Bryan Ashley Driskell and Hill Bail Bonds v. State

Bryan Ashley Driskell et al. v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-00340-CR

     BRYAN ASHLEY DRISKELL

     AND HILL BAIL BONDS,

                                                                              Appellants

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court

Bosque County, Texas

Trial Court # 3501

                                                                                                                

MEMORANDUM OPINION

                                                                                                                  

      This appeal is one of five cases involving the same issues. We will summarily apply our ruling from another case and affirm the judgment.

      Hill Bail Bonds (HBB) is the surety on a bail bond for $500, on which Bryan Ashley Driskell is the principal and the person charged with the offense. After he failed to appear, judgment nisi was entered. He was arrested three months later. On final hearing, the court heard evidence and arguments, then entered judgment for 25% of the bond amount. HBB appeals from that ruling.

      In two issues, HBB asserts: (1) the court abused its discretion, because it applies the same formula to all bond-forfeiture cases and did not review any factors appropriate to a determination of the amount of the remittitur; and (2) HBB is entitled to a greater remittitur because a decision of the Court of Criminal Appeals was wrong because it did not take certain legislative history into account.

      The State initially says that the issues are not preserved for our review because no objection was made to the amount of the remittitur, to the application of the schedule, or the failure to remit the entire bond. No motion for new trial or to modify the judgment was filed. The appeal is, however, from a final judgment, and the record is clear that HBB was arguing for a greater, or complete, remittitur. Thus, we believe that the issues are properly before us.

      In a case involving the essentially the same facts and arguments, we determined that the court did not abuse its discretion. Burns and Hill Bail Bonds v. State, No. 10-00339-CR slip op. at 4 (Tex. App.—Waco May 5, 2004, no pet. h.). Based thereon, we overrule both of HBB’s issues in this case. We affirm the judgment.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed May 5, 2004

Do not publish

[CV06]

.0pt;font-family: "CG Times"'>, Texas

Trial Court # 95619

 

DISSENTING Opinion

 

 

  I fail to see why we should undermine the legislature and the agreement of the parties.  We only interpret a statute when it is ambiguous.  Section 35.53(a)(3) expressly and unequivocally states that section 35.53 does not apply to a contract if former section 1.105 of the Code applies.  Tex. Bus. & Com. Code Ann. § 35.53(a)(3) (Vernon 2002).

          There is no dispute that this agreement meets the requirements to make former section 1.105 applicable.  See Tex. Bus. & Com. Code Ann. § 1.301 (Vernon Supp. 2004-2005).  Drug Test simply wants us to construe that it does not apply. 

          The purpose of the statutes and their interaction seems very practical to me.  A forum-selection clause dispels any confusion about where suits arising from the contract must be brought and defended, which spares litigants the time and expense of pretrial motions to determine the correct forum and conserves judicial resources.  In re AIU Ins. Co., 2004 Tex. LEXIS 783, *10, 47 Tex. Sup. J. 1093 (Tex. Sept. 3, 2004).  If both states have a reasonable relationship to the transaction, the parties can agree to resolve their disputes under the contract in either forum, and that part of the agreement need not draw any particular attention to itself by type style or size of print.  Tex. Bus. & Com. Code Ann. § 1.301 (Vernon Supp. 2004-2005).

          But if the parties to an agreement want the law of some other state to apply to the transaction, the law of a state that does not otherwise bear a reasonable relationship to the transaction, then that provision must be conspicuously set out in the agreement.  Tex. Bus. & Com. Code Ann. § 35.53(b) (Vernon 2002).  This makes a lot of sense to me.  Only when the parties are choosing the law of a state unrelated to the transaction, an agreement the parties can make, must that provision by its type style or size of print, draw attention to itself.

          These parties agreed that the law of a state that was reasonably related to their transaction applied.  Because former section 1.105 of the Code applies to this contract, section 35.53 does not.  I do not know how the legislature could have made it any clearer.  I would affirm the trial court’s decision.  Because the Court does not, I respectfully dissent.

 

                                                                                    TOM GRAY

                                                                                    Chief Justice

 

 

Dissenting opinion delivered and filed December 8, 2004