# FILED
December 4, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

FREDDIE L

EE JONES, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 93-3580-I VS. ) ) Appeal N o. ) 01-A-01- 9505-CH- 00187 MICHAEL C. GREENE, ) COMMISSIONER, TENNESSEE ) DEPARTMENT OF SAFETY, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For the Plaintiff/

Appellant : For the Defendant/Appellee : E.E. Edwar

ds, III Charles W . Burson James A. Sim

mons Attor ney Gen eral and Reporte

r Nashville, Tennessee Rebecca Lyford Counsel to th e State Nashville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Mr. Brown h ad been arrest ed prev ious ly in Octo ber 19 88 for poss essin g co caine for

resale. He pled guilty

to a lesser possession charge in March 1990 at the sa me time that he pled guilty to the poss ession ch argesresulting from this incident. -2- 

## O P I N I O N

This appeal involves over $45,000 seized during the search of a house in Memp his for illegal drugs. After the Com missioner o f Safet

y ordered t

he forfeiture of the m

oney, the person

claim ing the funds f

iled a petition for review in the Chancery Court for Davidson County a sserting that the forfeiture statutes deprived him of his constitutional right to a jury trial and vi olated the Equal P rote ction and Due Process Clauses of the United States and Tennessee Constitution s. The tria

l court uphe ld the forfeiture statutes and the forfeiture, and this appea l foll owed. We have d etermin ed th at Tenn essee ’s forfeiture statutes are constitutional and that th e reco rd contains substantial and material evidence supporting the comm

issioner’ s fo rfeiture

order. Accordi ngly, we aff irm t he judgment.

I.
On May 26, 1989 , the She lby Cou nty She riff’ s Depart

ment obtained a
warran tto search the house at 2491 Haischi Street in Memphis based on reliabl e information that coca

ine was being stored a

nd so l d there. When the deputies executed the war

rant on M ay 27, 1989, the y encountered Halbert Brown 1 who confirmed

thathe lived in t

he house. The sear

ch yie lded four

handguns, an M-1 carbine, 0.6 grams of cocai ne, 1.5 grams of marijuana, a nd drug paraphernalia. The deputi es also discovere d $541 in Mr. Brown’ s pants pocket and $5,380 in a padlocked c loset in one bedroom. In addition, they found a paper grocery sac k hidden behind a built-in enter tainm ent cente r con tainin g over $40,065, divided into two thou sand dollar

rolls sepa

rately wrapped in plastic sandwich b ags.
Mr. Brown was arrested and questioned at the s cene. He denie d that the seized money

was his and insiste d that he did not know who the money belonged to. After Mr. Brown ref

used to sign a notice of seizure form, the deputies mailed him a copy of the f

orm several day s later by certified mail. The form stated that2 Mr. Jones was never charged with a criminal offense based on the illegal drugs found during the search of the 2491 Haischi Stree t house. -3- the money

and other property would be forfeited unless a written claim was filed with the Commis sio ner of Sa fety w ith in f ift een days after the date of the notice.

No one filed a

ti mely claim for the pr

operty . On Au gust 9, 1989, the
comm issioner ordered the forf

eiture of the $45,986andnotified Mr. Brow n of his actionby ce

rtifie d mail. On August 16, 1989, a lawyer re presenting both Mr. Brown and Freddie Lee Jones requested the comm issioner to reconsider his order. Mr. Jones asserted that he too resided at 2491 Haischi Street, that all the money foundin the house , except the $541 in Mr. Br

own’s po cket, be longed to him , and thathe had not r

eceived pr

oper notice

of the for

feitu re procee ding. 2 The
comm issioner denied the

petition fo r

reconsideration, and the ChanceryCourt for Davidson County affirm

ed the comm

issioner’s decision. This court, however,
reve rsed the denial

of Mr. J ones’s c laim and remanded the c ase to the
comm issioner for

further pro ceedings

. Brown v. Tennessee Dep’t of Safety, App. No. 01A01-9102- CH-00043, slip op. at 11 (Tenn. Ct. App. April 1, 1 992) (No Tenn. R. App. P. 11 application filed).
The comm

issioner a ssigned the c ase to an a dminis trative l aw judge

after th e rema nd. The ALJ denied Mr. Jones’s m otion to transfer the case to circuit court for a jury trial and conducted a hearing on Mr. Jones’s petition fo r the ret urn of the $45,445 on Octobe

r 22 and 23, 19 92. On June 10, 1993, the ALJ filed an initial orde r conc luding that th e $40,065 f ound in the pa

per bag hidden behind the entertai nment

center s hould be ret

urned to Mr . Jones.

All parties a

ppealed the

ALJ’ s initial de cision to the comm is sioner. O n October 4, 1994, t

he com missio ner file d an order

denyin g M r. Bro wn’s recusal motion and declining to address the constitutionality of the forfeiture s tatutes. The
comm issioner also concluded that Mr. Jones had failed to prove that he resided at 2491 Haischi Street when the money was seized and that Mr. Jones had failed to establish an interest in the seized money. Accordingly, the com missioner ordered the forfeit ure of the en tire $45,9 86 to the seizing ag ency.3 Act of May 21, 1937, ch. 255, 1937 Tenn. Pub. Acts 1028 (codified at Tenn. Code Ann. §§ 52-1301 through -1323 (repealed 1971))

. The legislation tracked the Uniform Narcotic Dr ug Act drafted by

the National Conference of Commissioners on Uniform State Laws in 1932. See Uniform Narcotic Drug Act, 9B U. L.A. 11 (amended 1958).

4 The original statute defined “narcotic drugs” to include cocoa leaves, opium, and every other substance neither chemically nor physically

distinguishable from them. Act of May 21, 1937, ch. 255, § 1, 1937 Tenn. Pub. Acts 1028, 1030. Later amendments added other substances to the definition.

5 Act of Feb. 23, 1955, c

h. 83, 1955 Tenn. Pub. Acts 258 ( codifie d origin all y at Tenn
. Code Ann. §§ 52-1401 through -1407; parts later transfer red and redesigna

t ed as Tenn. Code Ann. §§ 53-11-201 through -204).
-4- Mr. Jones file d a petitio n for r eview in t he Chance

ry Cou rt for D avidson County allegin g that the forfeiture statute was unconstitutional in several particulars and that the commissioner’ s decision was not supported by substantial evidence. The tria

l court det

ermi ned that the

for feitu re statute s were n ot constitution a lly suspect and that the c omm

issioner’ s decision w as supporte d by substantial

evidence . This a

ppeal foll owed.

II. E VOLUTION OF THE D RUG F ORFEITURE S TATUTES

T ennes see’s drug forf

eiture sta tutes have changed subs tantially ove r th e past sixty y ears. T

he first c ivil forf

eiture pr ocedure w as enacte d in 1937 whe n the General Assembly passed the Uniform Narcotic L aw. 3 T he law r equired the forfeiture and disposal

of “[ a]ll na

rcotic dr ugs, 4 the lawf

ul possession of which i s not establishe d or the tit

le to whic h cannot be

ascertained .” See Tenn. C ode Ann. § 52-1315. It also pr

ovided for a judici al forfeiture proc eeding cond ucted by “the court or magistrate having jurisdiction.” See Tenn. Code Ann . § 52-131 5(a). Eighteen year s later, the Gene ral Assembly

enacted a

ddi tion al legisla

tion regardin g the seizure and confiscation of contrab and drugs. 5 The “ contraban d drugs” covered b y this A ct include d mar ijuana a nd su bstanc es define d as “ narcotic drugs” in the Uniform Narcotic D ru g Law. See Tenn. C ode Ann. § 52-1401 (repealed1971). The new statutes no t only a uthorized t

he forfe iture of c ontraband drugs but, for the first time, authorize d the forf eiture of convey ances used

to transpor t contraba nd drugs

. See Tenn. Code Ann. § 52-1403 (repealed 1971).6 This administrative proceedingappears to havebeen patterned after the administrative

forfeitureproceedings used for illega l tobacco sales, see Act of Mar. 5, 1937, ch. 133, § 7, 1937 Tenn. Pub. Acts 587, 592-94, and illegal manufacture and sale of alcoholic beverages. See Act of Mar. 5, 1939, ch. 49, § 19, 1939 Tenn. Pub. Acts 199, 231.

7 In the absence of a timely claim, the seized property wa s summarily forfeited. See Tenn. Code Ann. § 52-1406 (codified at Tenn. Code Ann. § 53-11-203 (1991)).

8 Act of May 3, 1971, c

h. 163, 1971 Tenn. Pub. Acts 366. The purpose of this Act was “to provide for

a comprehensive sy stem of drug and drug abuse c ontrol for Tennessee.” I t was patterned after the Unif

orm Controlled Substances Act drafted by the National Conference of Commissioners on Unifor m State Laws in

1970. See Uniform Controlled S ubstance s Act, 9 [Pt. II] U.L.A. 1 (1987).

9 Act of May 3, 1971 , ch. 163, § 2(d ), 1971 Tenn. Pub. Acts 366, 367. The term “controlledsubstanc e” was la ter red efined in Act of May 24, 1989, c h. 591, § 1, 1989 Tenn. Pub. Acts 1169, 1254 (presently codified at Tenn. Code Ann. § 39-17-402(4) (Supp. 1996)).

10 Act of May 3, 1971, ch. 163, §§ 36(a)(2), 36(a)(3), 36(a )(5), 1971 Tenn. Pub. Acts 366, 4 02-03. Thi s pr ovi si on w as firs t co di fie d at Ten n. C ode Ann . § 5 2-1 433 . In 1983, it wa s transferred

and redesignated as Tenn. Code Ann. § 53- 11- 409, and i n 1990 it wa s again (continued...) -5- In another si gnificant departur e from the Uniform N arcotic Drug Law , the 1 955 statute pr

ovided for an adm

inistrativ e, rathe

r than a j udicial, forfeit

ur e proceedin g. 6 See Tenn. C ode Ann. § 52-1404 (c odified as ame nded at Tenn. Code Ann. § 53-11-2 01 (Supp. 1 996)). Persons claiming an interest in property seize d
as contraba

nd were a uthorized t

o file a written cl aim w ith the Com missio ner of Safe ty, andthe com

missio ner was empow ered to co nduct a hea rin g o n t he c lai m. 7 See Tenn. C ode Ann. § 52-1404. Pe rson s dis sati sfied with t he commiss ione r’s disposition

of the cla

im w ere perm

itted to o btain j udicial re view by filing a
comm on-law writ of c ertiorar

i in the Cir

cuit Court

for Dav ids on Co unty. See Tenn. Co de Ann. § 52-1405 (codified as Tenn. Code Ann. § 53-11-202(a)-(e)). The review was lim

ited to the recor

d of the pro ceedings before the comm issioner, and the partie s were s pecifica lly not permitted to introduce additional evidence in the circu it court pr

oceeding.

In 1971 the General As sembl y repl aced m ost of the Uniform Narcoti c Drug Law with the “Tenness ee Drug Cont rol Act of 19 71.” 8 This Act again increased the number

of drugs co nsidered to be “control led subs tances.” 9 It also expanded the types of

property subject to forfe iture to inc lude raw mate rials and e quipment used to produce illegal controlled substances, property used to contain illegal controlled substance or raw materials, and books, rec ords, and other m aterials used to violat e the law. 10 While retaining the administrative forfeiture procedure10 (...continued)

transferred and redesignated as Tenn. Code Ann. § 53-11-451.

11 Act of May 3, 1971, ch. 163, § 36(i), 1971 Tenn. Pub. Acts 366, 405 (codified at Tenn. Code Ann. § 53-11-451(I) (Supp. 1996))

.

12 Act of May 3, 197 1, ch. 1 63, § 34(b), 1971 Tenn. Pub. Acts 366, 400 (codified as amended at Tenn. Code Ann. § 53-11-407 (Supp. 1996)).

13 Act of Mar. 27, 1972, ch. 597, § 12 , 1972 Ten n. Pub. Acts 446, 448-49 (codified as amended at Tenn. Code Ann. § 53-11-451(a)(6)(Supp. 1996)).

14 Act of May 11, 1983, c

h. 412, § 4, 1983 Tenn. Pub. Acts 794, 796 (codified at Tenn. Code Ann. § 53-11-451(a)(6)).

15 Act of May 23, 1984, ch. 1005, § 4, 1984 Tenn. Pub. Acts 1190, 1192 (codified at Tenn. Code Ann. § 53-11-451(a)(7) (Supp. 1996)).

16 Act of Apr. 3, 1986, ch. 783, § 1, 198 6 Tenn. Pub. Acts 759, 759 (codified at Tenn. Code Ann. § 53-11-451(a)(4)); Act of Apr. 20, 1994, ch. 925, § 2, 1994 Tenn. P ub . Acts 848, 856 (codified

at Tenn. Code Ann. § 53-11-451(a)(4)). The preamble of the 1986 Act declared that the federal civil drug forfe iture statute, 21 U.S.C. § 881 (1988 & Supp. 1992), “serves the purpose set out herein and mirrors the intent of the legislature .”

17 The Act’s caption described it as “[an Act] to subject to forfeiture all rea l property used to facilitate a violation of Tennessee Code Annotated, Section 39-6-401, et seq. . . .” See Act of Apr. 3, 1986, ch. 783, 1986 Tenn. Pub. Acts 759. -6- established in 1955, 11 the Act em powered the circu it and crim inal court s to enjoi n violations of the co ntrol led substanc e laws a nd gave def

endants in t

hese civil proceedin gs a statuto ry ri ght to a ju ry tr ial. 12 During the interv ening twe nty-f ive ye ars, the

Genera l A sse mbly has expanded the scope o f the civil drug forf eiture la ws on five

occasions. In 1972 it added “m oney or any other thing of value” received in an illega

l drug tran saction to the list of property subject to forfeiture. 13 In 1983, it authorized the forfeiture of “all proceeds tr aceable ” to an ille gal drug tr ansaction, 14 and one y ear late r it authorized the forfeit ure of “drug parap hernalia.” 15 In 1986 , and aga in in 1994, itmodif ied the sco pe of

the provisi on relatin g to the for feiture of convey ances. 16

The caption and preamble of the 1986 Act am ending the drug forfeiture procedures reveal that the G eneral A ssemb ly cons idered but rejec ted a provi sion authorizin g the forf

eiture of real pro pe rty use d to facili tate an il legal drug transact ion. 17 The General Assem bly revisited the issue four years lat er and determined

thatboth real property

used to fac ilitate

an illegal drug trans action and interests in real property

acquired with the pr

oceeds of an illegal drug transact

ion18 Act of Mar. 22, 1990, ch. 774, 1990 Tenn. Pub. Acts 260 (codified at Tenn. Code Ann. § 53-11-452 (Supp. 1996)).

19 Tenn. Code Ann. § 53-11-452(a)(2).

20 Tenn. Code Ann. § 53-11-452(d)(1)(A).

21 Tenn. Code Ann. § 53-11-452(c)(4).

22 Act of Apr. 20, 1994, ch. 925, 1994 Tenn. Pub. Acts 848 (codified at Tenn. Code Ann. §§ 40-33-201 through -214 (Supp. 1996)).

23 The Act provides that a

ll existing forfeit ure proc edures a

pplicabl e to proper

ty covered by the Act are repealed to the extent that they are inconsistent with the new uniform procedure. See Act of Apr. 20, 1994, ch. 925, § 3, 1994 Tenn. Pub. Acts 848, 856. -7- shouldbe sub

jec t to forfeiture. 18 Forfeitures of interests in real property differ from all other civil drug forfeitures in three mate rial res pects. First, the forfeiture cannot occur unti l the holder of an interest in the real property is convicted of a specified drug-related offense. 19 Second, the forf eiture pr ocedure i s judi cial rather than administrative

and is com

menc ed by th e filing of

a “c ivil forfeit

ure suit” b y adistrict attorney general or the State Attorney General and Reporter. 20 Third, the defendant s in these c ivil proce edings have a statutor y right to a jur y tria l. 21

The final ste

p in the evolution of Tennessee’ s civil drugforfeit u re procedur es occu rred in 1994 when the General Assembly established a uniform proced ure gov ern ing the forf eit ure of p erso nal pro per ty. 22 This new procedur e does not apply

to a ll types of forfeitures, b ut it does spe cifically apply to forfeitures of persona

l property authorize d by T enn. Code Ann. § 53-11-45 1. See Tenn. Code Ann. § 40-33-201 (Supp. 1996) (amen dmen ts effec tive Januar y 1, 1997). It will alsosupplant the

procedur e in Tenn. Code Ann. § 53-11-201. 23

Like the former procedure, the new uniform pro cedu re follows an administrative

model. Claimants seeki ng to recover personal p roperty

subject to forfeiture under Te nn. Code A nn. § 53-11-451 m

ust stillfile a ti mely

claim with the Comm

issioner of

Safety . Tenn. Code Ann. § 40-33- 206 (Supp. 1996). Claim ants are entitled to a contested case hearing conducted in accordance with the Unif orm A dminis trative P

rocedure s Act. T enn. Code Ann. § 40- 33-209(d) (Supp. 1996). Pe

rsons dissat

isfied wi th a fina

l a gency order m ay seek judicial review by fil in g a written “notice of review” in either the cir cuit or chancery courts of Davids on County . Tenn. Code Ann. § 40-33-213 ( Supp. 1996) . The24 The scope and procedure for judicia l review of administrative decisions in drug forfeiturecases has been governed by the Uniform Administrative Procedures Act s ince 1986 when the Gene

ral Asse mbly did a way

with the c ommon-law

writ of c ertiora

ri proceeding in Tenn. Code Ann. § 53-11-202 that had been used since 1955. Act of Apr. 3, 1986, ch. 738, § 3, 1986 Tenn. Pub. Acts 604, 606. -8- standard of review in these procee din gs tracks T enn. Code Ann. § 4- 5-322(h) (Supp. 1996), exc ept

that the reviewing court

must w eigh the ev idence usin g the preponderance of the evid ence stand ard. Tenn. Code Ann. § 40-33 -213(a), - 213(b) (Supp. 19 96). Pa rties see king judicial rev iew a re no t en tit led to a jury, Tenn. Code Ann. § 4-5-322(g) (S upp. 1996), and the revie w is lim

ited to the administrative

record e xcept to the

extent tha

t Tenn. Code Ann. § 4- 5-322(e) and -322(g) permit the introduction of additional evidence. During all relevant times in this case , themoney seized at the 2491 Ha

ischi Street h o use was su

bject toforfeit

ure under Tenn. C ode Ann. § 53-11- 451(a)(6)(A) or its predecessors. Persons claim ing an interest in the money had
astatutory

right to fi le a clai m wi th the Depa rtment of Saf

ety a nd to partic ipate in
an administrative proceeding during which the state had the burden of proving by
apreponderance of the e vid ence that the money sh ould be for feited. Persons dissatisfied with the c omm issioner’ s decision ha

d the right to seekjudicial review in accorda

nce with t he Unifor m Adm inistrativ e Procedures Act. 24 This rev iew is based on the adm

inistrativ e record

and is conduc ted by t

he trial court s itting with out a jur y.
III.

C ONSTITUTIONAL R IGHT TO A J URY T RIAL
The right to a jury trialguarante ed by T enn. Const . art. I, § 6 is a mong the most valuable p ersonal r

ights co ntained in T ennessee’ s Declaration of Ri ghts. Harbison v. Brig g s Bros. Pain t Mfg. Co., 209 Tenn. 534, 540, 3 54 S.W .2d 464, 467 (1962); Bank v. Cooper, 10 Tenn. (2 Yer. ) 599, 604 ( 1831). Every v ersionof
our constitut ion has used the sa

me la nguage to de fine this r

ight, and t

hus its contours have rem

ained uncha

nged for th e past 120 years. State ex rel. Timothy
v. Howse, 134 Tenn. 67, 80-81, 183 S.W. 510, 514 (19 15). Tenn. Con st. art. I, § 6 gua rantees the right to a jury trial as it existed at com mon law when

th e25 State v. Hartley, 790 S.W.2d 27 6, 277-78 (Tenn. 1 990); State ex rel. Balsi nger v. To wn of Madisonville, 222 Tenn. 272, 280, 435 S.W.2d 803, 806 (1968).

26 State v. Moore, 206 Tenn. 96, 98, 332 S.W.2d 176, 177 (1960).

27 Trigally v . Mayor of

Memphis, 46 Tenn. (6 Cold.) 382, 386-87 (1869).

28 Kirkpatrick

v. State, 19 Tenn. (M eigs) 1 24, 126 (1 838); Goddard v. State, 10 Tenn. at 99-100.
29 State ex rel. Timothy v. Howse, 134 Tenn. at 82, 183 S.W. at 514-15.

30 Davis v. State, 92 Tenn. 634, 642, 23 S.W. 59, 62 (1893).

31 Shields v. McMahan, 112 Tenn. 1, 5, 81 S.W. 597, 597 (1903), rev’d on other grounds , Brown v. H

ows , 163 Tenn. 138, 155-56, 40 S.W.2d 1017, 1022 (1931). -9- Tennessee Constit ution of 1796 was ad opted. Town of Sm yrna v. Ridley, 730 S.W. 2d 318, 321 (T enn. 1987) ; Willard v. State, 174 Tenn. 642, 645, 130 S. W.2d 99, 100 (193 9); Marler v. Wear, 117 Tenn. 244, 246, 96 S.W. 447, 448 (1906).

Tenn. Const. art. I, § 6 does not gua rantee a jury trial in e very s ort of

case. State ex rel. Timothy v. Howse, 134 Tenn. at 81, 183 S .W. at 5 14. I t does not applyto cases that could be tried without a ju ry prior to 179 6, Newport H ous. Auth. v. Ball

ard, 839 S.W .2d 86, 88 ( Tenn. 199 2); Memphis & Shelby Coun ty Bar Ass’n, Inc. v. Vick, 40 Tenn. App. 206, 216-17, 290 S.W. 2d 871, 876 ( 1955), and there were many

types of cases that could be tried without a jury at that time. Goddard v. State, 10 Tenn. (2 Yer.) 96, 99-100 (1825). The com mon law did not require ajury

trial in e quitable

proceedi ngs, 25 proceedi ngs in whic h there w ere no disputed factual issues, 2 6 proceedi ngs for the punishm ent of small offe nses, 27 or paternity proceedi ngs. 28

The comm

on law als o did not requir e a trial by jury in “summ

ary proceedin gs.” A summary proceeding is one that is more speedy and informal than a customary

legal proc eeding. State ex re l. Mynat t v. King, 137 Tenn. 17 , 29- 30, 191 S. W. 352, 355 (1916); State ex rel. Timothy v. Howse, 134 Tenn. at 82, 183 S .W. at 514. A summary proceeding has been recognized as perm issible in
cases involving the

ouste r of public of

ficials f or mi sconduct, 29 disbarm ent of lawy ers, 30 and elect

ion contests

. 31 It has also been approved in confisca ti on32 Casone v. State, 176 Tenn. 279, 284, 140 S.W.2d 1081, 1083 (194 0); Caneperi v. State,

169 Tenn. 472, 475-76, 89 S.W.2d 164, 165 (1936).

33 State v. McCrary, 205 Tenn. 306, 311, 326 S.W.2d 473, 475 (1959).

34 The federalcourts have reached the same c onclusion with regard to the guarantee of a jury tri al i n U. S. Co nst . am end . VII. NLRB v. Jones &Laughlin Steel Corp., 301 U.S. 1, 48-49, 57 S. Ct. 615, 629 (1937); United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 458 (7th Cir. 1980).

35 In addition to Tennessee, Hawaii, New Hampshire, Rhode I sland, and Washingt o n have establishedan administrative process for disposing of some types of drug forfeiture cases. See Haw. Rev. Stat. § 712A-10 (Supp. 1992) (administrative forfeiture hearings befor e the attorney general concerning seized property whose value does not exceed $100,000); N.H . R ev. Stat. Ann. § 318-B:17-d (1995) (admi nist rativ e forfe iture hearin gs before the Department of Justice withregar

d to seized pr

operty whose value does not exceed $75,000); R.I. Gen. L aws § 21-28- 5.04.2(h) (1989) (administrative forfeiture hearings before the attorney general concerning seized propert y whose value doe s not exceed $20,000) ; Wash. Rev. Code Ann. § 69.50.50 5(e) (We st Supp. 1996) (administrative hearings conducted bef ore the chief law enforcement office r of the seizing agency

). -10- procee dings involving vehicles used to transport contraband alcoholic beverages 3 2 and gam e anim als taken o ut of seaso n. 33

In addition to t

he pr oceedi ngs that did no t require a trial by jury prior to 1796, Tenn. C onst. art. I, § 6 does not a pply to claims or proceedings established after the a do ption of the

Tennesse e Constitut

ion of 1796. Accordi ngly, the General Assem

bly is no w free

to fashion n ew clai ms and rem edies tha t do not includethe use of a j ury. Plasti-Line, Inc. v. Tennessee Hu man Rights Comm’n., 746 S.W. 2d 691, 694 ( Tenn. 1988); State ex re l. Cates v. St andard Oil Co., 120 Tenn. 86, 137, 110 S.W. 565, 577 (1908). 34

IV. J URY T RIALS IN D RUG F ORFEITURE C ASES Every state has enacted s tatutes pe rmit ting the conf

iscation and forfeiture of property used inor derive d from

the sale of illegal drugs. Most of these statutes follow a judicial model that requires the seizing agency to commence forfeiture proceedin gs in court. Tennessee is one of five states that follow an administrative model in which f

orfeitur e cases a re proce ssed by

an adm inistrativ e agency

with the righ t of judic ial revie w of the a gency ’s deci sion. 35 The choice betweenth e judicial or administrati ve model influ ences the cl aimant’s right to a jury trial.36 Forfeiturestatutes specifically dispensing with a j ury incl ude: Alaska Stat. § 17.30.116(c) (Michie

1983); Ariz. Rev. Stat. Ann. § 13-4311 (D) (Sup p. 1996); C olo.Rev. St

at. § 16-13-505(6) (Supp. 1996); Conn. Gen. Stat. Ann. § 54-36h(b) (West 1994); Ga. CodeAnn. § 16-13-49(o)(5) (1996); Idaho Code § 37-2744(d)(1)(3)(D) (1994); Ka n. Stat. Ann. § 60- 4113( g) (1994); Me. Rev. Stat. Ann. tit. 15, § 5822(4) (West Supp.) (1995); N.H. Rev. Stat. Ann. § 318-B:17-b (IV) (e) (1995); Utah Code Ann. § 58-37-13(9)(g ) (Supp. 1996); Vt. Stat. Ann. tit.18, § 4244(d) (Supp. 1995). Forfeiture statutes specifically providing for a jury tr

ial include: Cal. Health &

Safety Code § 1148 8.5(c)( 2) (West Su pp. 1996) ; Fla. St at. Ann. § 932.704(2) ( W est Supp. 1996) ; N.Y. Pen al La w § 480.10

(Supp. 199 6); R.I . Gen. L aws § 21- 28-5.04. 2(j) (1989); Va. Code Ann. § 19.2-386.10 (Michie 1995); W. Va. Code § 60A-7-705 (1992).

37 United States v. One 1976 Mercedes Benz 280S , 618 F.2d at 4 58; People v. One 1941 Chevrolet Coupe, 231 P.2d 832 , 844 (Cal

. 1951); In re Forf eitureof 1978 Chevrolet Van, 493 So.2d 433, 436 (Fla. 1986); Idaho Dep’t of Law Enforcement ex rel. Code v. Free, 885 P.2d 381, 384-85 (Idaho 1994); People ex rel. O’Malley v. 6323 N. LaCrosse Ave., 634 N.E.2d 743, 746 (Ill

. 199 4); Commonwealth v. One 1972 Chevrolet Van, 431 N.E.2d 209, 209 (Mass. 1982) ; Colon v. Lisk, 47 N.W. 302, 303 (N.Y. 1897); Keeter v. State ex rel. Saye, 198 P. 866, 870 (Okla. 1921); State v. 1 920 Stude baker Tou ring Car, 251 P. 701, 704 (O r. 1926); Co mmonwealth v. One (1) 1 984 Z-28 Camaro Coupe, 610 A.2d 3 6, 39 (Pa. 1992); Medlock v. 1985 Ford F-150 Pick Up, 417 S.E.2d 85, 87 (S.C. 1992).

38 Swailsv. State, 431 S.E.2d 101, 103 (Ga. 1993); State v. Clark, 670 So.2d 493, 501 (La. Ct. App. 1996 ); In re Forf eiture of $1,159,420, 486 N.W.2d 326, 337 (Mich. Ct. App. 1992); State v. One 1921 Cadillac Touring Car, 195 N.W. 778 , 780 (Minn . 1923); State v. M orris, 405 S.E.2d 351, 352-53 (N.C. Ct. App. 1991). -11- Manystates hav e enacted forfeit ure statut es that not o nly est ablish the r ight to recover seizedproperty but also pro scribe the

procedur e for ass erting this right. In these jurisdictions, the statute itself fr e quently states w hether or

not the claim ant may req ues t a t rial by jur y. 36 Howe ver, other states and the federal governm ent have sim ply cr eated a ne w statutor

y right to sue to recover confiscated property without pr

oviding a new

procedur e for ass erting the

right. Whena statute does not provide a specific re medy, the parties are left to their comm on-law
reme dies. In these c ircum stances, the preva iling weight

of authori ty is th at the claim ant has a right

to a jur y tria l even if t

he confis catio n statute do es not specific allyrequire one. 37 Severa l courts, however , have re ached dif ferent results. 38

We need not enter the debate concerning whether p ersons seeking to
recover seized property had a right at comm on law to ha

ve a jur y consi der their claim because the General Assembly

has createda statutory forfeiture procedure thatdoes not inc lude the use of a jur y. T he Tenne ssee Consti tution vests i n the General Assem

bly the power

to enact l egislation to protect the health , safet

y, a nd welfare of our cit

izens, a nd Tenn. Const. ar

t. I, § 6does not

limit the Gen eral Assembl y’s power

to establish new claims and rem edies that do not require a trial-12-

by jury. Acc ordingly , Tenne ssee’s administrative forfeit ure statut es do not run afoul of T enn. Const . art. I, § 6.

V. D UE P ROCESS C LAIMS
Mr. Jon es als o challenge s the com missio ner’s order on due process grounds. He asse

rts that the administrative proceedings wereunfair because they
were presided over by the Commission er of Safety. He also asserts that the delay between the seizur

e and the a

dminis trative

hearings d eprived him

of his right to
aprompt hearing at

a meaningful ti me. We fin d these cla ims to be without meri t.
A. P ECUNIARY B IAS OF THE C OMMISSIONER OF S AFETY
Parties to administrative

proceedi ngs, like parti es to judi cial proc eedings,
are entitled to a neutral decision -maker. Cooper v. W illiamson C

ounty Bd. of Educ., 803 S.W .2d 200, 20 2 (Tenn. 1990); Ogrodowcyk v. Te nnessee B d. for LicensingHealthCare Faciliti es, 886 S.W .2d 246, 25 2-53 (Te nn. Ct. A pp. 1994) (Cantrell, J., concurring). Accordingly, m embers of adm

inistrative agencies are subject to the sam

e disqualif

ication sta

ndards that

apply t o judges when they are perform ing adjudicato ry functions

. T enn essee Cable Television Ass’n v. Tennessee Pub. Ser

v. Comm ’n, 844 S.W .2d 151, 16 4-65 (Te nn. Ct. App. 1992); Tenn. Code Ann. § 4-5-302(a) (1991). Judges can not have a personal financial stake in the proceedings before th em. Tenn. S. Ct. R.10, Can on 3(C)(1)( c). Accordingly, judicial officer s must disqualify thems elv es if their dec ision affe cts their personal c ompens ation. Connally v. Geo rgia, 429 U.S. 245, 250, 9 7 S. Ct. 546, 548 (19 77); In re De nder, 571 S .W. 2d 491, 492 ( Tenn. 197 8). Thi s principle applies to a

dminis trativ e decision-m

akers. Gibson v. Berryhil l, 411 U.S. 564, 5 79, 93 S. Ct. 16 89, 1698 (1973); Ogrodowcyk v. Te nnessee B d. for LicensingHealthCare Fac ilities, 886 S.W. 2d at 253.39 Tenn. Code Ann. § 53-11-201(b)(1) (Supp. 1996).

40 Tenn. Code Ann. § 53-11-204 (1991).

41 Tenn. Code Ann. § 53-11-451(d)(4). -13- This re cord conta

ins no eviden ce that the

Comm issioner of

Safety has a direct, pe rso nal pecunia

ry int erest in t he outcom

e of forf eiture he arings like

the
one involve d in this case. His decis ions do not af fect his pe

rsonal com

pensation. Forfeited property

seized by

a state agency

is sol d at a

public sale

by the Comm issioner of

Genera l Servic es, 39 and the pro ceeds of the sale a re deposit ed in the state tre asury

subject to being all ocated back to the De partm ent of Saf ety to be used to enf

orce the l aws regu lating nar cotic drugs and ma

rijuana

. 40 Th e Departm ent of Safety do es not have access tothe proce eds from the sale of property seiz ed by the Tenn essee Bur eau of Inv estigation or local la w enforc emen

t agencies. 41

Admi nistrative

decision- make

rs are pr esume d to carr

y out their duties with honesty andintegrit y. Cooper v. William son County Bd. o

f Educ., 803 S.W.2d at 203; Tennessee

Cable Television A ss’n v. T enne ss ee Pub. Serv. Co mm’n, 844 S.W. 2d at 165. T

hus , the party

claim ing bias bea

rs the burden of provi ng the gro unds for disqu alificatio n. Gay v. City of Somerville, 878 S.W .2d 12 4, 12 7 (Tenn. Ct. App. 1994). Neither the com missio ner nor his departm ent could ha

ve benefitted from

this forf eiture pr oceeding si nce the m

oney a t issue wa s seized by
aloc al l aw en forc ement age ncy. Accordi ngly, Mr. Jone s has faile d to substanti ate his bias claim with either legal auth ority or facts.

B. D ELAY B ETWEEN THE S EIZURE AND THE H EARING
Mr. Jones asse

rts that the

41-mo nth delay

between the seizur

e of the money and th e he ari ng on hi s cl aim viol ated his co nstitutional right to a h earing at

a m eaningful

time and his stat

utory r ight to a pro mpt he aring. H e argues t ha t th e delay is entire ly att

ributable to the government and that he was pr ejudice d because two ke ywitnesses became unavailable during this period. We have c oncluded that the delay between

the seizure and the hearing is not of constitutional significance.-14- This casepresents t

he first opportunity

for this c ourt to consi der theclaim thata delay

between the seizur

e of prope

rtyand theforfeit

ure hear ing violated

a claiman t’s right to a hearing ata me aningful ti me und er the Fi fth and Fourteen th Amend ments to the Unite d States C onstitution a nd the Due

Process C lause in Tenn. Const. art. I, § 8. Since the Tenne ssee Supr

eme Court has f

ound the scope of the due pro cess prote ctions in the Tennesse e Constitut

ion to besimil ar to those in the United States Con stituti on, Doe v. Norris, 751 S.W .2d 834, 83 8 (Tenn. 1988); State ex rel. Anglin v. Mitchell , 596 S.W .2d 779, 786 (Tenn . 1980), we will look to federal precedents for helpful guidance.

Th e United States Supr

eme Court has r

ecognized

that delay

in ins titutin g civil forfeit

ure proce edings can v iolate a c laima nt’s due process rights. Drawi ng from its speedy trial jurisprudence, the Court dete rmined that forfeiture delay
c lai ms require an examination of the facts of each ca se in light of the follow in g four f actors: ( 1) the leng th of the de lay, (2) the r eason for the delay , (3) the claiman t’s assertion of his or her rights, and (4) th e preju dice to the claimant caused by the delay. United Stat es v. E ight T housan d Ei ght Hundred

and Fifty Do llars in United States Currency, 461 U.S. 555, 564, 1 03 S. Ct. 2005, 2012 (1983). The Tennessee Suprem e Court ha s adopted es sentially the sam e test to determ ine whether pre-accusatorial delay violates du e process . State v. Gray, 917 S.W. 2d 668, 673 (Tenn. 1996) (holding that the courts m ust consider

the length of the delay , the re ason for th e de lay, and the deg ree of pr ejudice , if any , to the accused).
Of these factors, the most critical is the prej udice to the accused

. S tate v. Hal lock, 875 S.W .2d 285, 28 9 (Tenn. Crim . App. 1 993); Tillery v. State, 56 5 S.W. 2d 509 , 510 (Tenn. Crim . App. 1 978). For the purpose s of the inqu iry, the courts ar e chiefly concerne d with the prejudic e to a part y’s ability to ma rshal its evi d ence and to pres ent its cas e. Barker v . Wing o, 407 U.S. 514, 532, 9 2 S. Ct. 2182, 2193 (1972); State v. Vance, 888 S.W .2d 776, 778 (Tenn. Crim. App. 1994). A delay will be c onsidered c onstitutiona lly har mless without a

clear sh owing of actual preju dice. State v. Hallock, 875 S.W .2d at 289.42 The hearing would hav e been held two months earlier in August 1992 had Mr. Jones not failed to appear at a scheduled deposition. -15- The 41-mo nth delay

between the seizur

e of the m

oney a nd the forf

eitur e hearing, while ext

remely long, cannot b e sol ely attributable to the law enforce ment

authoritie s. Mr. Jones did not f ile a tim ely c laim for the r eturn of th e money, and his stan di ng to claim the money w as contest

ed in the co urts. T

he courts did not fina

lly re solve Mr. Jones’s right to cla im the mo ney unt

il April 1992. We cannot fault the comm issioner for not holding the fo rfeiture hearing whileMr. Jone s’s righ

tto claim the m

oney was being litigated. The comm issioner heldthe adm

inistrativ e hearingon Mr. Jon es’s cl aim w ithin six m onths after

this courtdecided th at he sho uld be g ive n an opp ort uni ty to clai m the s eize d mon ey. 42 Thus, the fact s provide no b asis for c oncluding tha t th e comm

issioner i ntentionally delay ed the hea

ring to gain

a tactic al advanta

ge over Mr . Jones. Prejudice is eviden t when wi tnesses d ie or disap pear whi le a hear ing is delay ed. Barker v . Wing o, 407 U.S. at 532, 92 S. Ct. at 2193. H owever, persons seeking to prove tha

t a delay impai red their ability to present

favorable evidence must demonstrate ac tual pr ejudi ce by off ering some pro of of t he wit ness ’s expected testim

ony and of their effor

ts to assure

that these witnesse s would

attend the hearin g. State v. Perkins, 713 S.W.2d 689, 692 (Tenn. Crim . App. 1986); Woodson v. State, 579 S.W .2d89 3, 8 97 (Te nn . Cr im. App. 1978) ; Farr v. State, 506 S.W.2d 811, 814 (Tenn. Crim . App. 1974).

Mr. Jones asse

rts that tw o k ey w itn ess es, H alb ert B rown and Kath ryn Smit h, became unavaila ble becaus e of the dela y. M r . Brown was livingat the HaischiStreet h o use at the t ime of th e seiz ure, an d Ms. S mith was Mr. Jo nes’s former girlfriend. Mr. Jones intended to use these witnesses to prove that he was also residing a

t 2491 Hais chi Stre et at the t ime of the seizure. Mr. Jones has not satisfac torily

demonstrated that the delay prevented him fro m ca

lling these witnesses or that their testimony w ould have been of material assistance.

Mr. Jones did

not com plain about his inability

to call the se witnes s after t his
case was remand ed for a he aring bef ore the co mm

issioner. In June 1992, he represented in a brief

that his w itnesses ha

d not disappe ared. O ne month later, his-16-

lawyer did not include the absence or disappearance of witnesses amongthe pro bl ems confr onti ng him d uring an ar

gument to the adm

inistrativ e law j udge concernin g how the delay had prejudiced his client. Thus, w e can only conclude thatthese witnesses were available to Mr. Jones as late as one m ont h before t

he original da

te of the f orfeitur e hearing

.
Mr. Jones has never come forwar d with an explanation of either Mr. Brown’ s or Ms. Smith’s disappearance between Julyand Octob er 1992. In fact, Ms. Sm ith had not disappea

red at al l because

Mr. Jone s announced at the hea ring that h e knew where s he was an d that she w as availa ble for a t elephone deposit ion. He
never exp lained the

steps he had taken to a ssure her attendanc e at the he arin g . Likewise, he never described the steps he

had taken t

o assur e M r. Brown ’s attendance at the hearing. The department had, however, atte mpted unsuccessf

ully to s ubpoena Mr . Brown
.
M r. Jones also faile d to d emonst rate h ow Mr. B rown’s and Ms . Smith’s testim ony would have

been helpf

ul to him . He int

ended to ca

ll them solely for the purposeof substant

iating his c laim

that hewas also living at 2491 Haischi Street in May 1989 when the money was seized. He has never indi cated tha t either of these witnesse s cou ld ha ve provided testimony concerning the other necessary elem ent of his cla im - t hat he own ed the money

he was se eking to re cover. In fact, the record sh ows affi

rmat ively t hat these t

wo w itness es would ha

ve been of

no assistance on this issue. Mr. Brown tol d the author ities at th e tim

e of the seizure thathe did not know

who the m

oney be longed to, a

nd Mr. Jone s testi fied a t the October 1992 hearin g that Ms. Smit h did not knowhow m

uch mo ney he

had.
The delay between

the seizur

e of the money a

nd the forf

eiture he aring wa s, for the m ost part, ca

used by the protra

cted litiga

tion over Mr . Jones’ s right to claim the seized money. Mr. Jones has not convinced u s that this de lay se riously underminedhis ability

to present

his claim . Acco rdingly , we ha ve concluded that Mr. Jones was provided a hearing on h is claim at a m eaningful t

ime un der th e circumstances.-17- VI. T HE A DEQUACY OF THE S UPPORTING P ROOF
Fin all y, Mr. Jones asserts thatthe comm issioner’s decision is not supported by substan tial and materia l evidenc e. He argue s tha t the c ommissio ner’s financial bias caused him

to overlook the overwhe lming e vidence e stablishingMr. Jo nes’s
own ership of the sei zed money. Having al ready resolved t

he allega ti on s co ncerning the comm

issioner’s alleged bias, we now turn to the evidentiary support for

the com missio ner’s decision.

A.

O urre view of the comm issioner’s decision is governed by the Uniform Admi nistrative

Procedur es Act. Tenn. Code Ann. § 4-5-322(h )(5) (S upp. 1996) requires the courts to reverse a final administrative decision that is “ unsupported by evidence which is both substantial and material in the light of the entire
r ecord.” We do not reweig h the evid ence under this stan dard. Sanifill of Tennessee, Inc. v. Tennesse e Solid Waste Dispos al Contr ol Bd., 907 S.W .2d807, 810 (Tenn. 1995); Humana of Tennessee v. Tennesse e Health F acilities C

omm’n, 551 S.W.2d 664, 667 (Te nn. 1977). Rather, we revi ew the r ecord to determ

ine
w h ether the adm inistrativ e decision is based on “ such rele vant eviden ce as a reasonabl e mind m

ight acce pt to support a

rational c on clusion and such as to furnish areasonab ly sound basis for the action under consideration.” Southern Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984).

A n agency’s decision may be supported by substantial and mate rial evidence even when the evidence co uld sup port anot her conclu sion. Hughes v. Board of Comm’ rs, 204 Te nn. 298, 30 5, 319 S. W.2d 48 1, 484 (1958 ); Estate of Street v. State Bd. of Equalization, 812 S.W .2d583, 587 (T enn. Ct. App. 1990). Thus, the possibility of drawing inconsistent conclusions from the proof does not prevent an ag enc y’s de cis ion from b ein g su ppo rted by s ubstantial and material evidence. See Consolo v. Federal M aritime C omm’n, 383 U.S. 607, 620, 86 S. Ct. 1018, 1026 (1966); 2 Kenneth C. Dav is & Richa

rd J . Pierce , Jr., Administrative-18-

Law Treatise§ 11.2 at 17 7 (3d ed. 19 94). The cour ts need only

reject a n agen cy’s factual findings w hen, consideri ng the rec ord as a whole, a reasonab le mi nd would
necessar ily come to a diffe rent conclusion. 5 Jacob A. Stein, Administ rative Law § 51.02, at 51-61 (1992).
The substantial

and ma terial e vidence sta

ndard in T enn. Code

Ann. § 4- 5- 322(h)(5) still requi

res a sea rching and c areful inquiry into the re cord and the basis for the adminis trative de cision. Sanifill of Tennessee, Inc. v. Tennessee Solid Wa ste Disposal Control Bd., 907 S.W .2d at 810; Wayn e Co unt y v. S oli d Wa st e Disposal Control Bd., 756 S .W. 2d 274 , 280 (Tenn. Ct. A pp. 1988). This is especial ly true in fo rfeiture proceedi ngs because

the fact s must f

all within both the spirit and the letter of the law before a person can be deprived of his or her pro per ty. See Bigg s v. State, 207 Tenn. 603, 608, 341 S.W.2d 737, 740 (1960); Hays v. Montague, 860 S.W.2d 403, 406 (Tenn. Ct. A pp. 1993).

B.
The comm

issioner determ

ined that Mr. Jones f

ailed to pr ove that he owned the money

seized at 2491 Haisc hi Street. The comm issioner also found that Mr. Jones was not a resident o f the house . A cla imant , howeve

r, is not require d to prove residenc e but rathe r to prove a

n innocent in

tere st in the s eized prop erty. See Tenn. Code Ann . § 53-11-20 1(f). Thus, a conclusion t hat Mr. J ones did not residein th e hou se do es no t, by its elf, de feat M r. Jon es’s cla im, but it could t end to disprove Mr. Jones’s claim that he owned the m oney found in the house.

Mr. Jones’s descripti on of how th e money was packaged diff

ered fr om the testim ony of theofficers who seized the money. He testifie d that he pla ced loose money in the hole behind t

he entertainment center and that very little of the money
was packaged i n sandwich bags. He also testif

ied that the

money was wr apped in $1,000 bundles. T

he office rs testif ied that al l the money f ound behin d the entertai nment

center was separately w

rapped in sandwich bags and that each bag contained a$2,000 roll

of bills. They

also testif

ied that al l the sandwich bags full of mon ey w ere conta

ined in a pa

per groce

ry sa ck. The omissi ons and inconsistencies in Mr. J ones ’s test imony concerni ng the m

oney pr ovided the-19-

comm issioner with an appropriate basis to find that Mr. Jones had not proved that the money was his.

Mr. Jones’s claim

is also underm

ined by his sketchy

proof conc erning how he was able

to accum ulate $45, 000 and the

inconclusiv e testim

ony of his spending and living h abits. He testifie d that the m oney r epresent ed his life savings and that he had obtain t

he mon ey thr

ough full-ti me w ork, m

oonlighting, and gam

bling. He also te stified that he had stopped using banks during his divorce . The only documented proof of Mr. Jones’s income was a 1 989 W-2 fo rm sho wing that h e had earned $18,434 that year.

Mr. Jones also c laime d that he pa id his c hild support t

hrough a pay

roll deduc tion. Howeve

r, the a vailable r ecords indi cated tha

t he had made only thirteen child suppor

t paym ents between

1978 and 1988 a

nd that his child support
was $1,709 in ar

rears. While his form

er girlf riend and hi s f

irst cousin testified thatMr. Jones loane d them money , neither

of them knew whe

re hegot the money, how much m

oney he had, or where he kept his m oney. Mr. Jones asserted that Mr. Brown was the only other person who knew about his money and its hiding place, but Mr. Brown told the off

icers w ho found the m

oney th at he did not

know who itbelonged to. Mr. Jone s’s inab ility t o describe

the money a

ccurate ly and t

o prove t hathe had the m

eans to ac cumul ate appro ximat ely $45 ,000 sup port th e commissi oner’s decision that Mr. Jones had not proved that the seized money w as his. After an exam

ination of t

he entire record, we canno t conclude that a reasonabl e mind

would nec essarily

come to a diffe rent conc lusion.

We need not determ

ine in this case whether the record contains substantial and mate rial proo f that theseized m oney w as the proc eeds of ill egal drug tra fficking. Tenn. C ode Ann. § 53-11-201( f) does not perm it the com

missi one r to grant a claim for seized property until theclaimant proves an innocent interest in the seize d property . Mr. J ones did not substantiat

e his claim

that he ow ned the seized money. In theabsence of any other valid claim of ownership, the money may be summa

rily forfe i ted to the seizing agenc y wit hout the nec essity

of presentin g proof th at it was the proceeds o f illegal d rug traffick ing.-20- VII.

We aff irm t he j ud gmen t o f th e tr ial cou rt a ffi rmin g t he c ommi ss ione r’s order thatthe $45,445 in currency seized at 2491 Ha

ischi Stre et on May

26, 1989 sho uld be forfeited in accordance with Tenn. Code Ann. § 53-11-451(a)(6)( A). We also rem

and the ca se for w hatever f urther pr oceedin gs m ay be required and tax the costs of

this appea

l to F reddie Lee Jones and his surety for which execution, if necessary, m ay issue.

________________ __ __________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ SAMUEL L. LEWIS, JUDGE