PD-1275-15
PD-1275-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/25/2015 2:26:33 PM
Accepted 9/30/2015 11:43:07 AM
NO.________________________ ABEL ACOSTA
CLERK
IN THE
TEXAS COURT OF CRIMINAL APPEALS
________________________________________________
THE STATE OF TEXAS, Petitioner
v.
TOM BENSON, Respondent
________________________________________________
No. 03-15-00121-CR
In the Court of Appeals for the
Third District of Texas at Austin
No. C-1-CV-14-002294
County Court at Law No. 7
Travis County, Texas
________________________________________________
PETITION FOR DISCRETIONARY REVIEW
________________________________________________
Tim Labadie
Assistant Travis County Attorney
State Bar No. 11784853
P.O. Box 1748
Austin, Texas 78767
September 30, 2015 (512) 854-5864
(512) 854-9316 (fax)
tim.labadie@traviscountytx.gov
Attorney for the State of Texas, Petitioner
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS ..........................................................................................i
IDENTITY OF JUDGE, PARTIES, AND COUNSEL ....................................... iii
INDEX OF AUTHORITIES .................................................................................. iv
STATEMENT REGARDING ORAL ARGUMENT............................................ 1
STATEMENT OF THE CASE ................................................................................2
STATEMENT OF PROCEDURAL HISTORY ..................................................... 3
QUESTION PRESENTED FOR REVIEW ............................................................ 3
REASONS FOR GRANTING REVIEW ............................................................... 4
ARGUMENT ............................................................................................................4
1. THE ISSUE: IS THE PRINCIPAL’S RETURN TO THE COUNTY OF
PROSECUTION AN ELEMENT OF THE INCARCERATION
EXONERATION? ...............................................................................................4
2. THE PURPOSE OF ARTICLES 22.13(A)(5) AND 22.13(B) IS TO GIVE
THE SURETY FINANCIAL INCENTIVE TO RETURN THE PRINCIPAL TO
THE COUNTY OF PROSECUTION ..................................................................... 5
3. THE COURT CAN CONSIDER THE LEGISLATIVE HISTORY OF ARTICLE
22.13 ..............................................................................................................11
4. GENERALLY, A REDUCTION OF THE SURETY’S LIABILITY REQUIRES
THE PRINCIPAL’S RETURN.............................................................................14
PRAYER FOR RELIEF ..........................................................................................18
CERTIFICATE OF COMPLIANCE ....................................................................19
i
CERTIFICATE OF SERVICE ...............................................................................19
APPENDIX ......................................................................................................... post
ii
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
TRIAL JUDGE:
Honorable Todd Wong –County Court at Law No. 1, Travis County, Texas
PARTIES TO THE JUDGMENT:
The State of Texas (Plaintiff)
Brian Roy Whipple (Principal-Defendant)
Tom Benson (Surety-Defendant)
TRIAL AND APPELLATE COUNSEL:
Tim Labadie
Assistant Travis County Attorney
P. O. Box 1748
Austin, Texas 78767
Counsel for the State of Texas
Tom Benson
900 Jackson St., Suite 750
Dallas, Texas 75202
Pro se
Brian Roy Whipple did not appear in the trial court nor in the court of
appeals.
iii
INDEX OF AUTHORITIES
Page
CASES
Armadillo Bail Bonds. v State,
802 S.W.2d 237 (Tex. Crim. App. 1990) ..................................................... 9
Benson v. State,
No. 03-15-00121-CR, 2015 Tex. App. LEXIS 9238
(Tex. App.Austin, Aug. 31. 2015) ...............................................9, 11, 15
Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991) ...........................................5, 6, 11
Chase v. State,
448 S.W.3d 6 (Tex. Crim. App. 2014) .......................................................12
Ex parte Reis,
117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) ................................................. 6
Ex parte Vasquez,
558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................................... 6
Gramercy Insurance Co. v State,
834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) .....................7, 17
Grimes County Bail Board v. Ellen,
267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) ... 7
Hardy v. State,
281 S.W.3d 414 (Tex. Crim. App. 2009) ..................................................... 6
Lyles v State,
850 S.W.2d 497 (Tex. Crim. App. 1993) ..................................................... 9
iv
Makeig v. State,
802 S.W.2d 59 (Tex. Crim. App. 1990) ....................................................... 8
McKenna v State,
247 S.W.3d 716 (Tex. Crim. App. 2008) .......................................6, 7, 8, 17
Safety National Casualty Corp. v State,
273 S.W.3d 157 (Tex. Crim. App. 2008) ................ 5, 7, 8, 9, 10, 11, 12, 15
State v Matyastik,
811 S.W.2d 102 (Tex. Crim. App. 1991) ..................................................... 9
STATUTES
TEX. CODE CRIM. PROC. art. 17.01 ........................................................................... 6
TEX. CODE CRIM. PROC. art. 17.02 ........................................................................... 6
TEX. CODE CRIM. PROC. art. 17.08 ........................................................................... 6
TEX. CODE CRIM. PROC. art. 22.13 .......................................................7, 8, 9, 11, 14
TEX. CODE CRIM. PROC. art. 22.13(a)(1)............................................................8, 14
TEX. CODE CRIM. PROC. art. 22.13(a)(2)............................................................8, 14
TEX. CODE CRIM. PROC. art. 22.13(a)(3)................................................8, 14, 15, 16
TEX. CODE CRIM. PROC. art. 22.13(a)(4)............................................................8, 14
TEX. CODE CRIM. PROC. art. 22.13(a)(5)......... 2, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17
TEX. CODE CRIM. PROC. art. 22.13(a)(5)(A) ..................................3, 4, 5, 12, 13, 14
TEX. CODE CRIM. PROC. art. 22.13(b) ......... 2, 3, 5,6, 7, 8, 9, 10, 11, 12, 13, 14, 15
v
TEX. CODE CRIM. PROC. art. 22.16 ...........................................................8, 9, 15, 16
TEX. CODE CRIM. PROC. art. 22.16(a) ..............................................................15, 16
TEX. CODE CRIM. PROC. art. 22.16(b) ....................................................................16
TEX. CODE CRIM. PROC. art. 22.17 ...............................................................8, 16, 17
TEX. CODE CRIM. PROC. art. 22.17(a) ....................................................................17
TEX. GOV’T CODE § 311.021(2) ...............................................................................12
TEX. GOV’T CODE § 311.023 .....................................................................................6
OTHER
SENATE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS,
Tex. S.B. 1336, 78th Leg., R.S. (2003) ...................................................................10
vi
NO.________________________
IN THE
TEXAS COURT OF CRIMINAL APPEALS
________________________________________________
THE STATE OF TEXAS, Petitioner
v.
TOM BENSON, Respondent
________________________________________________
No. 03-15-00121-CR
In the Court of Appeals for the
Third District of Texas at Austin
No. C-1-CV-14-002294
County Court at Law No. 7
Travis County, Texas
________________________________________________
PETITION FOR DISCRETIONARY REVIEW
________________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
The State of Texas petitions the Court to review and reverse the
judgment of the Austin Court of Appeals, which reversed the trial court’s
judgment and remanded the case to the trial court.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would be helpful to resolve whether a principal-
defendant must be returned to the county of prosecution before a surety’s
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liability for the forfeiture of the appearance bond is limited by articles
22.13(a)(5) and 22.13(b). This is a question of first impression in this Court
in an area of law rarely addressed by the Court. At oral argument, the
Court would be able to draw upon the experience and knowledge of both
the State’s attorney and the bondsman in order to better understand the
inner workings of bail bonds, the law applicable to bail bonds, and the
impact the Court’s decision will have on this integral part of our criminal
justice system.
STATEMENT OF THE CASE
On August 29, 2013, Brian Roy Whipple, as Principal, and Tom
Benson, as Surety, executed an appearance bond payable to the State of
Texas in the amount of $5,000.00.1 This bond was conditioned on Mr.
Whipple’s personal appearance on a misdemeanor charge pending in
Travis County. 2 On February 14, 2014, Brian Whipple failed to appear in
court and the bail bond was forfeited.3
In answering the bond forfeiture suit, Tom Benson did not deny the
making and the forfeiture of the bond. Instead, he asserted that Mr.
1 CR 4,5.
2 CR 4,5.
3 CR 4.
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Whipple was incarcerated in Las Vegas, Nevada within 180 days of his
failure to appear in Travis County, claiming that this provided him a
defense to liability under article 22.13(a)(5)(A) of the Texas Code of
Criminal Procedure. 4 Mr. Benson did not allege or present evidence that
Mr. Whipple ever returned to Travis County.
On January 21, 2015, the trial court granted Plaintiff’s Motion for
Summary Judgment and rendered judgment against Brian Whipple and
Tom Benson for the full amount of the bond ($5,000.00) plus court costs.5
STATEMENT OF PROCEDURAL HISTORY
In a decision rendered on August 31, 2015, a panel of the Third Court
of Appeals reversed the judgment of the trial court and remanded the case.
The State did not file a Motion for Rehearing in the Third Court of Appeals.
QUESTION PRESENTED FOR REVIEW
Whether the principal-defendant’s return to the county of
prosecution is an element of a surety’s exoneration defense to bond
forfeiture liability under articles 22.13(a)(5)(A) and 22.13(b) of the Texas
Code of Criminal Procedure?
4 CR 14.
5 CR 24-25.
-3-
REASONS FOR GRANTING REVIEW
While the issue in this case had never been directly addressed by any
Texas court before the decision of the court of appeals, its resolution was
suggested by this Court in a manner that directly conflicts with the
decision of the court of appeals. This is an important issue pertaining to the
law of bond forfeitures that has not been, but should be, settled by this
Court.
ARGUMENT
1. THE ISSUE: IS THE PRINCIPAL’S RETURN TO THE COUNTY OF
PROSECUTION AN ELEMENT OF THE INCARCERATION EXONERATION?
Tom Benson has never denied that he and Brian Whipple made a
$5,000.00 appearance bond or that this bond forfeited because Mr. Whipple
failed to appear in court in Travis County or that Mr. Whipple has never
returned to the Travis County criminal justice system. Instead, Mr. Benson
invoked the incarceration exoneration found in articles 22.13(a)(5)(A) and
22.13(b) of the Texas Code of Criminal Procedure, which provide:
(a) The following causes, and no other, will exonerate the defendant
and his sureties, if any, from liability upon the forfeiture taken:
. . .
5. The incarceration of the principal in any jurisdiction in the
United States:
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(A) in the case of a misdemeanor, at the time of or not
later than the 180th day after the date of the principal's
failure to appear in court[.]
(b) A surety exonerated under Subdivision 5, Subsection (a), remains
obligated to pay costs of court, any reasonable and necessary costs
incurred by a county to secure the return of the principal, and interest
accrued on the bond amount from the date of the judgment nisi to the
date of the principal's incarceration.
Tex. Code Crim. Proc. articles 22.13(a)(5)(A) & 22.13(b).
The State contends, based in part on this Court’s decision in Safety
National Casualty Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App. 2008),
that article 22.13(a)(5)’s exoneration is contingent on the principal’s return
to the county where the forfeiture occurred because article 22.13(b) imposes
liability on the surety for the costs incurred by that county in returning the
principal. Mr. Benson argues, and the Austin court of appeals holds, that a
surety is exonerated upon the principal’s incarceration without regard to
his or her return to the county of prosecution.
2. THE PURPOSE OF ARTICLES 22.13(A)(5) AND 22.13(B) IS TO GIVE THE
SURETY FINANCIAL INCENTIVE TO RETURN THE PRINCIPAL TO THE
COUNTY OF PROSECUTION
To resolve this issue, the Court must engage in statutory construction
of articles 22.13(a)(5) and 22.13(b) in order to determine their fair and
objective meaning at the time of their enactment. Boykin v. State, 818 S.W.2d
-5-
782, 785 (Tex. Crim. App. 1991). Initially, the Court must consider the
literal text read in light of the rules of statutory construction, such as those
found in Chapter 311 of the Government Code. Hardy v. State, 281 S.W.3d
414, 422 (Tex. Crim. App. 2009). If the statute is ambiguous or application
of its plain language would lead to absurd consequences, the Court should
not literally construe the statute and can consider other sources, such as
legislative history, to determine the meaning of the statute. Boykin v. State,
818 S.W.2d at 785-86. See also, Tex. Gov’t Code §311.023.
In determining the meaning of articles 22.13(a)(5) and 22.13(b), the
Court must bear in mind that the purpose of bail is to secure the principal’s
appearance in court so that the criminal charges against him or her can be
resolved. McKenna v State, 247 S.W.3d 716, 719 (Tex. Crim. App. 2008); Ex
parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Reis, 117
Tex. Crim. 123, 127, 33 S.W.2d 435, 437 (1930).6
6 See also, Tex. Code Crim. Proc. art. 17.01 (bail is defined as “the security given by
the accused that he will appear and answer before the proper court the accusation
brought against him.”); id. art. 17.02 (“A ‘bail bond’ is a written undertaking [by the
principal and surety] for the appearance of the principal . . . to answer a criminal
accusation.”); id. art. 17.08 (a bail bond must contain a promise by the principal and
surety promise that the principal will appear before the proper court to answer the
accusation against him).
-6-
In light of this purpose, the law mandates that the principal’s
nonappearance normally will result in the total forfeiture of the bond
amount. McKenna v State, 247 S.W.3d at 719. Even after forfeiture, the
State’s primary concern is the principal’s appearance, not collecting the
bond amount. See, Gramercy Insurance Co. v. State, 834 S.W.2d 379, 381-82
(Tex. App.−San Antonio 1992, no pet) (a bail bond is not intended to
function as a revenue device for the government). Indeed, the presence of a
bail bond protects the public interest in having the principal appear in
court by encouraging the surety’s participation in the return of the
principal. Grimes County Bail Bond Board v. Ellen, 267 S.W.3d 310, 317 (Tex.
App.−Houston [14th Dist.] 2008, pet. denied).
The exoneration based on the post-forfeiture incarceration of the
principal found in articles 22.13(a)(5) and 22.13(b) was added to Chapter 22
of the Code of Criminal Procedure in 2003. Safety National, 273 S.W.3d at
160. Prior to that time, article 22.13 recognized just four causes for
exoneration; all of which resulted in a complete exoneration, and none of
which focused on the principal’s post-forfeiture conduct. 7 While, prior to
7 These causes are invalid and non-binding bond, death of the principal before the
forfeiture, sickness of the principal or some other uncontrollable circumstance, and
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2003, Chapter 22 contained other mechanisms8 allowing a trial court, in its
discretion, to reduce the surety’s liability when the principal was returned
to the county of prosecution, these were contingent on the surety showing
good cause for the principal’s failure to appear and that the surety
participated in the return of the principal to the county of prosecution.
McKenna v State, 247 S.W.3d at 719; Makeig v. State, 802 S.W.2d 59, 62-63
(Tex. Crim. App. 1990).
By enacting articles 22.13(a)(5) and 22.13(b), the Legislature created a
less than total exoneration, not based on good cause for the failure to
appear, but on the principal’s post-forfeiture incarceration. Shortly after
this cause for exoneration was added to article 22, the State argued to this
Court that article 22.13(a)(5) violates the separation of powers provision in
the Texas Constitution. 9 Safety National Casualty Corp. v. State, 273 S.W.3d
failure to present an indictment or information at the first term of court after bail made.
Tex. Code Crim. Pro. art. 22.13(a)(1)-(4).
8 These mechanisms are remittitur under article 22.16 and the special bill of review
under article 22.17. Article 22.16 was also amended in 2003, but article 22.17 remains the
same.
9 The State argued that article 22.13(a)(5) was unconstitutional because it
effectively prohibits the entry of a judgment for 180 days (or 270 days for a felony). To
fully understand and appreciate the issue facing the Court, one must know a bit of the
history of articles 22.13 and 22.16. Prior to June 2003, article 22.13 listed four situations,
not including incarceration, in which the principal and the surety would be completely
exonerated from liability for a bond forfeiture. Article 22.16, on the other hand,
provided five situations, including the principal’s incarceration, where the surety’s
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157 (Tex. Crim. App. 2008). Envisioning the unjust consequences of the
construction given to article 22.13(a)(5) by the Austin court of appeals, the
State complained to this Court that the surety would be exonerated even if
the principal were arrested elsewhere on other charges but not returned to
the county of prosecution. Safety National, 273 S.W.3d at 163. The Court,
calming the State’s fears, found this construction of article 22.13(a)(5)
“simply incorrect” because article 22.13(b) imposes liability on the surety to
pay the costs incurred by a county to secure the principal’s return. Id. Thus,
this Court limited the incarceration exoneration to situations where the
principal’s return to the county of prosecution is certain.10 Id.
liability would be limited to court costs, return costs, and interest on the bond. Article
22.16 also placed time constraints on a court entering judgment in the bond forfeiture
suit (9 months for a misdemeanor, 18 months for a felony). In Armadillo Bail Bonds v.
State 802 S.W.2d 237 (Tex. Crim. App. 1990), State v. Matyastik, 811 S.W.2d 102 (Tex.
Crim. App. 1991), and Lyles v. State, 850 S.W.2d 497 (Tex. Crim. App. 1993), the Court
held that these time constraints violated the separation of powers provision of the Texas
Constitution. Even so, the Legislature did not attempt to fix the problem until 2003, at
which time it removed the time constraints from article 22.16 and moved to article 22.13
the limitation on liability because of the principal’s incarceration. In this context, the
State in Safety National argued that the 180/270 day provisions of article 22.13 were
similar to the 9/18 month provisions that had been ruled unconstitutional. The Court
disagreed finding no requirement in article 22.13 that the court wait any amount of time
before taking a judgment. Safety National Cas. Corp. v. State, 273 S.W.3d at 164.
10 Contrary to the Austin court’s assertion, a principal’s return to Texas is not
certain simply because he is incarcerated in another state. Benson v. State, 2015 Tex.
App. LEXIS 9238 at *10. Mr. Whipple is a prime example. While Mr. Benson presented
some evidence that Mr. Whipple was incarcerated in Nevada, there is no evidence that
either Mr. Benson or the State knew of this incarceration while Mr. Whipple remained
-9-
Articles 22.13(a)(5) and 22.13(b) were added to Chapter 22 in 2003
because:
. . . the state is more interested in having the defendant appear
than in receiving forfeited bond money. Setting time limits on
when bonds would be forfeited would result in more
defendants ultimately appearing in court because bondsmen
would have a financial incentive to produce the principal many
weeks after he or she originally failed to appear in court . . .
[and] would give bondsmen consistency for principals who
were incarcerated, while allowing a judge to adjust the time
period as needed in a particular case. SENATE COMM. ON
CRIMINAL JURISPRUDENCE, BILL ANALYSIS, Tex. S.B.
1336, 78th Leg., R.S. (2003).
Quoted in Safety National Casualty Corp. v. State, 273 S.W.3d 157, 162-63
(Tex. Crim. App. 2008) (emphasis added).
Thus, articles 22.13(a)(5) and 22.13(b) serve the bond’s purpose of
securing the principal’s appearance in court even after the principal’s
nonappearance by giving the surety a financial incentive (i.e., reduced
liability) to return the principal to the county of prosecution. The Austin
court of appeals, however, abrogates the bond’s purpose by rewarding Mr.
Benson with very limited liability for breaking his promise to insure Mr.
Whipple’s appearance in Travis County simply because Mr. Whipple was
in custody. Consequently, Mr. Whipple has never returned to the custody of Travis
County or any other county in Texas.
-10-
incarcerated in Nevada, even though Mr. Whipple was not returned to
Travis County. Moreover, there is no evidence that Mr. Benson was
instrumental in Mr. Whipple’s arrest in Nevada, that Mr. Benson informed
Travis County of Mr. Whipple’s arrest while he still was in custody so that
Mr. Whipple might be extradited to Texas, or that Mr. Benson or the State
even knew of the incarceration at the time it occurred.
Surely, this is not what the Legislature intended when it added
articles 22.13(a)(5) and 22.13(b) to the body of law governing bail bonds.
3. THE COURT CAN CONSIDER THE LEGISLATIVE HISTORY OF ARTICLE
22.13
The Austin court of appeals refused to consider the bill analysis cited
above and relied on by this Court in Safety National because it concluded,
without any analysis and in a footnote, that article 22.13 is not ambiguous.
Benson v. State, No. 03-15-00121-CR, 2015 Tex. App. LEXIS 9238, at *10 n.3
(Tex. App.Austin, Aug. 31. 2015). This Court has recognized two
situations where it will consider legislative history in construing a statute:
when that statute is ambiguous or when application of the plain language
would lead to an absurd result. Boykin v. State, 818 S.W.2d 782, 785 (Tex.
Crim. App. 1991).
-11-
A statute is ambiguous when it is "reasonably susceptible to more
than one understanding." Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App.
2014). Reading article 22.13(a)(5)(A) alone, one could conclude that the
principal’s return is not necessary to trigger exoneration. However, it is
reasonable to conclude that the principal must be returned to the county of
prosecution before the exoneration is triggered when articles 22.13(a)(5)(A)
and 22.13(b) are read together, as the rules of statutory construction
demand. Tex. Gov’t Code §311.021(2). Indeed, as mentioned above, this
Court suggests this very construction in Safety National Casualty Corp. v.
State, 273 S.W.3d 157 (Tex. Crim. App. 2008). Thus, articles 22.13(a)(5)(A)
and 22.13(b) are ambiguous.
Additionally, the construction given to articles 22.13(a)(5)(A) and
22.13(b) by the court of appeals leads to absurd results. First, it allows the
surety to take advantage of article 22.13(b)’s greatly reduced liability
without requiring the return of the principal to the county of prosecution,
thereby defeating the purpose of the bail bond.
Second, if the court of appeals is correct, the resolution of the bond
forfeiture suit and the underlying criminal case will be delayed, and
perhaps never resolved, since the surety no longer has an incentive to seek
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the return of the principal. Instead, the Austin court has given the surety an
incentive to not have the principal returned to the county of prosecution so
as to avoid liability for the return costs.
The decision of the court of appeals forces the State to choose, in
those cases where the principal is not returned to the county of
prosecution, between a timely resolution of the bond forfeiture suit,
without collecting return costs, or leaving the bond forfeiture suit pending
until the principal returns, which may never happen, in order to collect the
return costs. Under the first choice, the State runs the risk of bearing the
costs of return, when the Legislature intended those costs to be borne by
the surety, if the principal returns after the resolution of the bond forfeiture
suit. Under the second choice, the State runs the risk that the suit will never
be resolved because the principal never returns or that the surety will no
longer be in business or solvent upon the principal’s return.
Thus, the Court can and should look to the legislative history to
determine the fair and objective meaning of these provisions. For, in doing
so, the Court will see that the Legislature did not intend articles
22.13(a)(5)(A) and 22.13(b) to apply to a fortuitous incarceration in another
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state on another charge that does not result in the principal’s return to the
county of prosecution.
4. GENERALLY, A REDUCTION IN THE SURETY’S LIABILITY REQUIRES THE
PRINCIPAL’S RETURN
The incarceration exoneration under articles 22.13(a)(5) and (b) is but
one of several mechanisms available to the surety to minimize its bond
forfeiture liability, most of which require the return of the principal to the
county of prosecution. 11 For example, a surety is completely exonerated
from liability if the principal was prevented from appearing because he
was sick or because of an uncontrollable circumstance, provided that the
principal had no fault in causing the situation that prevented his
appearance. Tex. Code Crim. Proc. art. 22.13(a)(3).
Before the surety can take advantage of this exoneration, the
principal must “appear before final judgment on the bond to answer the
accusation against him, or show sufficient cause for not so appearing.” Tex.
Code Crim. Proc. art. 22.13(a)(3). Because similar language is not found in
article 22.13(a)(5)(A), the court of appeals held that the principal’s return is
11 There are three causes for exoneration under article 22.13 that do not require the
return of the principal: when the bond is invalid and not binding (article 22.13(a)(1)),
when the principal dies before the forfeiture occurs (article 22.13(a)(2)), and when an
indictment or information is not presented timely and the prosecution is not continued
(article 22.13(a)(4)).
-14-
not required. Benson v. State, 2015 Tex. App. LEXIS 9238, at *6-*7. However,
in Safety National, the Court found that the language in article 22.13(b)
imposing liability on the surety for return costs limits article 22.13(a)(5)’s
application to situations where the principal’s return is certain. Safety
National, 273 S.W.3d at 163. The point of Safety National missed by the court
of appeals is that by retaining the surety’s liability for return costs when
article 22.13(a)(5) applies, the Legislature intended that the principal be
returned to the county of prosecution. Moreover, there is no need for
language similar to article 22.13(a)(3) because application of the
incarceration exoneration is not dependent on good cause for the
principal’s failure to appear. Article 22.13(a)(5) is not concerned about why
the principal failed to appear. It is only concerned about the principal’s
return to the criminal justice system.
Article 22.16 also limits the surety’s liability for a bond forfeiture. If,
before a final judgment is rendered in the bond forfeiture suit, the principal
is arrested and released on a new bond or the criminal case in which the
forfeited bond was made is dismissed, the surety’s liability is reduced to
court costs, interest on the bond akin to prejudgment interest, and, just like
article 22.13(b), “any reasonable and necessary costs to the county for the
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return of the principal.” Tex. Code Crim. Proc. art. 22.16(a). This same
reduction of liability can also be given to the surety by the court “for other
good cause shown.” Tex. Code Crim. Proc. art. 22.16(b).12 By retaining the
surety’s liability for return costs, both provisions require the return of the
principal even though these provisions do not use the same language in
article 22.13(a)(3) that the court of appeals found was required in article
22.13(a)(5) before requiring the principal’s return.
A surety has been given another avenue for reducing its liability if
the principal is returned to the county of prosecution. However, unlike the
ones discussed above, this one can be utilized any time within two years
after a final judgment is rendered. This mechanism is known as the special
bill of review and is governed by article 22.17 of the Code of Criminal
Procedure.
A surety can file a special bill of review to request, “on equitable
grounds, that the final judgment be reformed and that all or part of the
bond amount be remitted to the surety, after deducting the costs of court,
12 The main difference between the two subsections of article 22.16, other than the
basis for reducing the surety’s liability, is that subsection (a) provides a mandatory
reduction (“the court shall”), while subsection (b)’s reduction is discretionary (“the
court in its discretion may”).
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any reasonable costs to the county for the return of the principal, and the
interest accrued on the bond amount form the date of forfeiture.” Tex.
Code Crim. Proc. art. 22.17(a) (emphasis added). Because this statute does
not specify the equitable grounds that would justify a reformation of the
judgment, the courts have fashioned several factors for trial courts to
consider. One of these factors is whether the surety participated in the re-
arrest of the principal. Another factor is the cost and inconvenience to the
State in regaining custody of the principal. McKenna v. State, 247 S.W.3d
716, 719 (Tex. Crim. App. 2008); Gramercy Insurance Co. v. State, 834 S.W.2d
379, 382 (Tex. App.−San Antonio 1992, no pet.)
Thus, the question under article 22.17 is not if the principal returned
to the county of prosecution, but whether the surety helped get the
principal arrested and how much it cost the State to return the principal to
the county of prosecution. Since the surety remains liable for return costs
under both article 22.17 and article 22.13(a)(5), the principal’s return to the
county of prosecution is an element of the incarceration exoneration just as
it is an element of an equitable special bill of review.
Thus, in order to avoid summary judgment, Mr. Benson was required
to raise a fact issue on Mr. Whipple’s incarceration within 180 days of his
-17-
failure to appear and Mr. Whipple’s return to Travis County. He failed to
meet this burden because he did not present any evidence that Mr.
Whipple was ever returned to Travis County. Thus, summary judgment
was proper.
PRAYER FOR RELIEF
Accordingly, the State of Texas respectfully requests that this Court
grant this petition, reverse the decision of the Austin Court of Appeals, and
affirm the judgment of the trial court.
Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
By: /s/ Tim Labadie
Assistant Travis County Attorney
State Bar No. 11784853
P.O. Box 1748
Austin, Texas 78767
(512) 854-5864
(512) 854-9316 (fax)
tim.labadie@traviscountytx.gov
Attorneys for the State of Texas, Petitioner
-18-
CERTIFICATE OF COMPLIANCE
By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby
certify that the foregoing Petition for Discretionary Review contains 3,412
words according to the word count of the computer program used to
prepare this document and is compliant as to form pursuant to Tex. R.
App. P. 9.4.
/s/ Tim Labadie
CERTIFICATE OF SERVICE
I hereby certify that on September 25, 2015, and in accordance with
Texas Rule of Appellate Procedure 9.5, a true and correct copy of the
foregoing was emailed to Mr. Tom Benson at tomrbenson@gmail.com.
/s/ Tim Labadie
-19-
APPENDIX
A. Benson v. State,
No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
B. Safety National Casualty Corp. v State,
273 S.W.3d 157 (Tex. Crim. App. 2008)
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
Tom Benson, Appellant v. The State of Texas, Appellee
NO. 03-15-00121-CR
COURT OF APPEALS OF TEXAS, THIRD DISTRICT,
AUSTIN
2015 Tex. App. LEXIS 9238
August 31, 2015, Filed
NOTICE: PUBLISH. This is an appeal from a final
judgment in a bond-forfeiture suit. Roy
PRIOR HISTORY: [*1] FROM Whipple, the principal, was charged
THE COUNTY COURT AT LAW NO. with a misdemeanor offense in Travis
7 OF TRAVIS COUNTY. NO. C-1-CV- County. Appellant Tom Benson, the
14-002294, HONORABLE TODD T. surety, filed a bond conditioned on
WONG, JUDGE PRESIDING. Whipple's subsequent appearance.
Whipple later failed to appear in court as
DISPOSITION: Reversed and required. Consequently, the trial court
Remanded. issued a judgment nisi and declared the
bond forfeited. See Tex. Code Crim.
COUNSEL: For Appellee: Mr. Tim Proc. art. 22.02.
Labadie, Assistant County Attorney,
Austin, TX. The State later filed a motion for
summary judgment contending that it
For Appellant: Mr. Tom Benson, Dallas, had established every element of its
TX. bond-forfeiture claim as a matter of law
and asked the trial court to finalize the
JUDGES: Before Chief Justice Rose, judgment. In response, Benson raised
Justices Goodwin and Field. the affirmative defense provided by
Texas Code of Criminal Procedure
OPINION BY: Scott K. Field article 22.13(a)(5)(A), which states:
OPINION The following causes, and
no other, will exonerate the
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
defendant and his sureties, if Although bond-forfeiture
any, from liability upon the proceedings are criminal cases, appellate
forfeiture taken: review of bond-forfeiture proceedings is
The incarceration of the governed by the same rules as civil suits.
principal in any jurisdiction in See id. art. 44.44; Alvarez v. State, 861
the United States: S.W.2d 878, 881 (Tex. Crim. App. 1992)
(per curiam); Mendez v. State, No. 03-
in the case of a 12-00201-CV, 2013 Tex. App. LEXIS
misdemeanor, at the time of 13402, 2013 WL 5936624, at *1 n.1
or not later than the 180th day (Tex. App.--Austin Oct. 31, 2013, no
after the date of the principal's pet.) (mem. op.). The appellate court
failure [*2] to appear in reviews a summary judgment de novo
court. and it takes as true all evidence
favorable to the nonmoving party.
Valence Operating Co. v. Dorsett, 164
Id. art. 22.13(a)(5)(A). Benson presented S.W.3d 656, 661 (Tex. 2005). When
evidence that Whipple had been moving for summary judgment in a
incarcerated in Las Vegas, Nevada, bond-forfeiture case, the State has the
within 180 days of his failure to appear burden of establishing that there is no
in Travis County.1 genuine issue of material fact as to any
[*3] of the essential elements of the
1 Specifically, Benson produced a State's cause of action and that it is
"Custody Letter" from the Las entitled to judgment as a matter of law.
Vegas Metropolitan Police Alvarez, 861 S.W.2d at 880. The
Department confirming that elements of the State's cause of action
Whipple had been incarcerated. are the following: (1) there was a valid
The trial court granted the State's bond; (2) the defendant's name was
motion for summary judgment, and this distinctly called at the courthouse door;
appeal followed. In his sole point of and (3) the defendant failed to appear
error, Benson argues that the trial court within a reasonable time of that call. See
erred by granting the State's motion for id. at 881 (construing Tex. Code Crim.
summary judgment because he raised a Proc. art. 22.02). The burden of proof
genuine issue of material fact with on the second and third elements is
respect to each element of his satisfied by the judgment nisi. Id. Once
affirmative defense. We agree with the State establishes through the bond
Benson and will reverse. and the judgment nisi that there are no
genuine issues of material fact, the
STANDARD OF REVIEW burden shifts to the defendant to raise a
fact issue on the affirmative defense of
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
exoneration. Hill v. State, 955 S.W.2d bond forfeiture by producing evidence
96, 100 (Tex. Crim. App. 1997). A party of the bail bond and judgment nisi. See
seeking to avoid summary judgment by Alvarez, 861 S.W.2d at 880-81 ("The
virtue of an affirmative defense bears the essential elements of the State's cause of
burden of raising a material issue of fact action in a bond forfeiture proceeding
on each element of that defense. See id. are the bond and the judicial declaration
at 101 (citing Brownlee v. Brownlee, of the forfeiture of the bond, which is
665 S.W.2d 111, 112 (Tex. 1984)). the judgment nisi."). However, Benson
This dispute requires us to interpret contends that the trial court erred in
Texas Code of Criminal Procedure granting summary judgment because he
article 22.13. The meaning of a statute is presented evidence sufficient to raise a
a legal question, which we review de fact issue as to each of the elements of
novo. Entergy Gulf States, Inc. v. the affirmative defense provided by
Summers, 282 S.W.3d 433, 437 (Tex. Texas Code of Criminal Procedure
2009). When construing a statute, our article 22.13(a)(5)(A). According to
primary objective is to ascertain and Benson, this defense requires four
give effect to the legislature's intent. elements: The principal, (1) who is
First Am. Title Ins. Co. v. Combs, 258 charged with a misdemeanor, (2) is
S.W.3d 627, 631-32 (Tex. 2008). In incarcerated (3) in any jurisdiction in the
determining legislative intent, we first United States (4) at the time of or not
consider the plain language of the later than the 180th day after the date of
statute. General Motors Corp. v. Bray, the principal's failure to appear in court.
243 S.W.3d 678, 685 (Tex. App.--Austin [*5] Benson asserts that he has raised a
2007, no pet.). When statutory [*4] text fact issue as to each of these four
is clear, it is determinative of legislative elements because he presented evidence
intent, unless enforcing the plain that Whipple was charged with a
meaning of the statute's words would misdemeanor in Travis County and was
produce an absurd result. Summers, 282 later incarcerated in Las Vegas within
S.W.3d at 437. Only when the statutory 180 days from the date he failed to
text is ambiguous do we "'resort to rules appear in court.
of construction or extrinsic aids.'" Id. In response, the State does not
(quoting In re Estate of Nash, 220 contend that Benson failed to raise a fact
S.W.3d 914, 917 (Tex. 2007)). issue on the four elements of his article
22.13(a)(5) defense as identified by
DISCUSSION Benson. Instead, it argues that article
In arguing that the trial court erred in 22.13(b) adds a required element to
granting summary judgment on the Benson's defense--that the principal be
State's claim, Benson admits that the returned to the county of prosecution
State presented a prima facie case for before the surety can be exonerated from
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
liability. Specifically, the State points to conclude that the requirements of
out that article 22.13(b) provides: subsection (b) are not intended to be
included as elements of the cause of
A surety exonerated under exoneration under article 22.13(a)(5).
Subdivision 5, Subsection (a), Article 22.13(a) lists five exclusive
remains obligated to pay costs means of exoneration from bond
of court, any reasonable and forfeiture. See id. art. 22.13(a) ("The
necessary costs incurred by a following causes, and no other, will
county to secure the return of exonerate the defendant and his sureties,
the principal, and interest if any, from liability upon the forfeiture
accrued on the bond amount taken."). Only one of these five causes--
from the date of the judgment article 22.13(a)(3)--explicitly makes the
nisi to the date of the principal's return a requirement. See id.
principal's incarceration. art. 22.13(a)(3) (allowing for the
surety's exoneration if principal's failure
to appear in court was because of "some
Tex. Code Crim. Proc. art. 22.13(b). The uncontrollable circumstance" but only if
State further argues that Benson did not "such principal appear before final
raise an issue of fact concerning this judgment on the bond to answer the
element of his defense under article accusation against him, or show
22.13(a). sufficient cause for not so appearing"). If
Because the State has not disputed the legislature had intended return of
the evidence supporting the other [*7] the principal to be an element of
elements of Benson's defense, and the defense that subsection (a)(5)(A)
because Benson has not [*6] alleged provides, it could have included it in that
that he returned Whipple to Travis subsection, as well. It certainly knew
County, our resolution of this appeal how to create such a requirement, as
turns on a single question of statutory evidenced by article 22.13(a)(3), but
construction: whether article chose not to do so here. See TGS-
22.13(a)(5), read in conjunction with NOPEC Geophysical Co. v. Combs, 340
article 22.13(b), requires that the S.W.3d 432, 439 (Tex. 2011) ("We
principal be returned to the county of presume that the Legislature chooses a
prosecution in order for the defendant statute's language with care, including
and surety to be exonerated from each word chosen for a purpose, while
liability upon the forfeited bond. This purposefully omitting words not
appears to be an issue of first impression chosen."); Riverside Nat'l Bank v. Lewis,
in Texas. 603 S.W.2d 169, 175 (Tex. 1980)
(explaining that because legislature
The plain language of article knew how to include terms within
22.13(a) and article 22.13(b) compels us
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
statutory definition and did not do so, contains very similar language,
statutory definition did not include terms does not require the principal's
"in light of [the term's] contemporaneous return in order for the surety to be
inclusion of the same terms in a separate relieved from liability before the
provision"). bond is forfeited. Article 17.16
Rather than adding a requirement to provides that "[a] surety may
exoneration under article 22.13(a)(5), before forfeiture relieve the surety
article 22.13(b) assumes that of the surety's undertaking by . . .
exoneration has already occurred. delivering to the sheriff of the
Subsection (b) begins by stating that "a county in which the prosecution is
surety exonerated under Subdivision 5, pending and to the office of the
Subsection (a)" remains responsible for prosecuting attorney an affidavit
court costs, reimbursement of the costs stating that the accused is
incurred by the county to secure return incarcerated in federal custody, in
of the principal, and interest on the bond the custody of any state, or in any
amount. Tex. Code Crim. Proc. art. county of this state." Tex. Code
22.13(b). This language does not make Crim. Proc. art. 17.16(a)(2). The
exoneration conditional on payment of article also provides that, "[f]or the
these amounts; instead, it assumes purposes of Subsection (a)(2) of
exoneration and adds these amounts as this article, the bond is [*9]
further obligations of the surety once discharged and the surety is
exoneration [*8] has occurred. The absolved of liability on the bond on
State appears to take the position that the verification of the incarceration
return of the principal is a condition of the accused." Id. art. 17.16(e).
precedent to exoneration; however, it In other words, there is no
ignores the fact that payment of the requirement that the principal be
county's costs in returning the principal returned to the county of
is but one of three different categories of prosecution before the surety is
costs listed. There is nothing in the relieved of liability under article
language of the statute that remotely 17.16. See Allegheny Cas. Co. v.
suggests the requirement that the surety State, 163 S.W.3d 220, 226 (Tex.
pay costs for return of the principal, by App.--El Paso 2005, no pet.)
itself, somehow becomes an element of ("There is no requirement that the
the cause of exoneration.2 surety notify the trial court, or
anyone else, that the bond has been
2 Our interpretation of article surrendered or to request that a
22.13(b) as not requiring return of detainer or arrest warrant be
the principal is bolstered by the entered so that the principal is
fact that article 17.16, which subject to return to the sending
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
jurisdiction.") (citing Castaneda v. shortly after he failed to appear, securing
State, 138 S.W.3d 304, 308 (Tex. his return to appear is quite easy and
Crim. App. 2003)). does not require the assistance of a
Yet article 17.16 also states, "A bondsman." Id. at 164. This statement
surety is liable for all reasonable underscores the court of criminal
and necessary expenses incurred in appeals's reasoning that the return of the
returning the accused into the principal is certain when he is
custody of the sheriff of the county incarcerated within the United States
in which the prosecution is because the State, and not the surety, has
pending." Tex. Code Crim. Proc. the authority to secure his return. Cf.
art. 17.16(g). This language is Tex. Code Crim. Proc. art. 17.16(c)
almost identical to that of article (providing mechanism by which the
22.13(b) upon which the State State can secure return of the principal).
relies. In article 17.16, the fact that We conclude that Safety National
a surety remains liable for any provides no support for the State's
costs incurred in the return of the interpretation of article 22.13.3
principal to the county of
prosecution does not mean that this 3 Relying on legislative history,
return is a requirement for the the State also argues that article
surety's release from liability. This 22.13 fails to fulfill the primary
language further indicates that the purpose of bail bonds unless it
legislature does not require a surety requires that the principal be
to return the principal before being returned to the county of
released from liability on the bond. prosecution. However, because
article 22.13 is not ambiguous, we
The State argues [*10] that the court need [*11] not address legislative
of criminal appeals opinion in Safety history. See Entergy Gulf States,
National, in which the State challenged Inc. v. Summers, 282 S.W.3d 433,
the constitutionality of articles 437 (Tex. 2009).
22.13(a)(5) and 22.16(a), supports its
construction of article 22.13. See Safety Because we conclude that neither
Nat'l Cas. Corp. v. State, 273 S.W.3d article 22.13(a)(5) nor article 22.13(b)
157 (Tex. Crim. App. 2008). However, requires that the principal be returned to
nothing in Safety National states that the the county of prosecution in order for
principal must have already been the surety to be exonerated from liability
returned in order for the surety to be for a forfeited bond, and because we
exonerated from liability. As the court of further conclude that Benson has raised
criminal appeals explained, "[t]he point a genuine issue of material fact on every
of Article 22.13(a)(5) is that, if the element of his affirmative defense under
defendant is incarcerated when or
Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)
article 22.13(a)(5), we sustain Benson's Scott K. Field, Justice
point of error. Before Chief Justice Rose, Justices
Goodwin and Field
CONCLUSION
Reversed and Remanded
We reverse the trial court's grant of
summary judgment and remand this Filed: August 31, 2015
cause to the trial court for further Publish
proceedings consistent with this opinion.
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
SAFETY NATIONAL CASUALTY CORP., AGENT MANUEL LEYVA D/B/A
ROCKY BAIL BONDS, Appellant V. THE STATE OF TEXAS
NO. PD-0413-07
COURT OF CRIMINAL APPEALS OF TEXAS
273 S.W.3d 157; 2008 Tex. Crim. App. LEXIS 641
May 14, 2008, Delivered
NOTICE: PUBLISH JUDGES: MEYERS, J., delivered the
opinion of the Court, in which KELLER,
SUBSEQUENT HISTORY: Rehearing P.J., and PRICE, WOMACK,
denied by In re Safety Nat'l Cas. Corp., JOHNSON, KEASLER, HERVEY,
2008 Tex. Crim. App. LEXIS 1004 (Tex. HOLCOMB, and COCHRAN, JJ.,
Crim. App., Aug. 20, 2008) joined. COCHRAN, J., filed a
concurring opinion.
PRIOR HISTORY: [**1]
ON APPELLANT'S PETITION FOR OPINION BY: Meyers
DISCRETIONARY REVIEW FROM
THE EIGHTH COURT OF APPEALS OPINION
EL PASO COUNTY. [*158] Appellant, Safety National,
Safety Nat'l Cas. Corp. v. State, 225 sought exoneration from the forfeiture of
S.W.3d 684, 2006 Tex. App. LEXIS a bond due to the incarceration of the
10305 (Tex. App. El Paso, 2006) defendant. See Article 22.13(a)(5) of the
Texas Code of Criminal Procedure. 1
COUNSEL: For APPELLANT: Ken W. The trial court entered a judgment in
Good, Tyler, TX. favor of the State for one half the
amount of the original bond and entered
For STATE: Arne Schonberger, ASST. findings of fact concluding that Article
COUNTY ATTORNEY, El Paso, TX; 22.13 (a)(5) unconstitutionally interferes
Jeffrey L. Van Horn, STATE'S with the trial court's discretion and with
ATTORNEY, Austin, TX. the finality of judgments. 2 Appellant
appealed, and the court of appeals
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
affirmed the judgment of the trial court. felony, at the
Safety National v. State, 225 S.W.3d 684 time of or not
(Tex. App.--El Paso 2006). We granted later than the
review to consider the constitutionality 270th day
of Articles 22.13(a)(5) and 22.16(a). We after the date
hold that the statutes are constitutional of the
and remand the cause to the trial court. principal's
failure to
1 Unless otherwise specified, all appear in
future references to Articles refer court.
to the Texas Code of Criminal
Procedure.
2 The relevant [**2] part of FACTS
Article 22.13 states: Appellant posted a $ 10,000 bond on
(a) The following causes, and behalf of Willie Guerrero, who was
no other, will exonerate the charged [*159] with felony theft and
defendant and his sureties, if any, was due to appear for a hearing on
from liability upon the forfeiture March 25, 2004. When a Safety National
taken: employee learned that Guerrero failed to
appear at the hearing, she located him
5. The incarceration of and informed the court coordinator that
the principal in any Guerrero would appear that afternoon.
jurisdiction in the United Instead, the coordinator told Appellant
States: to bring Guerrero to court the following
morning. Guerrero appeared the
(A) in the following morning and gave the trial
case of a judge several reasons for his failure to
misdemeanor, appear at his scheduled time, including
at the time of the weather, car trouble, and that he had
or not later forgotten. The trial judge was offended
than the 180th by Guerrero's attitude and, [**3] as a
day after the result, entered a judgment nisi forfeiting
date of the the bond and placed Guerrero in
principal's custody. He was later released on a new
failure to bond. At the final hearing on the
appear in judgment nisi, Appellant argued that it
court; or was entitled to exoneration under Code
(B) in the of Criminal Procedure Article
case of a 22.13(a)(5) because Guerrero was
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
incarcerated the day after his failure to allowing defendants to wonder [sic] in at
appear. The court entered a judgment for a time and date of their own choosing."
the State for $ 5,000 plus court costs and
entered findings of fact and conclusions 3 See Article V, § 1 ("The judicial
of law stating that Article 22.13(a)(5) is power of this State shall be vested
unconstitutional. in one Supreme Court, in one Court
The trial court included the following of Criminal Appeals, in Courts of
in its findings of fact and conclusions of Appeals, in District Courts, in
law: Article 22.13(a)(5) affects the County Courts, in Commissioners
timing and the finality of judgments and Courts, in Courts of Justices of the
interferes with the core powers of the Peace, and in such other courts as
court and the administration of justice; may be provided by law. The
the statute hampers the discretion of the Legislature may establish such
court in controlling the time of trials and other courts as it may deem
judgments because "to avoid multiple necessary and prescribe the
post-judgment actions, further tying up jurisdiction and organization
its docket, it would have to wait 9 thereof, and may conform the
months to enter a final judgment" and it jurisdiction of the district and other
places virtual time and amount limits out inferior courts thereto."); Article V,
of the discretion of the court; Article V, § 8 ("District Court jurisdiction
Sections 1 and 8, of the Texas consists [**5] of exclusive,
Constitution 3 vest power over bond appellate, and original jurisdiction
forfeitures in the judicial branch and of all actions, proceedings, and
Article 22.13(a)(5) [**4] interferes with remedies, except in cases where
that power; the stated purpose of a bond exclusive, appellate, or original
is to have an orderly docket by having jurisdiction may be conferred by
defendants appear on time and for this Constitution or other law on
sureties to assist with that-to allow a some other court, tribunal, or
defendant to interfere with the court's administrative body. District Court
docket by not showing up for trial judges shall have the power to
"without forfeiture of any portion of the issue writs necessary to enforce
bond would cause future, similar their jurisdiction.The District Court
behavior by the defendants in this case shall have appellate jurisdiction
and by other Sureties and accused and general supervisory control
persons"; and, taking away "discretion to over the County Commissioners
order payment of all or part of a bond Court, with such exceptions and
vitiates the purpose of a bond and would under such regulations as may be
create havoc with the Court's calendar, prescribed by law.").
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
Appellant appealed, arguing that the attached to either of the others,
trial court's failure to exonerate was except in the instances herein
error and that the legal conclusions expressly permitted."
regarding Article 22.13(a)(5) were Appellant filed a petition for
erroneous. The court of appeals discretionary review asking us to
overruled these arguments and determine whether the court of appeals
considered only Appellant's argument properly found that article 22.16(a) of
that it was entitled to mandatory the Texas Code of Criminal Procedure is
remittitur under Article 22.16(a) because unconstitutional based on a violation of
Guerrero was released on a new bond in the separation-of-powers provision in
[*160] the case. The court of appeals the Texas Constitution. We additionally
held that the current version of Article granted review on our own motion to
22.16(a) violates Article II, section 1, of determine whether article 22.13(a)(5) of
the Texas Constitution 4 because it the Texas Code of Criminal Procedure is
provides for mandatory remittitur at any [**7] unconstitutional based on a
time prior to final judgment if the violation of the separation-of-powers
defendant principal is released on new provision in the Texas Constitution.
bail [**6] in the case or the case for
which bond is given is dismissed. In ARGUMENTS OF THE PARTIES
doing so, the legislature has removed the
trial court's discretion to remit the bond Appellant argues that articles 22.13
in the event new bail is given or the and 22.16 do not order a trial court to
criminal case is dismissed. Safety alter a final judgment and do not tell the
National, 225 S.W.3d 684, 691-92. trial court when it can enter a final
judgment. Rather, Article 22.13 provides
4 Article II, § 1, discusses the affirmative defenses for the surety, and
Division of Powers and states, Article 22.16 sets out the limited
"The powers of the Government of situations wherein the surety may seek
the State of Texas shall be divided remittitur of the bond prior to final
into three distinct departments, judgment. Even after final judgment,
each of which shall be confided to Chapter 22 allows a special procedure
a separate body of magistracy, to under which the surety may seek the
wit: Those which are Legislative to return of a portion of the bond amount.
one; those which are Executive to See Article 22.17. The legislature
another, and those which are amended Chapter 22 in 2003, removing
Judicial to another; and no person, the limitations on the trial court's ability
or collection of persons, being of to enter a final judgment and setting out
one of these departments, shall the situations in which a bondsman is
exercise any power properly entitled to a full remittitur if the request
is made while the court has jurisdiction
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
over the case. The time limits in Article who are on bond and fail to appear or
22.13(a)(5) apply to the surety, not to build more jails to hold those who are
the trial court. They are an expiration not released on bond.
date on the surety's ability to use the The State argues that, through
defense that the principal is incarcerated, Articles 22.13(a)(5) and 22.16, "the
not a mandate telling the state when to Legislature told the Court what
enter a judgment; thus, the time periods judgment it must enter and in so doing
do [**8] not prevent the trial court from has improperly exercised power reserved
entering a final judgment at any time. to the judicial branch of government to
Article 22.16 also does not place time hear controversies and apply discretion
limits or restrictions on a trial court's to determine the amount of the
ability to enter a final judgment. It judgment" and "by requiring a zero
provides for mandatory remittitur prior judgment in all cases, no matter what the
to the entry of the final judgment only in circumstances, (i.e. the amount of the
the limited situation of the principal bond, the reason for missing court and
being released on new bail in the case or the delay caused), the Legislature is
if the case is dismissed, and for improperly usurping a judicial function."
discretionary remittitur for good cause This removes the court's power to
shown. consider facts related to the reason for
The time limits in the statutes simply the failure to appear and to enter a
place the burden on bondsmen to file a judgment based on those facts. Courts
motion for remittitur while the court still are also prevented by Article 22.13(a)(5)
has jurisdiction over the case and do not from entering a judgment for nine
place restrictions on the court's ability to months because there is no guidance for
enter judgment, therefore, the statutes do the court concerning situations wherein
not violate the separation-of-powers a final judgment is given prior to nine
doctrine of the Texas Constitution. months and the defendant is returned
Finally, Appellant argues that the after the judgment but before the nine
legislature has indicated an intent to months have expired. This interferes
reward bondsmen who assist the state in with the court's ability to control its
returning to custody principals who fail docket because the court's judgment
to appear, because the purpose of bail is would not actually be final until 270
to secure the presence of the accused, days [**10] had passed since, even if
not to be a revenue device or to be final judgment were entered, it would be
punitive or to substitute for [*161] a nullified or would have to be reformed if
fine. Without bondsmen, the court the defendant became incarcerated
dockets would be even worse, and the within that time period. The State claims
state would either have to hire more that subsequent appearance should not
officers to seek out defendants [**9] exonerate a forfeiture because that
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
would allow defendants to keep missing legislature amended Article 22.16 in
hearings until there are no witnesses or 2003 and moved the section that
evidence against him, and therefore, addressed the principal's incarceration to
there should be a penalty for failure to Article 22.13. In Armadillo Bail Bonds
appear at the designated time. Complete v. State 802 S.W.2d 237
remission of the forfeiture would mean (Tex.Cr.App.,1990), State v. Matyastik,
that the defendant is not really bound to 811 S.W.2d 102 (Tex. Crim. App. 1991),
appear and can create continuances at and Lyles, we held that the former
will. Because the court has the discretion statute was unconstitutional.
to set the amount of the bail, and the Considering the former version of
purpose of a bond is to assure the Article 22.16, which placed time
fulfillment of an obligation to appear in restrictions upon when a final judgment
court and to pay a penalty if that could be entered, 5 Armadillo held that
obligation is not fulfilled, the State the restrictions [*162] on the court's
asserts that it violates the separation-of- right to determine when to decide a case
powers doctrine for the Legislature to violated the separation-of-powers
make the bond unenforceable through provision of the Texas Constitution. We
forced exoneration and for the surety to stated, "We have held repeatedly that the
have the same risk whether the court sets separation of powers provision may be
a high or low bond. As such, the violated in either of two ways. First, it
Legislature has made failure to appear [**12] is violated when one branch of
an offense without a penalty, which government assumes, or is delegated, to
interferes with the orderly processes of whatever degree, a power that is more
the courts. The State points out that, in 'properly attached' to another branch.
[**11] Lyles v. State, 850 S.W.2d 497, The provision is also violated when one
501 (Tex. Crim. App. 1993), this Court branch unduly interferes with another
said that the old statute requiring branch so that the other branch cannot
mandatory remittitur at any time prior to effectively exercise its constitutionally
final judgment removed a trial court's assigned powers." Armadillo, 802
discretion. Under the same reasoning, S.W.2d at 239 (internal citations
forcing a court to enter a zero judgment omitted) (emphasis in original). We
against a bond also violates separation of explained that the judicial branch has the
powers. power to hear evidence, decide issues of
fact, decide questions of law, enter a
CASE LAW final judgment on the facts and the law,
The former version of Article 22.16 and execute the final judgment or
encompassed both the issues of the sentence, and the Legislature has
principal's incarceration and the authority over judicial administration, as
principal's release on new bail. The long as it does not infringe upon the
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
substantive power of the judicial branch. jurisdiction and the
Id. at 239-240. In Matyastik, we incarceration is verified
extended our holding in Armadillo, as provided by
eliminating the time restrictions in Subsection (b) of this
Article 22.16(c) and determining that article;
remittitur may occur anytime between (3) the principal is
forfeiture and the entry of a final released on new bail in
judgment. Matyastik, 811 S.W.2d at 104. the case;
We considered this issue again in Lyles
v. State and held that the mandatory (4) the principal is
remittitur provisions of Article 22.16 are deceased; or
void, but because Article 22.16(d) (5) the case for which
allows the trial court to [**13] remit all bond was given is
or part of the bond at the court's dismissed.
discretion prior to the entry of a final
judgment, that subsection does not (b) For the purposes of Subsection
violate the separation-of-powers. 850 (a)(2) of this article, a surety may
S.W.2d at 501. request confirmation of the
incarceration of his principal by
5 Former Article 22.16 stated: written request to the law
(a) After forfeiture of a bond enforcement agency of the county
and before the expiration of the where prosecution is pending. A
time limits set by Subsection (c) of law enforcement agency [**14] in
this article, the court shall, on this state that receives a request for
written motion, remit to the surety verification shall notify the court in
the amount of the bond after which prosecution is pending and
deducting the costs of court, any the surety whether or not the
reasonable costs to the county for principal is or has been
the return of the principal, and the incarcerated in another jurisdiction
interest accrued on the bond and the date of the incarceration.
amount as provided by Subsection (c) A final judgment may be
(e) of this article if: entered against a bond not earlier
than:
(1) the principal is
incarcerated in the (1) nine months after
county in which the the date the forfeiture
prosecution is pending; was entered, if the
(2) the principal is offense for which the
incarcerated in another
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
bond was given is a ultimately appearing in [*163] court
misdemeanor; or because bondsmen would have a
(2) 18 months after financial incentive to produce the
the date the forfeiture principal many weeks after he or she
was entered, if the originally failed to appear in court . . .
offense for which the [and] would give bondsmen consistency
bond was given is a for principals who were incarcerated,
felony. while allowing a judge to adjust the time
period as needed in a particular case."
(d) After the expiration of the time SENATE COMM. ON CRIMINAL
limits set by Subsection (c) of this JURISPRUDENCE, BILL ANALYSIS,
article and before the entry of a Tex. S.B. 1336, 78th Leg., R.S. (2003).
final judgment against the bond, As we stated in State v. Sellers, 790
the court in its discretion may remit S.W.2d 316, 321 (Tex. Crim. App. 1990),
to the surety all or part of the a judgment nisi alone does not authorize
amount of the bond after deducting recovery of a bond amount by the State.
the costs of court, any reasonable A judgment nisi is a provisional
costs to the county for the return of judgment that is not final or absolute,
the principal, and the interest but may become final. See Article 22.14.
accrued on the bond amount as Nisi means "unless," so a judgment nisi
provided by Subsection (e) of this is valid unless a party shows cause why
article. it should be withdrawn. In the case
(e) For the purposes of this before us, Appellant argues that there
article, interest accrues on the bond are two reasons that the judgment should
amount from the date of forfeiture be withdrawn. First, the [**16]
in the same manner and at the same defendant was incarcerated the day after
rate as provided for the accrual of his initial failure to appear, which, under
prejudgment interest in civil cases. Article 22.13(a)(5), triggers exoneration
from the forfeiture of the bond. Second,
ANALYSIS the defendant was released on new bond
in the same case after he was arrested on
In discussing [**15] the reasons for the warrant resulting from the judgment
the 2003 amendments to Articles 22.13 nisi, which is a reason for remittitur
and 22.16, the Legislature stated that, prior to final judgment under Article
"the state is more interested in having 22.16 (a).
the defendant appear than in receiving
forfeited bond money. Setting time The State reads Article 22.13(a)(5) to
limits on when bonds would be forfeited mean that the court cannot enter a final
would result in more defendants judgment for nine months because then
it would have "multiple post-judgment
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
actions" if the defendant returned after has been dismissed. It makes sense that
final judgment but within nine months when a new bond is issued in a case, the
after his failure to appear. However, old bond should be remitted; this does
Article 22.13 does not say that the trial not mean that a defendant can be on
court must wait until the time in bond somewhere else for some other
subsection (a)(5) lapses to enter a final case and be entitled to full remittitur.
judgment. The statute does not prohibit Both Articles 22.13 and 22.16 require
the entry of a judgment or dictate when remittitur only in specific, limited
the judgment must be entered. In fact, situations--situations in which the return
Article 22.13 says nothing about the of the defendant is certain (because the
entry of a final judgment--it simply defendant [**18] is incarcerated
provides the surety with a defense if the elsewhere), the return is secured by
defendant is incarcerated within nine another bond in the same case, or the
months after he fails to appear. If that return is unnecessary (because the case
term ends before the court enters a final has been dismissed). 6
judgment on the bond, under Article
22.13, the court must remit the amount 6 We note that there are other
of [**17] the bond. situations in the Code of Criminal
The State also implies that Article Procedure in which the legislature
22.13(a)(5) is triggered by the has limited the circumstances
defendant's incarceration, whether or not under which courts may provide a
he is returned, and that he will be requested remedy. For example, in
exonerated without ever appearing in Articles 11.07, § 4 and 11.071, § 5,
court, stating that "Article 22.13(a)(5) the legislature tells us under what
requires a zero judgment regardless of limited conditions we may consider
the crime for which the defendant is a subsequent application for writ of
arrested and without the actual return of habeas corpus.
the Defendant-Principal to the County of [*164] The point of Article
his prosecution." (Emphasis in 22.13(a)(5) is that, if the defendant is
Respondent's Brief on the Merits). This incarcerated when or shortly after he
is simply incorrect. As specifically failed to appear, securing his return to
stated in Article 22.13(b), a surety appear is quite easy and does not require
exonerated under subsection (a)(5) the assistance of a bondsman. Because
remains obligated to pay costs incurred the county would incur the cost to
by a county to secure the return of the transfer the defendant from another
principal. Similarly, the court must remit jurisdiction, Article 22.13(b) makes the
the amount of the bond under Article surety liable for any costs incurred by
22.16 if the defendant has been given the county to secure the return of the
new bond in the same case or the case defendant. But the statute does not
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
require a court to wait nine months can require a cash-only bond in lieu of a
before entering a final judgment, and surety bond. See Article 23.05(a). And
thus, does not interfere with a court's bail is not intended to be punitive or to
timing or finality of judgments. In this be a revenue device. Bail bonding is a
case, Guerrero was returned the day business; therefore, having to pay court
after his failure to appear and was in costs and interest for the time during
court prior [**19] to the forfeiture of which a defendant fails to appear is
the bond. He was placed in custody at incentive for the bondsman to secure the
the same time the court entered the attendance of the defendant at his
judgment nisi forfeiting the bond. And scheduled hearing. The surety does not
Appellant requested remittitur under have the same risk when the court sets a
Article 22.13 prior to the entry of final high bail as it has when the court sets a
judgment. Therefore, the State's low one, because a high bond has higher
hypothetical regarding Article 22.13 interest for the time it takes the surety to
forcing the trial court to wait nine return the defendant.
months before entering judgment does
not apply to this situation. CONCLUSION
We disagree with the State's Articles 22.13 and 22.16 do not
argument that there is no guidance for interfere with the trial court's ability to
the court concerning situations wherein enter final judgment, nor do they dictate
a final judgment is given prior to nine the time frame within which a trial court
months and the defendant is returned may enter a final judgment. The statutes
after the judgment but before the nine do not violate the separation-of-powers
months have expired. Article 22.17 doctrine and thus are not
specifically allows for a special bill of unconstitutional. The decision of the
review up to two years after a final court of appeals is reversed, and the
judgment has been entered, which may cause is remanded to the trial court.
include a request that all or part of the Meyers, J.
forfeited bond be returned. The State is
also incorrect that complete remission of Delivered: May 14, 2008
the forfeiture would mean that the Publish
defendant is not really bound to appear
and can create continuances at will and CONCUR BY: COCHRAN
that the Legislature has made failure to
appear an offense without a penalty. CONCUR
There are penalties, such as contempt
COCHRAN, J., filed a concurring
and additional criminal charges, that can
opinion.
be pursued to punish a defendant for
failure [**20] to appear, or the court
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
OPINION notes, "Bail bonding is a business[.]" 1
The State discusses several valid Indeed it is. To the extent that the
reasons why Article 22.13, dealing with interests of the bail bond business and
the exoneration of a bail bond, may the needs of the criminal justice system
[**21] be a counterproductive statute are not on the same track, local and state
that ties the hands of judges and thwarts governments are free to make
the purpose of having a surety in the first appropriate adjustments. Courts do not
place. Nonetheless, I agree with the decide the wisdom of such laws, they
majority that these deficits do not rise to decide only their constitutionality.
the level of an unconstitutional [*165]
violation of the separation-of-powers 1 Majority Op. at 13.
doctrine. These are matters that are best I therefore join the majority opinion.
left to the Legislature and to local Filed: May 14, 2008
governments that may increase their
reliance upon non-profit Pretrial Publish
Services programs. The majority aptly