again some sort of notice filed in the land records or a title search might say hey there's a spouse out here that have jackass that's in the in our narrative commercial  dealing with this problem these problems actually being taken yes your government yes your honor why shouldn't that be a different situation well when the government actually if they would she would not be protected just because it's in his name no your honor she is protected we sent her notice she filed a claim she hard to lawyer the lawyer represented her what we did was deal with her through her lawyer at any time all they had to do was give us notice in fact so this is good because the lawyer also by the way is not judgment proof so there you go well that's for them to decide and but you know we had a case and those involved in the georgia are very blue dogs and he copyrighted blue dog but they were community property we i think we ended up holding even though he had the authority under the copyright law to deal with it and moved our house and license them need it still the the there was a residual interest of his wife former wife protected by the community property was losing out because of different state and different a but i just wondered if there is nothing like that in texas that would help a situation like this and dealing with land to do and credibly good title search but here the government dealt with measures walkers attorney she was represented by a lawyer and so it was incumbent on her to give us some notice and even to the court to get the court noticed during the civil forfeiture perceiving the say i have jack to this transfer doesn't you know i mean i think he will yes i mean he he doesn't take on the issue no actual notice you know that was followed in the name arguing that you know she did what you said you know she obviously didn't do what she could have done in terms of that sense that he's are going and be the constructive notice that  that in the counterclaim itself how bought her a lawyer that the nature of the conical should be the constructive notice in this instance so i think that what he's saying i'm not trying to encourage you correct me if i'm wrong so what's the government's take on it after her counter claims filed the government negotiate it with her attorney negotiate with her attorney to resolve the civil forfeiture and that's what the government debt the government rates are resolution with mr walker and measures walker through her attorney and after mr walker's sentencing the government then proceed it with its agreement and return to misery as walker over five hundred thousand dollars in the go shabelle checks a car and some real property that also been seized or had a list pendants put on at no point during this entire process does do they ever give any kind of notice that hey we don't really agree with this and the case they signed the portland case  d that case the spouse actually took some affirmative action by telling the bank hey i don't agree to sign a promissory note or a deed of trust and so the court there found  that not only was there notice that was probably not much but at a minimum there was certainly notice now in this case she's represented by a lawyer for well over a year and a half during this process and there are a that on the record and in open court again there were numerous orders entered by the district court here sank hey this civil forfeiture is taking so long let's ask you the question i ask opposing counsel and that is just as a matter of texas law once the property winds up the car title in the husband's name what can the wife do to say i don't agree that he should be any longer the joint manager of this property i want it i want it to be what do you i want to be a title owner right well what do you do under texas law never mind  senior and in a perfect world under texas law how does the like be heard and the only thing this council believes someone could do is what i suggested earlier you have to have some sort of affirmative filing such as a u c c filing maybe something in the land records and the reason why the family code is like that is not to protect the other spouse that's what the case law says is to protect third parties like the government in this case because they're dealing with titled property and they take whatever reasonable steps that can be taken to protect their interest of it they take this property cleared it clearly and cleanly and in this case the government did that it said mrs walker notice she hired a lawyer and we dealt with her lawyer and it was he who negotiated this  overall agreement and the agreement does benefit misery's walker the end result of these forfeited annuities is it pays her several tax liabilities which you can imagine are going to be enormous because the criminal restitution as then have a huge civil tax liability out there would be like double punishment so this agreement was designed to at least pay any civil tax liability that  would have come about as a result of having these all this income represented by the annuities it was never reported and that's why mr walker entered a plea for failure to pay taxes and so enormous civil tax liability out there for the monies represented by these annuities and so the government is allowing the in new of these to be used to pay off that civil tax liability whatever is remaining will then go to the forfeiture fine but but the in result is it was designed by her attorney he negotiated this and so this is not someone being run over rough shod and  you know without something being done behind your back she was represented by a cable i can very capable attorney who actually cut a very savvy deal he ever signed anything here that said i agree with all this no your honor she did not and therein for the future lies what you need to do ok yes your honor message from today better get the wife to sign yes your honor and that would have been better practice however we were dealing with her attorney and in this counsel's experience maybe it's different from mr roper's but this is exactly the type of situation we've probably done this hundreds of times and never had an issue like this but here in this case even the court found her claim that she didn't have notice that the district court's term was incredulous and given the number of hearings and pleadings done in a civil forfeiture case the government concurs with that finding by the court it's just incredulous she didn't have notice you know what it is present in most of the proceedings or get a lawyer only you know look i got a lawyer she wasn't there mr horton and i'm just curious was she present during the proceeding yes your honor the district court actually entered as part of its order that she was present at almost all of the hearings and so this was not done in a vacuum any conflict here was a probably a conflict of convenience let's take another run at the in new ities after we've already gotten the benefit of the bargain he got a great plea agreement she got property returned back to her a lot of cash a car and some land and again the government simply seeks to enforce its bargain and under the mccloy case we're entitled to rely on the fact that these a new ities were in her name and if that was all we did a if you said her name of his name and if that was all we had to rely on that alone under the statute the family code three point one zero four that would be enough for the government to rely on because where third party it was titled in his name were entitled to rely on the presumption that he had the authority to deal with the property and that's what the statute and that's what the case law behind  says is that it operates for the benefit of the third party not that innocent spouse but in this case the government did one further it noticed her she got an attorney we dealt with her attorney and you saying and her attorney but that was mr de guerre who is also his attorney shouldn't have an independent well that's that's i mean as far as the record shows but no he he filed a claim in the civil forfeiture on her of one for her to file one for him she was represented in a civil forfeiture by him and that's why the government dealt with him and that's what the court assumes to do and and rightfully so  and again i go back to the portland case where where again there was there was an innocent spouse and she actually put the bank on notice well here she had an attorney and she never put the government on those i think the government was in its brief we say hey if her own attorney didn't know she object how are we supposed to know and that's true that's what the statute is designed to protect the third party it's not for the protection of the other spouse and fortunately we don't write that statute that's the texas statute and that's kind of what we have to deal with as texas law with respect to be the case that he got the car  forfeiture authority under the tax code under title twenty six for us to do a criminal forfeiture in the act which you speak to those the money the cash it's over that she got did she sign documents in connection with receipt of of she was quite aware that she was receiving property back that she had filed a claim on and got him back and so the government believes it dealt extremely fairly with the walkers including  total three point four million minus two hundred thousand dollars to be returned to to the walkers ok he got i thought he got i thought he'd the husband got some money back right two hundred mercedes and the government released a list pendants on a piece of property some lakefront property in port  fact there was never any notice provided to the government that that she objected to it and she was represented by counsel and for over a year and a half of this was pending there was never in the affirmative no yes that's the second fact nothing else  i think he suggested that was a benefit given to mrs walker he he mr rawls asked her to go pick up the checks and this this notion that there's this huge amount of tax the viability we don't know what that is that's not in the record that's purely speculative there is some taxes so we don't know what that is and in whatever they're not anymore right well they both have been released this case mrs walker lurking at the back waiting sitting on our hands that's not case there is one hearing and it was when mr de guerin made that comment that mr rall sides that was the very day before she he has to withdraw because she wants to make a client so when she came into court taking advantage of the protections that ninety three in rule g to come into court in litigate this issue that was too and that's the problem when you're dealing with joint representation of a husband you're right it is thought with kara when you do that and frankly when she came into court and at that point  figured out what was going on he as he says in his pleading he withdrew he figured out there was a conflict with drew and at that point he and the government knew that she'd made a claim in the proceeding what else could she have done i guess she could have stepped up in the criminal case and screening there or minister high sign or something but she wanted him apart and she didn't have standing in the criminal case she's a completely innocent spouse so the what might i think three point one four i disagree with what's been said that that doesn't not provide protection to the us to spouses and have community property that that the title is not in their name because they didn't set up this enhanced standard here on  to deal not only with actual notice but construction notice they have that higher standard to protect community property interests and you've got to read that in time to meet with these two provisions of the asset forfeiture statute and you've got to remember the government has the burden of proof and i cite this case from the eleventh circuit in it says the it's not just the procedural rule it should be heavier for the government because forfeitures are not favored strict compliance with the letter of it one point seven million dollars and they never took one action and i disagree miss rolls every kind of time and i had one in plano in the same district where you want to forfeit to settle a case you had a signature line in administrative agreement to make sure the spouse signs off to make sure an innocent spouse is interests are protected that's the way the department of justice suggests i being done that's the way i've always dealt with it and he just don't assume it's has been done they saddled up the civil tax liabilities here well that's an issue and that came up in this hearing that question is should summary judgment have been granted all the court should do is reverse the decision forfeiting her interest in remand for trial on the merits to see if the government can prove that it's proceeds and fraud that's what should happen in the tax case involving mr worker that in the criminal case is been dealt with all right mr roker thank you thank you for shakeout from both sides in this case