ACCEPTED
03-15-00121-CR
5475449
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/29/2015 3:22:17 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00121-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN, TEXAS 5/29/2015 3:22:17 PM
________________________________________________
JEFFREY D. KYLE
Clerk
TOM BENSON, Appellant
v.
THE STATE OF TEXAS, Appellee
________________________________________________
Appealed from the County Court at Law No. 7,
Travis County, Texas, Cause No. C-1-CV-14-002294
________________________________________________
APPELLEE’S BRIEF
________________________________________________
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
Attorney for the State of Texas, Appellee
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS ..........................................................................................i
INDEX OF AUTHORITIES ................................................................................... ii
I. STATEMENT REGARDING ORAL ARGUMENT ................................. 1
II. STATEMENT OF FACTS............................................................................. 2
III. SUMMARY OF THE ARGUMENT ........................................................... 4
IV. ARGUMENT .................................................................................................5
A. Standard of Review and the Applicable Law ..................................... 5
B. Tom Benson did not present any evidence that Brian
Whipple returned to Travis County after his failure to appear ....... 6
IV. PRAYER .......................................................................................................14
CERTIFICATE OF SERVICE ...............................................................................15
i
INDEX OF AUTHORITIES
Page
CASES
Armadillo Bail Bonds. v State,
802 S.W.2d 237 (Tex. Crim. App. 1990 ....................................................... 8
Burns v. State,
861 S.W.2d 878 (Tex. Crim. App. 1993) .................................................5, 6
Ex parte Reis,
117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) ................................................. 9
Ex parte Vasquez,
558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................................... 9
Gramercy Insurance Co. v State,
834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) ...................10, 13
Grimes County Bail Board v. Ellen,
267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) .10
KPMG Peat Marwick v. Harrison County Housing Fin. Corp.,
988 S.W.2d 746 (Tex. 1999)...........................................................................6
Kubosh v. State,
177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)............ 5
Lyles v State,
850 S.W.2d 497 (Tex. Crim. App. 1993) .....................................................8
McKenna v State,
247 S.W.3d 716 (Tex. Crim. App. 2008) ...................................................13
ii
Mendez v. State,
No. 03-12-00200-CV, 2013 Tex. App. LEXIS 13278, 2013 WL 5914142,
(Tex. App. –Austin Oct. 25, 2013, no pet.)(mem.op) ...............................5
Nixon v. Mr. Property Management, Co.,
690 S.W.2d 546 (Tex. 1985)...........................................................................5
Safety National Casualty Corp. v State,
273 S.W.3d 157 (Tex. Crim. App. 2008) .............................................7, 8, 9
State v Matyastik,
811 S.W.2d 102 (Tex. Crim. App. 1991) .....................................................8
STATUTES, RULES AND OTHER
TEX. CODE CRIM. PROC. art. 17.01 ........................................................................... 9
TEX. CODE CRIM. PROC. art. 17.02 ........................................................................... 9
TEX. CODE CRIM. PROC. art. 17.08 ........................................................................... 9
TEX. CODE CRIM. PROC. art. 22.10 ........................................................................... 5
TEX. CODE CRIM. PROC. art. 22.13 .....................................................................8, 11
TEX. CODE CRIM. PROC. art. 22.13(a)(1)................................................................11
TEX. CODE CRIM. PROC. art. 22.13(a)(2)................................................................11
TEX. CODE CRIM. PROC. art. 22.13(a)(3)................................................................11
TEX. CODE CRIM. PROC. art. 22.13(a)(4)................................................................11
TEX. CODE CRIM. PROC. art. 22.13(a)(5)..................................................8, 9, 10, 13
TEX. CODE CRIM. PROC. art. 22.13(a)(5)(A) ................................................3, 4, 6, 7
iii
TEX. CODE CRIM. PROC. art. 22.13(b) ..................................................4, 7, 9, 10, 11
TEX. CODE CRIM. PROC. art. 22.16 .....................................................................8, 12
TEX. CODE CRIM. PROC. art. 22.16(a) ....................................................................11
TEX. CODE CRIM. PROC. art. 22.16(b) ....................................................................12
TEX. CODE CRIM. PROC. art. 22.17 ...................................................................12, 13
TEX. CODE CRIM. PROC. art. 22.17(a) ....................................................................12
TEX. CODE CRIM. PROC. art. 44.42 ........................................................................... 5
TEX. CODE CRIM. PROC. art. 44.44 ........................................................................... 5
TEX. R. CIV. P. 166a(c) ..............................................................................................5
SENATE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS,
Tex. S.B. 1336, 78th Leg., R.S. (2003) ..................................................................... 9
iv
NO. 03-15-00121-CR
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN, TEXAS
________________________________________________
TOM BENSON, Appellant
v.
THE STATE OF TEXAS, Appellee
________________________________________________
Appealed from the County Court at Law No. 7,
Travis County, Texas, Cause No. C-1-CV-14-002294
________________________________________________
APPELLEE’S BRIEF
________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
The State of Texas, Appellee, files this brief in support of the trial
court’s judgment and would respectfully show the Court the following.
I. STATEMENT REGARDING ORAL ARGUMENT
The State of Texas requests oral argument because the issue
presented by this case (i.e., what are the elements of a surety’s defense
-1-
based on the incarceration of the principal) is extremely important to bond
forfeiture jurisprudence in Texas and has yet to be directly considered by
any Texas court. The courts are not frequently called upon to address
issues considering bond forfeitures because the State does not have the
right to appeal adverse judgments in bond forfeiture suits. 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.
II. STATEMENT OF FACTS
On August 29, 2013, Brian 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 when this case was
1 CR 4,5.
2 CR 4,5.
-2-
called for trial.3 Thereafter, Mr. Whipple’s name was called distinctly at
the door of the courthouse and he was given a reasonable time after which
to appear. 4 Brian Whipple, however, failed to appear and the bail bond
was forfeited.5
In answering the bond forfeiture suit, Tom Benson did not deny the
making and the forfeiture of the bond. Instead, he asserted that Mr.
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. 6 Mr. Benson did not allege that Mr. Whipple was ever
returned to Travis County.
On December 4, 2014, Plaintiff’s Motion for Summary Judgment was
filed and set for hearing on January 21, 2015. 7 In response, Mr. Benson
asked the court to deny the motion, claiming he had raised a fact issue on
each element of his defense based on article 22.13(a)(5)(A) of the Texas
Code of Criminal Procedure. Mr. Benson asserted that these elements are
3 CR 4.
4 CR 4.
5 CR 4.
6 CR 14.
7 CR 9-13.
-3-
incarceration of the principal within any jurisdiction in the United States
within 180 days from the failure to appear on a misdemeanor charge.8
The trial court granted the State’s motion and rendered judgment
against Brian Whipple and Tom Benson for the full amount of the bond
($5,000.00) plus court costs.9
III. SUMMARY OF THE ARGUMENT
The elements of the exoneration defense under article 22.13(a)(5)(A)
are not, as Tom Benson asserts, simply that a person charged with a
misdemeanor is incarcerated in any jurisdiction in the United States within
180 days after the principal’s failure to appear. Another element, found in
article 22.13(b), is that the principal must return to the county in which the
misdemeanor case is pending. Since Mr. Benson did not provide the trial
court with any evidence that Mr. Whipple returned to Travis County after
his failure to appear, the trial court was right to grant summary judgment
for the State.
8 CR 16-23.
9 CR 24-25.
-4-
IV. ARGUMENT
A. Standard of Review and the Applicable Law
Bond forfeiture suits, while criminal in nature, are subject to the rules
of civil procedure and the rules of civil appellate procedure. Tex. Code
Crim. Proc. articles 22.10, 44.42 and 44.44. Kubosh v. State, 177 S.W.3d 156,
160 (Tex. App.−Houston [1st Dist.] 2005, pet. ref’d); Mendez v. State, No. 03-
12-00200-CV, 2013 Tex. App. LEXIS 13278, *3, 2013 WL 5914142, *2 (Tex.
App.−Austin Oct. 25, 2013, no pet.) (mem. op.). The standard for reviewing
a traditional summary judgment, which is what the State obtained in this
case, is whether the movant carried its burden of showing there is no
genuine issue of material fact and judgment should be granted as a matter
of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690
S.W.2d 546, 548-49 (Tex. 1985).
In order to be entitled to a forfeiture of a bail bond, the State has the
burden to show that (1) a valid bond was executed by the principal and
surety; (2) the principal’s name was distinctly called at the courthouse
door; and (3) the principal failed to appear within a reasonable time of that
call. Burns v. State, 861 S.W.2d 878, 888 (Tex. Crim. App. 1993). The bond
establishes the first element of the State’s bond forfeiture suit and the
-5-
Judgment Nisi is prima facie proof of the second and third elements. Burns
v. State, 861 S.W.2d at 887. Attached to the State’s motion were certified
copies of the bond and the Judgment Nisi. Thus, the State established as a
matter of law that there are no genuine issues of material fact as to any of
the elements of the State’s cause of action, as Mr. Benson admits. 10
Thus, to avoid a summary judgment, Mr. Benson was required to
present summary judgment evidence sufficient to raise an issue of fact on
each element of his defense. KPMG Peat Marwick v. Harrison County Housing
Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999).
B. Tom Benson did not present any evidence that Brian Whipple
returned to Travis County after his failure to appear
To determine whether Tom Benson met his burden to defeat the
State’s summary judgment, the Court must first determine what are the
elements of his defense. Tom Benson pleaded a defense based on article
22.13(a)(5)(A) of the Texas Code of Criminal Procedure, which provides:
(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:
10 Appellant’s Brief at p. 5.
-6-
(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[.]
Tex. Code Crim. Proc. article 22.13(a)(5)(A).
Mr. Benson argues that the elements of this defense are that Mr.
Whipple was charged with a misdemeanor and that he was incarcerated in
any jurisdiction in the United States within 180 days from his failure to
appear in court. However, there is another element to this defense: the
principal must be returned to the county of prosecution. This element is
found not in article 22.13(a)(5)(A), but in article 22.13(b), which provides:
(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. article 22.13(b) (emphasis added).
When read together, these provisions limit a surety’s liability if the
principle, who is charged with a misdemeanor, is incarcerated within 180
days of his failure to appear and is returned to the county of prosecution.
While no court has directly delineated the elements of this defense,
the Texas Court of Criminal Appeals has provided guidance on this issue
in Safety National Casualty Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App.
-7-
2008). The main issue in Safety National was whether article 22.13(a)(5)
violates the separation of powers provision in the Texas Constitution.11
However, in its attempt to convince the Court that article 22.13(a)(5) can
work an unjust result, the State intimated “that Article 22.13(a)(5) is
triggered by the defendant’s incarceration, whether or not he is returned,
and the he will be exonerated without ever appearing in court[.]”Safety
National Casualty Corp. v. State, 273 S.W.3d at 163. The Court found this
reading of article 22.13(a)(5) “simply incorrect,” because article 22.13(a)(5)
is limited to those situations where the principal’s return to the county of
prosecution is certain. Id.
11 The State argued that article 22.13.(a)(5) is 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
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.
-8-
Also instructive to the determination of the elements of this defense
are the Legislature’s reasons for adding subsections (a)(5) and (b) to article
22.13 in 2003:
. . . 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 at 162-63
(emphasis added).
In these few words, the Legislature encapsulates the role of article
22.13(a)(5) in fulfilling the primary purpose of a bail bond, which is to
ensure that the principal will appear and answer the charges brought
against him or her. 12 This purpose is not abrogated by the principal’s
12 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). 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
-9-
failure to appear; the State would still rather have the principal appear than
collect on a forfeited bond, as the Legislature noted above. 13 Indeed, the
presence of a bail bond encourages 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 principal’s return is, of course, important to the State so that the
criminal case against the principal can be resolved. To help fulfill this
purpose, the Legislature, in articles 22.13(a)(5) and (b), has given the surety
financial incentive to bring the principal back to court after the principal’s
failure to appear – and the quicker the better for the surety. To reward the
surety with very limited liability when the principal is incarcerated but not
returned to the prosecuting county does not fulfill the primary purpose of a
bail bond.
The incarceration exoneration under article 22.13(a)(5) is but one of
several mechanisms available to the surety to minimize its bond forfeiture
liability. Like article 22.13(a)(5), most of these contemplate the return of the
promise by the principal and surety promise that the principal will appear before the
proper court to answer the accusation against him).
13 See also, 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).
-10-
principal to the county of prosecution.14 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). However, 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).
Additionally, 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 return of the principal.” Tex. Code
Crim. Proc. art. 22.16(a). This same reduction of liability can also be given
14 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)).
-11-
to the surety by the court “for other good cause shown.” Tex. Code Crim.
Proc. art. 22.16(b).15 By retaining the surety’s liability for return costs, both
provisions contemplate the return of the principal.
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,
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
15 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”).
-12-
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 did 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
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.
-13-
IV. PRAYER
The State established as a matter of law that Brian Whipple and Tom
Benson made a $5,000.00 appearance bond, which forfeited after Mr.
Whipple failed to appear in the court in which his misdemeanor case is
pending. Tom Benson does not dispute these facts. Instead, he tried to
defeat summary judgment by providing evidence that Brian Whipple was
arrested in Nevada within 180 days of his failure to appear in the Travis
County misdemeanor case. However, this defense is limited to those
situations where the principal is returned to the county of prosecution.
Since Tom Benson did not provide the trial court any evidence that Mr.
Whipple ever returned to Travis County after the bond forfeited, the trial
court correctly rendered summary judgment in favor of the State.
Accordingly, the State of Texas respectfully requests that this Court
affirm the judgment of the trial court.
Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
By: /s/ Tim Labadie
Tim Labadie
Assistant Travis County Attorney
State Bar No. 11784853
-14-
P.O. Box 1748
Austin, Texas 78767
(512) 854-5864
(512) 854-9316 (fax)
tim.labadie@traviscountytx.gov
Attorneys for the State of Texas, Appellee
CERTIFICATE OF COMPLIANCE
By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby
certify that the foregoing Appellee’s Brief contains 3,163 words 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 May 29, 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
-15-
APPENDIX
Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
ARMADILLO BAIL BONDS, Appellant v. THE STATE
OF TEXAS, Appellee
No. 1049-89
COURT OF CRIMINAL APPEALS OF TEXAS
802 S.W.2d 237; 1990 Tex. Crim. App. LEXIS 198
December 5, 1990, Delivered
PRIOR HISTORY: [**1] Petition In this criminal bail bond forfeiture
for Discretionary Review from the Fifth case, we granted Armadillo Bail Bonds'
Court of Appeals; Dallas County. petition for discretionary review,
pursuant to Texas Rule of Appellate
COUNSEL: Attorneys for appellant: G. Procedure 200(c)(4), in order to
P. (Pat) Monks, Houston, Texas, Randy determine whether Article 22.16(c)(2) of
Adler, Dallas, Texas. the Texas Code of Criminal Procedure
violates the separation of powers
Attorneys for State: John Vance, D. A. provision of the Texas Constitution. See
& Alec B. Stevenson, III & Michael J. Tex. Const. art. 2, § 1. Having found the
Watts, Asst. D. A's., Dallas, Texas, statute unconstitutional, we will affirm
Robert Huttash, State's Attorney, Austin, the judgment of the court of appeals.
Texas.
Alejandro de Jesus Carreon, charged
JUDGES: En Banc. Campbell, Judge. in Dallas County with a felony, failed to
Judges Teague & Miller dissent without appear for trial on November 19, 1987.
opinion. Sturns, Judge not participating. On that date the trial court rendered
judgment nisi for the State [**2] and
OPINION BY: CAMPBELL against de Jesus Carreon and his surety,
Armadillo Bail Bonds, jointly and
OPINION severally, in the amount of de Jesus
Carreon's bond. Nine months later, on
[*238] OPINION ON August 15, 1988, at a hearing before the
APPELLANT'S PETITION FOR trial court, Armadillo was given an
DISCRETIONARY REVIEW opportunity to show good cause for de
Jesus Carreon's failure to appear for
Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
trial. No such cause was shown, and the A proper understanding of the issue
judgment of forfeiture was made final presented requires an examination of the
the next day. Armadillo then moved for complete text of Article 22.16(a) and
a new trial on the basis of Tex. Code (c):
Crim. Pro. art. 22.16(c)(2), which (a) After forfeiture of a bond and
provides that "[a] final judgment may be before the expiration of the time limits
entered against a bond not earlier than . . set by Subsection (c) of this article the
. 18 months after the date the forfeiture court shall, on written motion, remit to
was entered, if the offense for which the the surety the amount of the bond after
bond was given is a felony." Armadillo's deducting the costs of court, any
motion for new trial was denied, and the reasonable costs to the county for the
Fifth Court of Appeals affirmed on the return of the principal, and the interest
ground that Article 22.16(c)(2) is invalid accrued on the bond amount . . . if:
under the Texas Constitution's
separation of powers provision. (1) the principal is incarcerated in the
Armadillo Bail Bonds v. State, 772 county in which the prosecution is
S.W.2d 193 (Tex.App. -- Dallas 1989). pending;
In its petition for discretionary (2) the principal is incarcerated in
review, Armadillo contends that Article another jurisdiction and [**4] the
22.16(c)(2) "is a valid enactment of law incarceration is verified . . .;
to regulate the trial court's . . . power to (3) the principal is released on new
grant [a] certain type of relief, a final bail in the case;
judgment." Appellant's [**3] Brief at
(4) the principal is deceased; or
18. Armadillo argues further that the
statute is constitutional because it "does (5) the case for which bond was
not prevent the courts from managing given is dismissed.
their affairs . . .; it only controls the type ***
of relief a court can grant at certain
times." Appellant's Brief at 12. The State (c) A final judgment may be entered
responds that "by ordering trial courts against a bond not earlier than:
not to enter bond forfeiture judgments [*239] (1) nine months after the
until the expiration of . . . eighteen date the forfeiture was entered, if the
months in a felony case, . . ., the offense for which the bond was given is
legislature is usurping a judicial a misdemeanor; or
function. This is certainly violative of (2) 18 months after the date the
[the separation of powers provision] of forfeiture was entered, if the offense for
the Texas Constitution." State's Brief at which the bond was given is a felony.
7.
(Emphasis added.)
Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
It seems probable that Article others, except in the instances herein
22.16(c), enacted in 1987, resulted from expressly permitted.
our decision in Williams v. State, 707 This separation of powers provision
S.W.2d 40 (Tex.Cr.App. 1986). 1 In reflects a belief on the part of those who
Williams we held unconstitutional a drafted and adopted our state
statute that entitled the surety to an constitution that one of the greatest
automatic ninety-five percent remittitur threats to liberty is the accumulation of
if the defendant appeared within two excessive power in a single branch of
years after a final judgment and the government. The provision also has the
surety claimed responsibility for the [**6] incidental effect of promoting
return. We concluded that the automatic effective government by assigning
remittitur provision impermissibly functions to the branches that are best
interfered with judicial power by suited to discharge them. See H. Bruff,
requiring the modification of a final Separation of Powers Under the Texas
judgment. It appears the Legislature has Constitution, 68 Texas L. Rev. 1337,
tried to circumvent the Williams holding 1341 (1990).
by denying the courts the authority to
[**5] render a final judgment for a set We have held repeatedly that the
period of time. separation of powers provision may be
violated in either of two ways. First, it is
1 See Senate Comm. on Crim. violated when one branch of government
Juris., Bill Analysis, Tex. S.B. 185, assumes, or is delegated, to whatever
70th Leg., R.S. (1987) (discussing degree, a power that is more "properly
Williams v. State, 707 S.W.2d 40 attached" to another branch. Ex parte
(Tex.Cr.App. 1986)). Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.
1973). The provision is also violated
Article 2, § 1 of the Texas when one branch unduly interferes with
Constitution provides: another branch so that the other branch
The powers of the Government of the cannot effectively exercise its
State of Texas shall be divided into three constitutionally assigned powers. Rose
distinct departments, each of which shall v. State, 752 S.W.2d 529, 535
be confided to a separate body of (Tex.Cr.App. 1987); Meshell v. State,
magistracy, to wit: Those which are 739 S.W.2d 246, 252 (Tex.Cr.App.
Legislative to one, those which are 1987); see 16 C.J.S. Constitutional Law
Executive to another, and those which § 112 (1984). The undue interference
are Judicial to another; and no person, or test
collection of persons, being of one of takes the middle ground between
these departments, shall exercise any those who would seek rigid
power properly attached to either of the compartmentalization and those who
Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
would find no separation of powers explicitly grants the Legislature ultimate
violation until one branch completely authority over judicial "administration,"
disrupted another branch's ability to Tex. Const. art. 5, § 31; Meshell v. State,
function. The rigid 739 S.W.2d at 255, although this
compartmentalization [**7] theory authority does not permit the Legislature
undermines the efficiency of "to infringe upon the substantive power
government and undervalues the of the Judicial department under the
availability of checks and balances. The guise of establishing 'rules of court,' thus
other extreme looks only for the rendering the separation of powers
completed coup and underestimates the doctrine meaningless." Meshell v. State,
incremental effect of interbranch 739 S.W.2d at 255. Given these
intrusions. constitutional provisions, it is no simple
N. McCabe, Four Faces of State task to determine whether any given
Constitutional Separation of Powers: legislative action that affects the
exercise of judicial power is a violation
Challenges to Speedy Trial and of the separation of powers provision.
Speedy Disposition Provisions, 62
Temple L. Rev. 177, 218 (1989). Helpful to our inquiry in this case, we
believe, is the Montana Supreme Court's
The State argues, and the court of decision in Coate v. Omholt, 203 Mont.
appeals held in effect, that Article 488, 662 P.2d 591 (Mont. 1983). There,
22.16(c)(2) unduly interferes with the the court held unconstitutional, as
courts' exercise of the "judicial" power. violations of the separation of powers
Our inquiry must begin, then, with the principle, two Montana statutes that
nature of this power and the extent to placed time limits on district and
which the Legislature may inject itself supreme court cases and imposed
into this arena. financial sanctions on judges for failure
The Texas Constitution explicitly to comply. Although the facts of Omholt
vests the judicial power of the state in are different from those in the case
the courts. Tex. Const. art. 5, § 1. The before us today, we believe the
core of this judicial power embraces the reasoning of the decision is instructive
power (1) to hear evidence; (2) to decide and sound:
the issues [*240] of fact raised by the . . . We [**9] conclude that, based
pleadings; (3) to decide the relevant on the separation of powers clause of
questions of law; (4) to enter a final our state constitution, the question of
judgment on the facts and the law; and when cases shall be decided and the
(5) to execute the final judgment or manner in which they shall be decided,
sentence. Kelley v. State, 676 S.W.2d is a matter solely for the judicial branch
104, 107 (Tex.Cr.App. 1984). On the of government.
other hand, the constitution [**8]
Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
*** realm of judicial affairs as to dictate to a
By [the separation of powers] judge how he shall judge or how he shall
provision, each branch of government is comport himself in judging or which
made equal, coordinate, and seeks to surround the act of judging with
independent. By this we do not mean hampering conditions clearly offends the
absolute independence because constitutional scheme of the separation
"absolute independence" cannot exist in of powers and will be held invalid."
our form of government. It does mean, The courts have recognized, as the
however, ". . . that the powers properly authors state, that certain judicial
belonging to one department shall not be functions require that the courts alone
exercised by either of the others." With determine how those functions are to be
only one exception ( State ex rel. exercised. Even assuming the right
Emerald People's Util. v. Joseph (Ore. under many state constitutions, and
1982), 292 Or. 357, 640 P.2d 1011), the indeed, the need for the legislature to be
supreme courts of those states called on involved in rule-making where the
to answer the question have declared courts and the legislature have
that the essential nature of a concurrent rule-making power, the
constitutional court encompasses the authors state:
right to determine when a judicial "Grant the necessity for concurrent
decision will be made. jurisdiction in the field of procedure,
These holdings are best summarized immediately another problem presents
in a law review article entitled, itself. Should [**11] there not be some
Legislative Control Over Judicial Rule- realm of judicial administration entirely
Making: A Problem in Constitutional free from legislative supervision? Or
Revision (1958), 107 U. Pa. L. Rev. 1, shall the legislature be permitted to
31-32: dictate to the courts every detail of their
"What the holdings do suggest is that internal regimen: command appellate
there is a third realm of judicial activity, courts to issue written opinions in every
[**10] neither substantive nor adjective case, declare within what time cases
law, a realm of 'proceedings which are shall be heard, [*241] deny to the court
so vital to the efficient functioning of a the power to issue its mandate until a
court as to be beyond legislative power. prescribed period of time after judgment
'This is the area of minimum functional shall have passed? There are spheres of
integrity of the courts, 'what is essential activity so fundamental and so necessary
to the existence, dignity and functions of to a court so inherent in its very nature
the court as a constitutional tribunal and as a court, that to divest it of its absolute
from the very fact that it is a court.' Any command within these spheres is to
statute which moves so far into this make meaningless the very phrase
Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
judicial power." 107 U. Pa. L. Rev. at separation of powers principle
29-30. necessarily contemplates a zone of
662 P.2d at 594 (emphasis in judicial power which must be free of
original; some citations omitted). See legislative interference. 2 The question in
also Sands v. Albert Pike Motor Hotel, each case is whether the legislation in
245 Ark. 755, 434 S.W.2d 288 (Ark. issue is grounded on the Legislature's
1968); Holliman v. State, 175 Ga. 232, own constitutionally assigned power
165 S.E. 11 (Ga. 1932); Waite v. and, if so, whether the legislation
Burgess, 69 Nev. 230, 245 P.2d 994 nevertheless unduly interferes, or [**13]
(Nev. 1952); Schario v. State, 105 Ohio threatens to unduly interfere, with the
St. 535, 138 N.E. 63 (Ohio 1922); Judiciary's effective exercise of its
Complaint Against Grady, 118 Wis. 2d constitutionally assigned power, and we
762, 348 N.W.2d 559 (Wis. 1984) (all so hold.
cases holding legislature may not dictate
to judiciary when [**12] or how cases 2 We should not be understood to
shall be decided). approve the court of appeals'
sweeping statement that "a statute
Article 22.16(c)(2) requires that the which requires the judicial branch
Judiciary refrain from exercising a part to act or refrain from acting within
of its core power for a period of a year a specified time is [always]
and a half. If this requirement is, as unconstitutional as an unwarranted
Armadillo argues, a valid exercise of the encroachment by the legislative
Legislature's power over judicial branch upon the prerogatives and
administration, then, as the court of functions of the judiciary." 772
appeals noted, "nothing prevents the S.W.2d at 196. There are many
legislature from imposing an instances where the Legislature
interminable delay in obtaining final may pass legislation that affects in
judgment." 772 S.W.2d at 197 (emphasis some way how or when judicial
added). In other words, if Article power may be exercised.
22.16(c)(2) is valid, then the Legislature
has the power to render the Judiciary In our view, Article 22.16(c)(2)
impotent with respect to the entry of unduly interferes with the Judiciary's
final judgments. effective exercise of its constitutionally
assigned power. We hold, therefore, that
We adhere to our holdings in Meshell the statute is invalid under Article 2, § 1
and Williams that the Legislature may of the Texas Constitution. The judgment
not unduly interfere with the judicial of the court of appeals is affirmed.
function under the guise of establishing
rules of court. We also agree with the Teague and Miller dissent without an
Omholt court's reasoning that the opinion.
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
JOHN BURNS, Appellant v. THE STATE OF TEXAS,
Appellee
No. 1111-91
COURT OF CRIMINAL APPEALS OF TEXAS
861 S.W.2d 878; 1993 Tex. Crim. App. LEXIS 129
June 23, 1993, Delivered
SUBSEQUENT HISTORY: [**1]
861 S.W.2d 878 at 886. OPINION BY: MILLER
PRIOR HISTORY: Petition for OPINION
Discretionary Review from the
Fourteenth Court of Appeals. [HARRIS [*886] OPINION ON STATE'S
County] MOTION FOR REHEARING
Original Opinion of December 23, This appeal arose from a bond
1992, Reported at: 1992 Tex. Crim. App. forfeiture. The trial judge granted
LEXIS 248. summary judgment in favor of the State,
and the surety, John Burns, appealed. 1
In the court of appeals, appellant raised
COUNSEL: For Appellant: Stanley G. nine points of error which the court
Schneider, Houston, Tx. W. Troy overruled, and the judgment was
McKinney, Houston, Tx. affirmed. Burns v. State, 814 S.W.2d
768 (Tex.App. - Houston [14th Dist.]
For Appellee: John B. Holmes, Jr., D. A. 1991). This Court granted appellant's
& Kathleen A. B. Braddock & Mark A. petition for discretionary review on the
Font, Asst. D. A's., Houston, Tx. Robert two grounds presented therein, to-wit:
Huttash, State's Attorney, Austin, Tx. (1) "whether the court of appeals used
the proper standard of review by failing
JUDGES: En Banc. Miller, Judge, to review the evidence [**2] in the light
McCormick, Presiding Judge & most favorable to appellant[,]" and (2)
Overstreet, Judge, concur in the result "whether a bond may be forfeited due to
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
a principal's failure to appear in court on addresses summary judgment, so we
a certain date absent proof of notice to find it useful to consult decisions from
the principal that he is to appear in court our sister court on this standard. The
on that date when the principal has purpose of the summary judgment rule is
previously been ordered to appear at a to provide a method of summarily
date after the date on which the terminating a case when it clearly
judgment nisi issued." appears that only a question of law is
involved and that no genuine issue of
1 The principal in this cause, fact remains. Gaines v. Hamman, 163
Pedro Alvarez, is not a party to this Tex. 618, 358 S.W.2d 557, 563 (Tex.
appeal. 1962). The issue in a summary judgment
On original submission, we found a proceeding, therefore, is whether there is
substantial material fact regarding notice a genuine issue of fact in the case. Id. at
was presented which defeated summary 562. The party moving for summary
judgment, and we therefore sustained judgment has the burden of showing that
appellant's second ground for review. there is no such fact question and that he
Alvarez & Burns v. State, S.W.2d is entitled [**4] to judgment as a matter
(Tex.Crim.App. No. 1111-91, delivered of law. Nixon v. Mr. Property
December 23, 1992), slip op. at p. 8. 2 In Management Company, Inc, 690 S.W.2d
its motion for rehearing, the State 546, 548 (Tex. 1985). In deciding
presents three reasons why this Court whether there is a disputed material fact
erred in finding a substantial material issue precluding summary judgment, the
[*887] fact was presented which court takes as true the evidence
defeated summary judgment. The State favorable to the non-moving party. Id.
alleges the opinion omits a material fact, at 548-49. Every reasonable inference
omits and improperly recites [**3] the from the evidence must be indulged in
law applicable to summary judgment favor of the non-movant, and any doubts
cases, and improperly applies the law to resolved in its favor. Id. at 549. See also
the facts. Montgomery v. Kennedy, 669 S.W.2d
309 (Tex. 1984); City of Houston v.
2 Finding merit in appellant's Clear Creek Basin Authority, 589
second ground for review, we did S.W.2d 671 (Tex. 1979). Hence, the
not address his first ground for applicable standard of review is to view
review. Id. at p. 9. the evidence in the light most favorable
to the party opposing the summary
In order to address the State's judgment motion. Gaines v. Hamman,
contentions we must first articulate the 358 S.W.2d at 562. 3
appropriate standard of review in a
summary judgment case. Rule 116a of
the Texas Rules of Civil Procedure
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
3 In his first ground for review in shown why the defendant did
his petition, appellant contended not appear.
the court of appeals utilized an
incorrect standard of review and
viewed the evidence in the light It is well-settled that the State's proof in
most favorable to the movant, a bond forfeiture proceeding consists of
rather than the non-movant. Given the bond and the judicial declaration of
our disposition of this motion for the forfeiture of the bond, which is the
rehearing, we express no opinion judgment nisi. Tocher v. State, 517
on the merits of this ground for S.W.2d 299, 301 (Tex.Crim.App. 1975).
review, but only note that this is The judgment nisi is prima facie proof
the proper standard to apply. that the statutory requirements of Art.
[**5] We now review the elements 22.02 have been satisfied. Id. The [**6]
of the State's cause of action in a bond burden then shifts to the defendant to
forfeiture from which this summary affirmatively show otherwise. Id.
judgment action arose. Bond forfeiture, Indeed, "the court will presume that the
although in the nature of a civil judgment nisi was taken in accordance
proceeding, 4 is governed by the Code of with the statutory requirements, unless it
Criminal Procedure. Article 22.02 affirmatively appear otherwise." Id.,
directs the manner of taking a forfeiture citing Thompson v. State, 31 Tex. 166
and provides in pertinent part: (1868). In moving for summary
judgment in an appearance bond
The name of the defendant forfeiture case, the State must therefore
shall be called distinctly at the establish as a matter of law that there are
courthouse door, and if the no genuine issues of material fact as to
defendant does not appear any of the elements of the State's cause
within a reasonable time after of action, which are proved by the bond
such call is made, judgment and the judgment nisi. Deckard v. State,
shall be entered that the State 615 S.W.2d 717, 718 (Tex.Crim.App.
of Texas recover of the 1981) (panel opinion).
defendant the amount of
money in which he is bound, 4 See Art. 22.10, V.A.C.C.P.
and of his sureties, if any, the With this review in mind, we now
amount of money in which address the merits of the State's motion
they are respectively bound, for rehearing which raises an issue
which judgment shall state regarding its burden of proof in this
that the same will be made case. In its motion, the State argues inter
final, unless good cause be alia that in our opinion on original
submission we improperly assigned the
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
burden of proof in a summary judgment forfeiture. Art. 22.02 (emphasis
action [*888] on a bond [**7] supplied). Thus, to be entitled to
forfeiture. In that opinion we stated: forfeiture of a bond [**8] the State need
only show (1) a valid bond; (2) that the
Therefore, the fact issues defendant's name was distinctly called at
which must be proven in a the courthouse door; and (3) the
motion for summary defendant failed to appear within a
judgment on a bond forfeiture reasonable time of that call. At the risk
are: (1) a valid bond executed of being redundant, we reiterate that the
by the surety (Article burden of proof on the second and third
17.08(5)); (2) failure of a prongs is satisfied by the judgment nisi.
defendant bound by bail to Article 22.02 further provides that
appear in a court in which his this judgment will be made final unless
case is pending when his "good cause be shown why the
personal appearance is defendant did not appear." This proviso
required under the Code operates like an affirmative defense in
(Article 22.01); (3) the name that the defendant admits he failed to
of the defendant shall have appear but asserts he has good cause
been called distinctly at the which excuses his failure to do so. This
courthouse door (Article burden is appropriately placed on the
22.02); and (4) no valid defendant.
reason for the principal not
appearing (Article 22.13). The court of appeals, relying upon
Lopez v. State, 678 S.W.2d 197
(Tex.App. - San Antonio 1984, no pet.),
Alvarez & Burns, slip op. at p 3; see also recognized that there are only four fact
Burns, 814 S.W.2d at 770. The State issues in a motion for summary
contends this fourth issue is not a fact judgment on a bond forfeiture. See
which it must prove in a bond forfeiture Burns, 814 S.W.2d at 770. Those issues,
proceeding. A plain reading of Art. per Art. 22.02, are: whether there is a
22.02, along with the Tocher decision, valid bond; whether the principal's name
reveals the State is correct. was called at the courthouse door;
whether the principal failed to appear;
Article 22.02 directs that the and whether the principal had a valid
defendant's name be called "distinctly" reason for not appearing. While there are
at the courthouse door. The defendant is four [**9] fact issues under Art. 22.02,
given a "reasonable time after such call the State bears only the burden of proof
is made" in which to appear. Upon his on three of them. As the State points out
failure to do so, "judgment shall be in its motion for rehearing, this Court
entered" for the State on the bond "inexplicably" stated these issues as the
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
State's burden of proof in our opinion on and his surety from liability upon
original submission. See Alvarez & the forfeiture taken. Allegedly
Burns, slip op. at p. 4. We therefore germane to this cause is section (3)
sustain the State's ground for rehearing which provides:
on this burden of proof issue.
In his second ground for review in The sickness of the
his petition, appellant contended the principal or some
State failed to establish as a matter of uncontrollable
law that the principal had notice of the circumstance which
court setting and "that the summary prevented his
judgment evidence created a substantial appearance at court, and
and genuine issue of material fact it must, in every such
concerning notice to the principal, thus case, be shown that his
precluding summary judgment." On failure to appear arose
original submission we agreed with from no fault on his part.
appellant and concluded "the amended The causes mentioned in
affidavits of the principal's attorney and this subdivision shall not
the affidavit of the surety which present be deemed sufficient to
evidence that the principal did not exonerate the principal
receive notice of the setting raises (sic) and his sureties, is any,
material facts reflecting the unless such principal
contradiction and inconsistency of the appear before final
principal's lack of notice to defeat judgment on the bond to
summary judgment." Id., slip op. at p. 8. answer the accusation
In its motion for rehearing, the State against him, or show
argues that we misapplied the law to the sufficient cause for not
facts. [**10] The State asserts that the so appearing.
dispositive issue before this Court is
whether the appellant, as non-movant,
presented summary judgment evidence Pursuant to the express terms of
on every element of his defense, viz: his Art. 22.13, to controvert the State's
failure to appear was due to an prima facie proof, appellant must
uncontrollable circumstance pursuant to show (1) that some uncontrollable
Art. 22.13, V.A.C.C.P. 5 We disagree circumstance prevented the
with the State's argument. principal's appearance at court, (2)
that the principal's failure to appear
5 Article 22.13, V.A.C.C.P., arose from no fault on his part, and
provides an exclusive list of causes (3) that the principal appeared
which will exonerate the principal before final judgment on the bond
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
to answer the accusation against summary judgment boils down to the
him (or had sufficient cause for not allegation . . . that it is entitled to
so appearing). summary judgment 'as matter (sic) of
In the motion for rehearing, the law by virtue of the fact that no good
State asserts pursuant to Art. 22.13 cause exists for the Defendant-
that we omitted the fact that the Principal's failure to appear.'" Appellant
record is wholly void of any then asserts in his response that there are
evidence that, after forfeiture, the genuine issues of material fact which
principal appeared prior to preclude the State's entitlement to
judgment in the forfeiture case. summary judgment, including lack of
Hence the State argues that even notice to appear. Nowhere in his
though there may have been a lack response (as opposed to his answer)
of notice to appear, appellant has does appellant assert he is entitled to
failed to meet his burden of proof exoneration of [**12] liability on the
on this affirmative defense by not bond forfeiture via Art. 22.13.
presenting any evidence that, in the
23 months between forfeiture and 6 See Burns, 814 S.W.2d at 770.
judgment, he had been returned to 7 See Alvarez & Burns, slip op. at
custody in Harris County. See p. 5.
Fernandez v. State, 516 S.W.2d 677 8 Specifically, appellant filed an
(Tex.Crim.App. 1974). original answer and two amended
answers.
[**11] [*889] In spite of
statements in the court of appeals' In his brief in the court of appeals
opinion 6 and this Court's opinion on appellant contended, inter alia, that the
original submission, 7 appellant has not trial court erred in granting summary
raised or argued an "uncontrollable judgment because a fact issue existed
circumstance" affirmative defense under concerning notice to the principal to
Art. 22.13. The record reveals that appear. Again, appellant did not argue
citation issued on April 15, 1988, on the he was entitled to exoneration pursuant
bond forfeiture. See Art. 22.10. to Art. 22.13. 9 In his petition for
Appellant filed an answer 8 generally discretionary review before this Court,
denying the allegations and providing a appellant contended lack of notice was a
laundry list of defenses, including fact issue in this case but not under Art.
"[appellant] is entitled to be exonerated 22.13. Thus, the affirmative defense of
under the provisions of Article 22.13 an uncontrollable circumstance was not
T.C.C.P." The State then filed its motion an issue before either the court of
for summary judgment. Appellant filed appeals or this Court, and any statements
his reply in response to this motion addressing that issue are dicta.
asserting "the State's entire motion for
Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)
9 Appellant's only argument summary judgment. The State presented
mentioning Art. 22.13 is in a the bond and the judgment nisi to the
constitutional challenge. trial court, thus making a prima facie
Appellant's point of error states: case for the bond forfeiture. Appellant
presented evidence concerning a lack of
The trial court erred in notice to appear and providing good
granting summary cause for his failure to appear. See Art.
judgment because if no 22.02. On original submission we held
actual notice is required, the evidence raised a material fact issue
TEX. CODE CRIM. and the trial judge erred in granting
PROC. ANN. art. 17.09 summary judgment. In reviewing that
(Vernon 1977), TEX. holding on this motion for rehearing, we
CODE CRIM. PROC. conclude our decision was correct.
ANN. art 22.13 (Vernon The State's motion for rehearing is
1989), and the bond are granted only to the extent that we
void as unconstitutional corrected our statement of the State's
under the Fourteenth burden of proof in a [*890] bond
Amendment of the forfeiture case. See pp. 4-5, supra. The
United States other grounds are denied.
Constitution and Art. I,
sec's. (sic) 13 and 19 of Miller, J.
the Texas Constitution. Delivered: June 23, 1993
En Banc
McCormick, PJ., and Overstreet, J.,
[**13] The issue presented here is
concur in result.
whether there is a material fact issue
regarding notice which would preclude
Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)
Ex Parte Thomas Reis Alias Tommy Reis.
No. 14091
COURT OF CRIMINAL APPEALS OF TEXAS
117 Tex. Crim. 123; 33 S.W.2d 435; 1930 Tex. Crim. App.
LEXIS 948
December 17, 1930, Delivered
SUBSEQUENT HISTORY: [***1] felony, bail was granted as in case of
Reported in 33 S.W.2d 435. ordinary offense, the court was
authorized at the same term of court
PRIOR HISTORY: Appeal from the during which the order granting bail was
District Court of Galveston County. entered to set aside the order and relator
Tried below before the Hon. J. C. Canty, was properly remanded to the custody of
Judge. the sheriff.
Habeas corpus proceeding on the Habeas Corpus.
relation of Thomas Reis, alias Tommy The court had the inherent power to
Reis, who, after a hearing, was deal with the person of relator in the
remanded to the custody of the sheriff. manner manifested by the record, since
Affirmed. the purpose of a bail bond is not only to
effectuate the release from custody of a
DISPOSITION: Affirmed. person accused of crime, but "to secure
his presence in order that he may be
HEADNOTES tried upon the charge against him."
Habeas Corpus -- Bail. Habeas Corpus.
Where indictment against relator, The court should not be deprived of
charging a capital offense, was handed its authority to correct a mistake of the
to the judge with numerous other character of the one here presented
indictments charging ordinary felonies, during the term at which the improper
and without hearing the evidence, under order was entered under a
the mistaken belief that the offense misapprehension of the true facts and
charged against relator was an ordinary conditions.
Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)
was returned, the sheriff released relator
COUNSEL: Marsene Johnson, Jr., of on a bond in the sum of five hundred
Galveston, for appellant. dollars. The matter having been brought
to the attention of the trial judge, the
Lloyd W. Davidson, State's Attorney, of order fixing bond was vacated and an
Austin, for the State. alias capias issued upon which relator
was arrested and incarcerated in jail. The
JUDGES: Christian, Judge. vacating order was entered at the same
term of court at which the indictment
OPINION BY: CHRISTIAN had been returned, and during that term
relator sought to be released, upon a
OPINION hearing on a writ of habeas corpus,
[*123] [**436] CHRISTIAN, under the bond he had theretofore
Judge. -- Upon a hearing on a writ of executed in the sum of five hundred
habeas corpus before the district court of dollars. The testimony adduced upon the
Galveston County, relator was remanded hearing was uncontroverted to the effect
to the custody of the sheriff. Hence this that relator entered the home of Mrs.
appeal. [*124] Relator is under Carrie Moeller, exhibited a pistol, bound
indictment charging him with robbery and gagged her, struck her on the head
with firearms, a capital offense. The with the pistol and robbed her of two
indictment against him was returned into thousand dollars.
court with numerous other indictments It is relator's contention that the trial
charging ordinary felonies against court was without authority to vacate the
various persons. As the indictments were order granting bail, notwithstanding the
handed to the judge of the district court fact that [***3] he acted upon a mistake
he was advised by the county attorney, of fact at the time bail was granted. He
upon having made inquiry of him, that relies upon the holding in the cases of
all of the indictments charged ordinary Jenkins v. State, 45 Tex. Crim. 253, 76
felonies. It being the custom of the judge S.W. 464, 77 S.W. 224, and the
to set the bond in cases of ordinary announcement in Augustine v. State, 33
felony at five hundred dollars, he Tex. Crim. 1, 23 S.W. 689. In the latter
indorsed [***2] on each of the case the accused was indicted for murder
indictments such sum as the amount to on the 21st of December, 1876. On the
be required as bail. Among the 29th of the same month the case was
indictments upon which this transferred to Bexar County. In
indorsement appeared was that charging December, 1882, the accused was
relator with the offense of robbery with admitted to bail in the sum of ten
firearms. Thereafter, during the same thousand dollars on account of sickness
term of court at which the indictment rendering it dangerous to longer confine
Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)
him. A month thereafter the prosecution order granting bail. Contending that
was dismissed. In December, 1891, the when the district court granted him bail
accused was re-indicted for the same and the order thereof was spread of
murder and the venue changed to record, such order was final and
Gonzales County, the facts supporting conclusive and became res adjudicata in
the charge being identical with those all subsequent proceedings in the case,
upon which the first indictment had been and that the district judge was without
returned. After the second indictment, power or authority to vacate or withdraw
bail was refused. In reversing the such order, Starritt filed an original
judgment and granting bail, the court, [***5] action in the Supreme Court
speaking through Judge Davidson, held praying for a writ of mandamus. It
that "when bail is once granted after appears that the order granting bail was
indictment found, it is beyond the power vacated at the same term of the court at
of the state to re-arrest for that offense, which it was made. It was the State's
the right to bail being res adjudicata." contention that the district judge had
Subsequently, in the case of Jenkins v. jurisdiction to vacate, withdraw, or set
State, 45 [***4] Tex. Crim. 253, 76 aside the order, even upon his own
S.W. 464, Augustine's Case was cited in motion and without notice, at the same
support of the rule in holding that when term of the court at which the order was
bail is granted after indictment it is made. In holding that the order granting
beyond the [*125] power of the trial bail was res adjudicata and final as to the
judge to increase the amount thereof. State, and that the district judge had no
Again, in Jenkins v. State, 77 S.W. 224, authority to vacate it, it was said that the
the rule laid down in Augustine's Case authorities supporting the right of the
was approved. court to vacate or modify its own
Looking to other jurisdictions, it is judgments or orders were not applicable,
observed that the Supreme Court of in that in such cases the court had under
Oklahoma, in the case of State ex rel. consideration property interests of the
Starritt v. Newman, 114 Okla. 228, 245 parties rather than the liberties of the
P. 999, cited with approval the holding citizens.
in the cases above discussed. Starritt was It is unquestionably the rule in civil
incarcerated on a charge of murder. cases that it is "within the power of the
Upon a proper application, he was court at the same term, to revise or
granted bond in the sum of twenty-five vacate any of its judgments, decrees, or
thousand dollars. Thereafter he orders." Gulf C. and S. F. Ry. Co. v.
presented a bond in said sum in due Muse, District Judge, 109 Tex. 352, 207
form to the district judge, who declined S.W. 897. [**437] Touching the power
to approve the bond, and entered an of the court in such matters in criminal
order setting aside and withdrawing the cases, we quote from Bishop's New
Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)
Criminal Procedure2d Ed., vol. 2, sec. granting bail in a capital case during the
1298, as follows: [***6] "The power of term of court at which the order was
the court to alter its docket entries and entered, but concerned the power to
records during the term wherein they are increase bail or deny bail after a proper
made, includes the right within such order had been duly and legally entered
time to revise, correct and change its fixing the amount of bond, or granting
sentences, however formally bail.
pronounced, if nothing has been done Without approving the doctrine
under them. But steps taken under a announced by the Supreme Court of
sentence, -- for example, a substantial Missouri, in the case of The State v.
part execution thereof, -- will cut off the Eyermann, 172 Mo. 294, 72 S.W. 539, it
right to alter it even during the term." is observed that it was held that the court
It is obvious that the power of the had the power at any time during the
court in the respect mentioned in term at which the accused was let to
criminal cases is not as broad as in civil bail, to alter, amend, cancel, or set aside
cases. However, it is unnecessary at this any order made with respect thereto,
time to discuss the limitations upon such notwithstanding the accused may have
power. complied with its order fixing his bond.
The cases relied upon by relator are Under our Constitution, bail is a
distinguishable upon the facts from the matter of right, except in capital offenses
case at bar. As reflected by the record in when the proof is evident. Section 11 of
such cases, no mistake [*126] entered Art. 1, Constitution of Texas. In
into the order granting bail. It was determining whether a capital offense is
granted upon a proper and legal order bailable, the practice ordinarily pursued
duly entered after legal investigation and in this state is to hear the evidence upon
proper exercise of discretion upon the a writ of habeas [***8] corpus. Upon a
part of the judge. In the present case, hearing the burden is upon the State to
being misinformed by the prosecuting show that the accused is not entitled to
attorney as to the nature of the offense, bail. Otherwise he is entitled to bail as a
the court granted bail in a capital case, in matter of right. Ex parte Powell, 107
the absence of an agreement on the part Tex. Crim. 648, 298 S.W. 575. Unless
of the State that the case was bailable, the evidence heard by the court is clear
and without an examination upon [***7] and strong, leading a well-guarded and
a writ of habeas corpus, or otherwise. In dispassionate judgment to the conclusion
short, the record shows that there was no that an offense has been committed, that
exercise of judicial discretion. The the accused is the guilty agent, and that
question decided in the cases relied upon he would probably be punished capitally
by relator was not related to the power if the law is administered, bail is a
of the court to correct a mistake in matter of right. Ex parte Alford, 97 Tex.
Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)
Crim. 410, 261 S.W. 1041. If the learned contrary, the statute might be susceptible
trial judge had heard the evidence now of the construction that it is only in cases
reflected by the record before he had where bond has been granted after
granted bail in the sum of five hundred investigation on habeas corpus that the
dollars he would have been fully accused is exempt from being again
warranted in reaching the conclusion placed in custody for the same offense.
that the case was not bailable. If relator's We quote from Corpus Juris, vol. 6,
contention be sustained, he is entitled to page 952, as follows: "Upon admission
be enlarged on a bond in an amount to bail the accused [***10] is regarded
generally required in cases of ordinary as in the custody of his bail from the
felony, notwithstanding a mistake of fact moment a bond or recognizance is
as to the character of the offense executed until he is discharged or
prevented the exercise of proper recommitted; but he is also in the
discretion on the part of the court. custody of the law, and it does not
In prohibiting the re-arrest of one deprive the court of its inherent power to
granted bail after indictment, the statute deal with the person of the prisoner."
provides that in "cases where, [***9] The purpose of a bail bond is not
after indictment is found the cause of the only to effectuate the release from
defendant has been investigated on custody of a person accused of crime,
habeas corpus, and an order made, either but "to secure his presence in order that
remanding him to custody, or admitting he may be tried upon the charge against
him to bail, he [*127] shall neither be him." Tex. Jur., vol. 5, page 802. We
subject to be again placed in custody, think the court had the inherent power to
unless when surrendered by his bail, nor deal with the person of relator in
shall he be again entitled to the writ of [**438] the manner manifested by the
habeas corpus, except in the special record. In Ex parte Calloway, 98 Tex.
cases mentioned in this chapter." Article Crim. 347, 265 S.W. 699, this court
169, C. C. P. We mention this for the sustained the action of the trial court in
purpose of showing that it is the policy raising the amount of bail theretofore
of the law that bail be not granted in required after indictment in a felony less
capital cases until the facts have been than capital on the ground that the
properly investigated. Intention to hold accused had made threats that he would
that a proper agreement approved by the not be tried and had failed to appear on
judge authorized to grant bail is invalid several occasions, with the result that
is disclaimed. Nothing in the statute several bonds had been forfeited. We
referred to can properly be construed to think the principle upon which the
prevent the re-arrest of one indicted for a decision rested relates to the inherent
capital offense under the facts power to deal with the person of the
manifested by this record. On the
Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)
accused in order to secure his presence We have decided this case on its
at the trial. merits without reference to the statute
To deprive the court of the [***11] (article 260, C. C. P.) under which the
authority to correct a mistake of the cases relied upon by appellant seem to
nature in question during the term at have been decided. The soundness of
which it was made would render it such decisions is seriously questioned.
powerless to perform its constitutional The judgment is affirmed.
and statutory functions. An inherent Affirmed.
power would be destroyed. The
administration of justice would be [*128] The foregoing opinion of the
hampered, if not entirely defeated. We Commission of Appeals has been
are constrained to hold that the action of examined by the Judges of the Court of
the trial court should be sustained. Criminal Appeals and approved by the
Court.
Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)
Ex Parte Gilbert Vasquez
No. 56,242
The Texas Court of Criminal Appeals
558 S.W.2d 477; 1977 Tex. Crim. App. LEXIS 1290
Nov. 30, 1977
PRIOR HISTORY: [**1] Habeas attempting to commit robbery. Bail was
Corpus Application from Bexar County set at $100,000.
On August 9, 1977 appellant filed his
COUNSEL: For Appellant: Thomas petition for writ of habeas corpus
Rocha, Jr. - San Antonio, TX seeking reduction of bail. A hearing on
said petition was held on August 16,
For Appellee: Bill White, D.A. - San 1977, following which the court refused
Antonio, TX to reduce bail.
OPINION BY: ONION The twenty year old petitioner
testified that he was in jail, that he was
OPINION unable to make the amount of bond set,
that he did not own any real estate, no
[*478] Onion, Presiding Judge stocks or bonds, had no money in the
This appeal is taken from an order bank and no cash anyplace. He related
entered in a habeas corpus proceeding in he had a ten year old automobile, but he
the 227th District Court of Bexar County gave it to "another lawyer" and that
refusing to reduce bail. [**2] it did not belong to him anymore.
The record reflects that on August 3, He testified he had made a $10,000 bond
1977 the appellant was indicted for in an aggravated robbery case, 1/ and
capital murder. The said indictment could possibly make a $10,000 bond in
charged that appellant intentionally and [*479] the instant case. 2/ He told the
knowingly caused the death of Maria court he was paying his lawyer $35 3/ a
Guajardo by shooting her with a gun week on his fee, and if released could
while in the course of committing and find a job with an uncle at $80 or $85 a
week.
Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)
Rodriquez, who had been running, the
1 The aggravated robbery court sustained the objection to further
apparently grew out of the same interrogation by the State.
transaction as the instant case. The State offered no evidence 4/ and
2 The record is somewhat at the conclusion of the hearing the court
confusing on this fact. When asked refused to reduce bail. In its findings the
what kind of bond he, his family or hearing the court refused to reduce bail.
friends could make, petitioner In its findings the court found, among
answered: other things, that the petitioner had
"A. I think that the same failed to show he is financially unable to
amount I had at first. make bond in the amount of $100,000.
"Q. Do you mean another On the same date as the hearing the
$10,000 or the same -- the original petitioner filed a pauper's oath for the
$10,000 bond? purposes of obtaining a record on appeal
of the habeas corpus proceedings. The
"A. The original $10,000." court on the same date ordered the
The witness was then passed. transcription furnished without cost,
3 The source of the $35 weekly finding petitioner [**4] was a pauper.
payments was not revealed.
4 The State has not filed a brief in
Petitioner testified he did not have a
this cause.
pistol inside the grocery store and did
not shoot the deceased as alleged. On Article 17.15, Vernon's Ann.C.C.P.,
cross-examination he acknowledged that provides:
he drove co-defendant Magdalino "The amount of bail to be required in
Rodriquez [**3] to the grocery store, any case is to be regulated by the court,
but stated he did not know Rodriquez judge, magistrate or officer taking the
was going to shoot anyone, that he did bail; they are to be governed in the
not give Rodriquez a gun, and that he exercise of this discretion by the
did not wait for Rodriquez. He admitted Constitution and by the following rules:
he later saw Rodriquez running several
blocks away from the store and inquired "1. The bail shall be sufficiently high
as to his running, but Rodriquez "didn't to give reasonable assurance that the
say nothing. He was afraid." Petitioner undertaking will be complied with.
related that Rodriquez had no gun in his "2. The power to require bail is not
hand and no bag with money in it. He to be so used as to make it an instrument
denied splitting the money with of oppression.
Rodriquez. When asked where he and
Rodriquez went after he picked up
Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)
"3. The nature of the offense and the The nature of the offense was shown
circumstances under which it was to be capital murder (V.T.C.A., Penal
committed are to be considered. [*480] Code, § 19.03), which carries a
"4. The ability to make bail is to be penalty of life imprisonment or death
regarded, and proof may be taken upon (V.T.C.A., Penal Code, § 12.31). And
this point." when considering the nature of the
offense in setting bail, the punishment
The burden of proof is on petitioner permitted by law may be considered.
for reduction in bail to show that bail set [**6] Ex parte Clark, supra; Ex parte
is excessive. Ex parte August, 552 Bufkin, 553 S.W.2d 116 (Tex.Cr.App.
S.W.2d 169 (Tex.Cr.App. 1977); Ex 1977). As to the circumstances under
parte Clark, 537 S.W.2d 40 (Tex.Cr.App. which the offense was committed, there
1976); Holliman v. State, 485 S.W.2d was also little evidence offered. While
912 (Tex.Cr.App. 1972). the return of an indictment establishes
The primary [**5] object or purpose probable cause as a matter of law, Ex
of an appearance bond is to secure the parte Branch, 553 S.W.2d 380
presence of the defendant in court upon (Tex.Cr.App. 1977); Ex parte Preston,
the trial of the accusation against him. 533 S.W.2d 820 (Tex.Cr.App. 1976); Ex
Fly v. State, 550 S.W.2d 684 parte Sellers, 516 S.W.2d 665
(Tex.Cr.App. 1977); McConathy v. State, (Tex.Cr.App. 1974); Ex parte White, 486
528 S.W.2d 594 (Tex.Cr.App. 1975). S.W.2d 301 (Tex.Cr.App. 1972), the only
While bail should be sufficiently high to testimony as to the circumstances under
give reasonable assurance that the which the offense was committed came
undertaking will be complied with, the from the petitioner. He denied his guilt
power to require bail is not to be used so rf that he was implicated with
as to make it an instrument of Rodriquez, the apparent trigger man in
oppression. See Article 17.15(1) and (2), the murder-robbery alleged. He did
supra; Ex parte Kerr, 549 S.W.2d 6 admit he drove Rodriquez to the grocery
(Tex.Cr.App. 1977); Ex parte Clark, store and subsequently picked him up
supra. several blocks from the store. He stated
he did not know that Rodriquez had a
The evidence was meager, but did
gun or had shot anyone and denied he
show that petitioner's home was in San
split the money with Rodriquez. From
Antonio and that he had a construction
the evidence offered, it would appear
job with an uncle if he were to be
that petitioner's criminal responsibility,
released on bail. There was nothing to
if any, would fall under the provisions of
show that petitioner had a criminal
V.T.C.A., Penal Code, § 7.01 and $7.02.
record and no showing as to whether or
not petitioner had a past history of It appears to be undisputed that
failing to appear while on bond. appellant was indigent, 5/ and while he
Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)
indicated that [**7] he might be able to undisputed. On the same date as
post a $10,000 bond, he did not reveal the habeas corpus hearing the
how he would be able to do so. court, upon petitioner's affidavit,
Appellant's indigency is a circumstance found the petitioner a pauper for
to be considered, but it is not a the purposes of appeal.
controlling circumstance nor the sole When appellant's indigency is
criterion in determining the amount of considered along with the nature of the
bail. Ex parte Sierra, 514 S.W.2d 760 offense and the only testimony as to the
(Tex.Cr.App. 1974); Ex parte Runo, 535 circumstances under which the offense
S.W.2d 188 (Tex.Cr.App. 1976); Ex was committed which was offered, as
parte Clark, supra; Ex parte McClellan, well as all other testimony introduced,
545 S.W.2d 483 (Tex.Cr.App. 1977); Ex we conclude that the bail [**8] of
parte Kerr, supra. $100,000 was excessive. The power to
require bail is not to be used as an
5 While the trial court found that instrument of oppression. Article 17.15,
the petitioner had not shown he supra; Ex parte Bufkin, supra. Bail is
was financially unable to make a reduced and set in the sum of $20,000.
$100,000 bond, appellant's
testimony as to his indigency was It is so ordered.
Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)
GRAMERCY INSURANCE CO. D/B/A BEXAR COUNTY
BAIL BONDS, Appellant v. STATE OF TEXAS, Appellee
Appeal No. 04-91-00536-CV
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT,
SAN ANTONIO
834 S.W.2d 379; 1991 Tex. App. LEXIS 3287
May 6, 1991, Delivered
May 6, 1991, Filed
SUBSEQUENT HISTORY: [**1] Rainey, Becky, Assistant Criminal
Motion for Rehearing Denied July 6, District Attorney, Bexar County Justice
1992. State's Petition for Discretionary Center, 300 Dolorosa, San Antonio, TX
Review Refused November 25, 1992. 78205.
PRIOR HISTORY: Appeal from the JUDGES: Sitting: Alfonso Chapa,
227th District Court of Bexar County. Justice, Fred Biery, Justice, Orlando
Trial Court Nos. 91-CI-07569 and 89- Garcia, Justice
SF-0209. Honorable Mike Machado,
Judge Presiding. OPINION BY: FRED BIERY
DISPOSITION: AFFIRMED AS OPINION
MODIFIED [*380] OPINION
Opinion by: Fred Biery, Justice
COUNSEL: ATTORNEYS FOR Gramercy Insurance Co. D/B/A
APPELLANT: Hitchings, Barry P., Bexar County Bail Bonds, appellant,
HITCHINGS, POLLOCK & sought a remittitur from a bail bond
BERNARD, 512 Highland, Suite 200, forfeiture final judgment in the amount
San Antonio, TX 78210. of $ 10,000. Notwithstanding the state's
election not to pursue a $ 10,000
ATTORNEYS OF APPELLEE: Hilbig, judgment on a separate and distinct $
Steven C., Criminal District Attorney, 10,000 personal recognizance bond
Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)
signed by the same defendant arising out correctional Institution at Bastrop,
of the same criminal charge, the Texas.
remittitur request related to the surety July 1990
bond [**2] was denied. For the reasons
stated below, we modify the trial court An employee of the appellant bail
action and, as modified, on affirm the bond company determined that Gonzales
judgment. had been incarcerated in the Nueces
county jail since February 1990. Bexar
A chronology of events is helpful: county authorities [**3] did not have
April 17, 1989 this information until it was provided to
Appellant (Bexar County Bail Bonds) them by appellant's employee.
executed a bail bond in the amount of $ July 20, 1990
10,000 to secure the pretrial release from Final judgment in the amount of $
jail of the principal, Rudolfo Lira 10,000 was granted against the appellant
Gonzales. bail bond company.
October 25, 1989 [*381] January 16, 1991
Because of Gonzales' failure to For the first time, Bexar County
appear, the trial court signed a judgment placed a detainer on Gonzales with the
nisi. United States Marshall's Office.
November 28, 1989 April 18, 1991
Gonzales was arrested again and Gonzales was transferred to the
placed in the Bexar County jail. Bexar County jail for disposition of his
December 1, 1989 Bexar County indictment. He was
Notwithstanding Gonzales' failure to convicted and sentenced to five years
appear pursuant to the terms of the imprisonment in the Texas Department
surety bond, he was granted a $ 10,000 of Corrections.
personal recognizance bond, again June 14, 1991
securing his release from jail. A hearing was conducted concerning
January 16, 1990 the appellant surety company's petition
Gonzales once again failed to appear for a bill of review and special bill of
and the personal recognizance bond was review and a hearing was conducted on
also forfeited. the amended judgment nisi forfeiting
Gonzales' personal recognizance bond.
June 27, 1990 Notwithstanding the disposition and
The surety company learned that conviction on Gonzales' criminal case
Gonzales was incarcerated at the Federal and notwithstanding the state's insistence
that the bail bond company pay $ 10,000
Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)
on the forfeiture of the surety bond, the of action accrued. TEX. CIV. PRAC.
state dismissed it's cause of action REM. CODE [**5] ANN. § 16.051
against Gonzales on the $ 10,000 (Vernon 1986) (residual limitations
personal recognizance bond, presumably period). A general bill of review
because of an uncollectability factor. proceeding requires a petitioner to prove
Appellant surety's petition [**4] for bill (1) a meritorious defense, (2) which the
of review and special bill of review was party was prevented from making by the
denied. opposite party (3) unmixed with any
The procedural vehicle by which the fault or negligence of the petitioner's
appellant surety sought relief is found in own. Alexander v. Hagedorn, 148 Tex.
article 22.17(a) of the Texas Code of 565, 568-69, 226 S.W.2d 996, 998
Criminal Procedure: (1950).
Apparently, the state convinced the
trial judge that the general bill of review
Not later than two years after the date requirements must be applied to article
a final judgment is entered in a bond 22.17, the statutory special bill of
forfeiture proceeding, the surety on the review. We are persuaded, however,
bond may file with the court a special that such is not the case and hold that a
bill of review. A special bill of review statutory bill of review petitioner under
may include a request, on equitable article 22.17 need not conform to the
grounds, that the final judgment be rules of the equitable practice applicable
reformed and that all or part of the bond to bills of review and is not limited by
amount be remitted to the surety, after those restrictions. See Westchester Fire
deducting the costs of court, any Ins. Co. v. Nuckols, 666 S.W.2d 372,
reasonable costs to the county for the 374-375 (Tex. App.--Eastland 1984, writ
return of the principal, and the interest ref'd n.r.e.) (citing Norton v. Cheney,
accrued on the bond amount from the 138 Tex. 622, 161 S.W.2d 73, 74
date of forfeiture. The court in its (1942)); see also Pure Oil Co. v. Reece,
discretion may grant or deny the bill in 124 Tex. 476, 479, 78 S.W.2d 932, 934
whole or in part. (1935). Further, we presume the
A surety also has a right to an legislature intended to abrogate the
equitable proceeding through the Alexander v. Hagedorn general bill of
procedure of a general bill of review. review requirements when it passed
Williams v. State, 670 S.W.2d 717, 722 article [**6] 22.17 in 1987.
(Tex. App.--San Antonio 1984), aff'd as Accordingly, a petitioner under article
modified 707 S.W.2d 40 (Tex. Crim. 22.17 is not required to allege and prove
App. 1986). An original petition for a the Alexander v. Hagedorn elements of a
general bill of review must be brought meritorious defense which could not be
within four years after the date the cause presented because of conduct by the
Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)
opposing party unmixed with any fault United States v. Mizani, 605 F. 2d
or negligence of the petitioner's own. 739, 740 (4th Cir. 1979); Johnson
On the other hand, a special bill of v. State, 172 Tex. Crim. 624, 361
review proceeding under article 22.17 S.W.2d 574, 575-76 (Tex. Crim.
should take into account that the object App. 1961), cert. denied, 371 U.S.
and purpose of bail is to secure the 828, 9 L. Ed. 2d 66, 83 S. Ct. 20
presence of the accused for disposition (1962); Ricard v. State, 171 Tex.
of the criminal charges against him and Crim. 456, 350 S.W.2d 938, 938-40
consider other factors including, but not (Tex. Crim. App. 1961); Williams v.
necessarily limited to the following: State, 159 Tex. Crim. 443, 265
S.W.2d 92, 94 (Tex. Crim. App.
1) a bail bond is not punitive, nor is it 1954).
intended to be a substitute for a fine or In applying these factors to the case
[*382] a revenue device to enrich the before us, the record reflects the
government's coffers. See Carbo v. following:
United States, 7 L. Ed. 2d 769, 82 S. Ct. 1) There is no evidence in the record
662, 665 (1962); United States v. Bass, regarding any cost or inconvenience to
573 F.2d 258, 260 (5th Circ. 1978); the state in regaining custody of
Trammel v. State, 529 S.W.2d 528, 529 Gonzales.
(Tex. Crim. App. 1975).
2) A brief thirty-four day delay was
2) The government's cost and occasioned by Gonzales' failure to
inconvenience in regaining custody. appear.
3) The delay caused by the principal's [**8] 3) There apparently was no
failure to appear. evidence of any willfulness of the breach
4) The willfulness of the principal's of conditions in view of the undisputed
breach of the bond conditions. 5) The fact that Mr. Gonzales was given a
public [**7] interest in insuring the personal recognizance bond three days
principal's appearance. after his rearrest and in view of the
6) The participation of the surety in state's decision not to pursue a $ 10,000
rearresting the principal. 7) The judgment against Mr. Gonzales on his
prejudice suffered by the government. 1 personal recognizance bond.
4) The public interest in law
1 enforcement was served by Mr.
See, e.g., United States v. Gonzales' quick reapprehension.
Cervantes, 672 F.2d 460, 461 (5th 5) The government suffered no
Cir. 1982); United States v. Parr, prejudice in prosecuting the criminal
594 F.2d 440, 444 (5th Cir. 1979); case against Mr. Gonzales and, in fact,
Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)
the appellant surety was the party who surety is able to pay the $ 10,000 to the
located Mr. Gonzales in the Nueces government. We hold that equity, due
County Jail and informed Bexar County process and basic concepts of fairness
authorities. require that Chapter 22 of the Texas
We are also troubled by the apparent code of criminal Procedure be applied
double standard of due process applied similarly to surety bonds and personal
by the state to Mr. Gonzales and the recognizance bonds alike.
appellant surety. On the same day that Accordingly, we sustain the appellant
the state vigorously pursued the $ surety's point of error. There is authority
10,000 judgment against the appellant for the proposition that an appropriate
surety, it filed a motion for nonsuit as to remittitur can be ordered by the
Mr. Gonzalez' $ 10,000 obligation and appellate court. Johnson v. State, 361
said: S.W.2d at 575-76; Ricard v. State, 350
Plaintiff [THE STATE] no longer S.W.2d at 938-40; Williams v. State, 265
desires to prosecute [its] suit against S.W.2d at 95. Taking into account the
Rudolfo L. Gonzales, who is principal requirements of article 22.17 concerning
and surety on this [personal bond] as deduction for court costs, costs for
defendant Rudolfo L. Gonzales has been returning Gonzales to Bexar county and
returned to custody [**9] and the case is the interest accrued on the bond from the
closed, therefore the purpose of the date of forfeiture to the date of rearrest
[personal bond] has been satisfied. (thirty two days), we order that the
(emphasis added). judgment of the trial [**10] court be
reformed to reflect a remittitur of $
The rationale for not pursuing a $ 9,500. As modified, the judgment of the
10,000 judgment against Mr. Gonzales trial court is affirmed.
could and should equally be applied to
the appellant surety. The only apparent FRED BIERY,
difference between the appellant surety Justice
and Mr. Gonzales is that the appellant
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
GRIMES COUNTY BAIL BOND BOARD, Appellant v.
SONNY ELLEN D/B/A SONNY ELLEN BAIL BONDS,
Appellee
NO. 14-06-00906-CV, NO. 14-06-00907-CV
COURT OF APPEALS OF TEXAS, FOURTEENTH
DISTRICT, HOUSTON
267 S.W.3d 310; 2008 Tex. App. LEXIS 5489
July 22, 2008, Judgment Rendered
July 22, 2008, Opinion Filed
SUBSEQUENT HISTORY: Petition
for review filed by, 10/15/2008 OPINION BY: William J. Boyce
PRIOR HISTORY: [**1] OPINION
On Appeal From The 12th District [*313] The Grimes County Bail
Court, Grimes County, Texas. Trial Bond Board suspended and later
Court Cause No. 30,088 and 30,140. revoked Sonny Ellen's bail bond surety
Ellen v. Brazos County Bail Bond Bd., license after he failed to disclose unpaid
127 S.W.3d 42, 2003 Tex. App. LEXIS judgments for bail bond forfeitures in his
6159 (Tex. App. Houston 14th Dist., license application. In a de novo appeal,
2003) the trial court found that Ellen had failed
to pay judgments but nonetheless
reinstated his license. Because Ellen had
COUNSEL: For APPELLANTS: Jon unpaid judgments at the time of trial, the
Christopher Fultz, Anderson, TX. trial court abused its discretion in
reinstating his license. We therefore
For APPELLEES: Lane D. Thibodeaux, reverse the trial court's judgment and
Bryan, TX. remand for further proceedings
consistent with this opinion.
JUDGES: Panel consists of Chief
Justices Hedges, and Justices Brown and BACKGROUND
Boyce.
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
The Board issued a bail bond surety section 1704.252 to provide discretion to
license to Sonny Ellen in April 2005. reinstate, which it employed to reinstate
Two months later, the Board suspended Ellen's license. The Board appealed. 3
Ellen's license for failing to pay or
supersede 26 judgments and instructed 2 The Board also concluded that
him to pay all outstanding judgments to Ellen made a false statement on his
avoid license revocation. In 23 of those license application. The trial court
cases, Ellen filed special bills of review noted on the record that Ellen had
in which he sought to reduce the answered a license application
amounts owed. 1 On July 8, 2005, those question incorrectly, but those
special bills were denied. Ellen comments were [**3] not reduced
subsequently paid most -- but [**2] not to a formal finding of fact;
all -- of the outstanding judgments. therefore, we will not consider
them. See Stevens v. Snyder, 874
1 Filing a special bill of review S.W.2d 241, 243 (Tex. App.--Dallas
does not obviate the bondsman's 1994, writ denied). The record does
obligation to pay or supersede a not demonstrate that the Board
forfeiture judgment. See Tex. Occ. requested an additional finding of
Code Ann. § 1704.204(a) (Vernon fact on this ground, and the trial
2004); In re Casteneda, No. 04-04- court's lack of such finding
00152-CV, 2004 Tex. App. LEXIS therefore is not preserved for
2552, 2004 WL 572355, at *1 (Tex. review. See Robles v. Robles, 965
App.--San Antonio March 24, S.W.2d 605, 611 (Tex. App.--
2004, orig. proceeding [mand. Houston [1st Dist.] 1998, pet.
denied]) (mem. op.). denied).
The Board revoked Ellen's license on 3 Ellen separately appealed the
July 15, 2005 for failing to pay Board's rulings suspending and
judgments pursuant to Occupations later revoking his license. The trial
Code sections 1704.204 [*314] and court consolidated those two de
1704.252. 2 Ellen appealed the Board's novo proceedings, and we resolve
decision to the district court, which both together.
conducted a trial de novo on appeal. The
court found that Ellen failed to pay STANDARD OF REVIEW
judgments in accordance with A bail bond licensee may appeal a
Occupations Code section 1704.204, board order suspending or revoking a
which is a stated reason for suspending license by filing a petition in the trial
or revoking a bail bond surety license. court. Tex. Occ. Code Ann. §
See Tex. Occ. Code Ann. § 1704.252(8) 1704.255(a) (Vernon 2004). The trial
(Vernon 2004). The court interpreted court is to review the appeal "by trial de
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
novo in the same manner as an appeal factual sufficiency of the evidence
from a justice court to a county court." supporting a jury's answer to a jury
Tex. Occ. Code Ann. § 1704.256 question. Blackwood, 2 S.W.3d at 33
(Vernon 2004). Therefore, in the district (citing Catalina v. Blasdel, 881 S.W.2d
court both sides present evidence to the 295, 297 (Tex. 1994)). In reviewing the
trial judge for a determination on the trial court's conclusions [**5] of law,
evidence introduced. See Harris County we will uphold on any legal theory
Bail Bond Bd. v. Burns, 881 S.W.2d 61, supported by the evidence. Burns, 881
62 (Tex. App.--Houston [14th Dist.] S.W.2d at 62.
1994, writ denied). [**4] The board's
decision to revoke a license enjoys no ANALYSIS
deference during the de novo appeal. See The governing statute provides that
id. Instead, the trial court is vested with "[a]fter notice and hearing, a board may
full power to determine the issues and revoke or suspend a license if the license
rights of all parties, and to try the case as holder ... fails to pay a judgment in
though it had been filed originally in that accordance with Section 1704.204." Tex.
court. See Harris County Bail Bond Bd. Occ. Code Ann. § 1704.252(8). Section
v. Blackwood, 2 S.W.3d 31, 33 (Tex. 1704.204 requires a bondsman to pay a
App.--Houston [1st Dist.] 1999), rev'd final judgment on a bail bond forfeiture
on other grounds, 41 S.W.3d 123 (Tex. not later than the 31st day after the date
2001). 4 of the final judgment unless such
judgment [*315] has been appealed, in
4 Although the Texas Supreme which case the bondsman must deposit
Court reversed Blackwood, it with the court either cash or a
nonetheless upheld the principle supersedeas bond in the amount of the
that a board's decision is entitled to judgment. See id. § 1704.204(a).
no deference. See Harris County
Bail Bond Bd. v. Blackwood, 41 In 1994, we examined the
S.W.3d 123, 127 (Tex. 2001) ("[I]n predecessor statute to section 1704.252
a de novo proceeding it was and concluded that a trial court may not
necessary that the [evidence] renew the license of a bondsman who
required by the statute be before has failed to pay or supersede judgments
the trial court, which was required arising from bond forfeitures. Burns,
to pass on [the license] application 881 S.W.2d at 64. The only choices in
without regard to the Board's that circumstance are revocation or
decision.") (emphasis added). suspension. See generally id. at 64-65
(applying the grounds for revocation or
We review the trial court's factual suspension to license renewal). We
findings under the same standards that rejected a suggested interpretation that
would be used in reviewing the legal or would have allowed a board or trial
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
court to permit persons to work as revoke his license based upon the
bondsmen even though [**6] they were presence of unpaid, unsuperseded
statutorily disqualified from doing so. judgments. He urges us to overrule
See id. at 63. We concluded that such a Burns, contending that the decision
statutory interpretation would defeat the violates the Code Construction Act's
legislative purpose of protecting the definition of the term "may;" defeats the
public's interest in securing the purpose of de novo appeal; and renders
appearance of the accused. See id.; In re an accompanying statutory provision
Canales, 52 S.W.3d 698, 702 (Tex. meaningless.
2001) (orig. proceeding) (court may We decline the invitation to overrule
consider the statute's objectives and the Burns, and we re-affirm that the bail
consequences of a particular bond act gives a trial court discretion to
construction). choose between suspending or revoking
Almost a decade later, we concluded the license of a bondsman who has
that Burns survived the Legislature's unpaid judgments at the time of the de
1999 recodification of the bail bond act. novo hearing. The trial court does not
See Ellen v. Brazos County Bail Bond have discretion to reinstate a license
Bd., 127 S.W.3d 42, 47-48 (Tex. App.-- because the statute does not provide this
Houston [14th Dist.] 2003, no pet.). We option under these circumstances. We
presume that the Legislature knew of our reach this conclusion based not only on
interpretation in Burns when it the continuing vitality of Burns, but also
recodified the statute. See Coastal Indus. because of the statute's unambiguous
Water Auth. v. Trinity Portland Cement language.
Div., 563 S.W.2d 916, 918 (Tex. 1978).
The recodified statute carried forward A. Stare Decisis
the same language we interpreted in Given Burns, a discussion of stare
Burns, thereby indicating a legislative decisis is warranted at the outset. Our
adoption of our prior construction. See prior opinions have continuing authority,
id. even when a party contends that a
Although Burns involved license precedent was incorrectly decided. See
renewal rather than suspension or Guest v. Cochran, 993 S.W.2d 397, 404
revocation, the legal justifications for n.6 (Tex. App.--Houston [14th Dist.]
refusing to renew a license apply with 1999, no pet.). [**8] We generally
equal force to suspension or revocation. adhere to our precedents pursuant to
See id. at 64-65. Ellen candidly [**7] stare decisis because consistency
acknowledges that, under Burns's promotes efficiency, fairness, and
interpretation of the bail bond act, the legitimacy. See Weiner v. Wasson, 900
trial court could not reinstate his license; S.W.2d 316, 320 (Tex. 1995). If we did
its only choices were to suspend or not follow our own decisions we would
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
not be giving due consideration to the legislative intent. Canales, 52 S.W.3d at
settled expectations of litigants because 702. If a statute is clear and
no issue could ever be considered truly unambiguous, we need not resort to
resolved. See id. In addition, the rules of construction. Id. We may
legitimacy of the [*316] judiciary rests consider, among other things, the
in significant part "upon a stable and statute's objectives and the consequences
predictable decisionmaking process." Id. of a particular construction. Id. We read
Stare decisis is strongest in cases the statute as a whole and interpret it to
involving statutory construction because effectuate every part. See City of
the Legislature may correct perceived Houston v. Jackson, 42 S.W.3d 316,
construction errors through statutory 319-20 (Tex. App.--Houston [14th Dist.]
amendment. See Fiess v. State Farm 2001, pet. dism'd w.o.j.).
Lloyds, 202 S.W.3d 744, 749-50 (Tex. Ellen focuses on the word "may" in
2006). As noted above, the Legislature the phrase "may revoke or suspend"
met after Burns was issued and appearing in section 1704.252. Ellen
recodified the bail bond act without argues that "may" is permissive rather
substantive change. See Tex. Occ. Code than mandatory so as to give a trial court
Ann. § 1.001 (Vernon 2004). We discretion to reinstate if it so chooses.
therefore presume that the Legislature Ellen stresses that the term "may"
intended the same construction to signifies "discretionary authority or
continue to apply. See Fiess, 202 S.W.3d grants permission or a power." See Tex.
at 749-50. This presumption underscores Gov't Code Ann. § 311.016(1) (Vernon
that Burns was correctly decided. [**10] 2005). This is true as far as it
In light of Ellen's challenge to the goes -- but it does not go as far as Ellen
correctness and wisdom of Burns, contends.
however, we do not rely solely upon The word "may" must be analyzed,
stare [**9] decisis in concluding that but it must not be analyzed in isolation;
the trial court lacked discretion to statutory context must be considered.
reinstate Ellen's license in the face of See, e.g., Aaron Rents, Inc. v. Travis
unpaid judgments. We reach this Cent. Appraisal Dist., 212 S.W.3d 665,
decision because we adhere to our 671 (Tex. App.--Austin 2006, no pet.)
precedent, and because this result is ("[W]hether a statute requires the
dictated by legislative intent reflected in imposition of attorney's fees or vests the
the operative statutory language. trial court with the discretion to decide
does not depend exclusively on whether
B. Statutory Construction the statute uses the word 'may' or
In construing a statute, our primary 'shall.'"); BWI Cos. v. Beck, 910 S.W.2d
goal is to determine and effectuate 620, 623 (Tex. App.--Austin 1995, orig.
proceeding [mand. overruled]).
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
Additionally, the Code Construction Act mentioned in section 1704.252. The
does not elevate any particular rule over word "may" cannot be divorced from its
another. See Tex. Gov't Code Ann. § surrounding language to change the
311.003 (Vernon 2005). We note that statute's meaning, or to add an option the
several other provisions of the Code statute does not provide under these
Construction Act support our conclusion circumstances. See Jones v. Liberty Mut.
in this case, including: Ins. Co., 745 S.W.2d 901, 902 (Tex.
1988); see also Morales v. Liberty Mut.
. The entire statute is Ins. Co., 241 S.W.3d 514, 517-18 (Tex.
presumed to be effective. Id. 2007) (requiring that statutes be read in
§ 311.021(2). context).
. A just and reasonable Section 1704.252's unambiguous
result is intended. Id. § language effectuates the statute's
311.021(3). purpose. The bail bond act was intended
. Public interests are to ensure the financial security and
favored over private interests. integrity of bondsmen, "whose business
Id. § 311.021(5). the Act deems to be in the public interest
aimed at securing the appearance of the
. The Court may consider accused." Burns, 881 S.W.2d at 63;
the objects to be attained and [**12] Blackwood, 41 S.W.3d at 128.
the consequences of a Consistent with that purpose, the Act --
particular construction. Id. § when read as a whole -- evinces a
311.023. consistent legislative intent to prevent
bondsmen with unpaid judgments from
We agree [**11] that the word "may" continuing to issue bail bonds. See, e.g.,
vests the trial court with discretion, but Code Crim. Proc. Ann. art. 17.11, § 2
that discretion does not encompass (Vernon 2005) (disqualifying defaulting
reinstatement. sureties from signing as sureties on
Section 1704.252's key language additional bonds). Accordingly, license
provides that "a board may revoke or applicants must disclose any unpaid
suspend a license if the license holder ... judgments; until such judgments are
fails to pay [*317] a judgment[.]" Tex. paid, applicants are expressly barred
Occ. Code Ann. § 1704.252(8) from licensure. See Tex. Occ. Code Ann.
(emphasis added). This language is § 1704.154(b), (d). Had Ellen disclosed
unambiguous. It gives the trial court the unpaid judgments, the Board would
discretion to choose between revocation have been required to deny his
and suspension. It does not give the trial application. See Blackwood, 41 S.W.3d
court discretion to choose a at 126 ("The Act therefore makes all
reinstatement option that is nowhere application requirements mandatory.").
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
We will not embrace an interpretation of Consistent with this purpose, a proper
section 1704.252 that ignores unpaid bail bond must contain the surety's
judgments foreclosing Ellen's licensure. binder that the defendant will appear to
Enforcement of the bail bond act's answer the charges. Tex. Code Crim.
unambiguous provisions is important for Proc. Ann. art. 17.08, § 2. An officer
the proper functioning of the bail who accepts a bail bond must verify the
mechanism. Bail is the security a sufficiency of the [**14] security
criminal defendant gives to evidence his offered. Id. art 17.11, § 1; art. 17.13.
promise that he will appear and answer Those who would act as sureties must
the accusations brought against him. pass several eligibility requirements,
Tex. Code Crim. Proc. Ann. art. 17.01 including possession of sufficient
(Vernon 2005). The primary purpose financial resources; experience in the
[**13] of a bail bond is to secure the bail bond business; and education from
presence of the defendant in court for an accredited [*318] institution of
trial on the offense with which he has higher learning. See Tex. Occ. Code
been charged. McKenna v. State, 247 Ann. § 1704.152.
S.W.3d 716, 719 (Tex. Crim. App. 2008). After becoming licensed, a bondsman
Bail bonds are contracts between the is prohibited from writing bail bonds
surety and the State of Texas. Reyes v. totaling more than ten times the value of
State, 31 S.W.3d 343, 345 (Tex. App.-- the deposited security. Id. §
Corpus Christi 2000, no pet.). The 1704.203(a). Further, a bondsman may
contract consists of the surety's promise not execute additional bail bonds if the
that the defendant will appear before the amount of liability on pending
court. See id. at 346. Forfeiture judgments nisi equals or exceeds twice
judgments recognize that the State may the amount of the deposited security. Id.
incur costs or suffer inconvenience in re- § 1704.203(c). A bondsman must
arresting an accused who fails to appear. promptly pay all forfeiture judgments
See McKenna, 247 S.W.3d at 719. While not later than the 31st day after the date
bail bonds are neither punitive nor a of the judgment, unless superseded on
substitute for fines or revenue devices, appeal. Id. § 1704.204(a). A licensing
they protect the public's interest by board that learns of unpaid final
ensuring the defendant's appearance and judgments must immediately notify the
encouraging the surety's participation in sheriff, who is prohibited from accepting
re-arrest when the defendant does not any bonds from that surety until the
appear. See Gramercy Ins. Co. v. State, judgments have been paid. See id. §
834 S.W.2d 379, 381-82 (Tex. App.--San 1704.2535. These enforcement
Antonio 1992, no writ). provisions protect against a bondsman's
insolvency. Font v. Carr, 867 S.W.2d
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
873, 880 (Tex. App.--Houston [1st Dist.] determination to revoke, therefore enjoy
1993, writ dism'd w.o.j.). no deferential treatment. See Burns, 881
In [**15] light of this detailed S.W.2d at 62.
structure, the existence of multiple But the power to try a case de novo
unpaid judgments is no mere does not confer unbridled discretion to
technicality. A bondsman's accumulation pick an outcome the statute does not
of unpaid judgments undermines the specify for a bondsman with unpaid
entire bail process. The Legislature judgments. Section 1704.252 limits the
consistently has spoken to prevent trial court's options if it finds one of the
defaulting sureties from continuing to enumerated statutory violations. See id.
act as bail bondsmen. Interpreting (providing that a license may be revoked
section 1704.252 to permit reinstatement or suspended if the bondsman is found
in the face of unpaid judgments would to have committed one of the listed
eviscerate legislative intent to prevent violations). The terms "revoke" and
bondsmen in default from continuing to "suspend" are not interchangeable. A
issue bail bonds. See Burns, 881 S.W.2d suspended license is subject to
at 63. reinstatement if the violation that led to
suspension can be cured. See, e.g., Tex.
C. Trial De Novo Occ. Code Ann. § 1704.253(a)
Ellen contends that continued (providing for reinstatement of a
adherence to Burns is incompatible with suspended license after the deposit of
judicial review of a board's decision by additional security). By contrast, a
trial de novo in the district court. See bondsman whose license has been
Tex. Occ. Code Ann. §§ 1704.255(a), revoked must reapply for a new license.
1704.256. The basis for this contention See, e.g., Austin v. Harris County Bail
is not clear. The district court's power to Bond Bd., 756 S.W.2d 65, 66 (Tex. App.-
conduct a trial "de novo," that is, a "trial -Houston [1st Dist.] 1988, writ denied).
anew," vests the court with full power to Allowing a trial court to re-hear the
determine the issues and parties' rights, evidence and reach its own
and to try the case as though suit had determination while confining its
been filed originally in that court. See options within the boundaries of section
Lone Star Gas Co. v. State, 137 Tex. 1704.252 harmonizes [**17] statutory
279, 153 S.W.2d 681, 692 (Tex. 1941); language with legislative intent to
Blackwood, 2 S.W.3d at 33. The trial prevent sureties from issuing bail bonds
court, as the trier of fact, weighs the while in default of forfeiture judgments.
evidence and assesses credibility. See [*319] The trial court need not make the
Jones v. Tarrant Util. Co., 638 S.W.2d same ruling as the licensing board. For
862, 866 (Tex. 1982). [**16] The example, although a board may revoke a
Board's factual findings, and ultimate license for unpaid judgments, the trial
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
court may opt to consider mitigating § 311.024. Accordingly, we will
factors and decide upon suspension not consider the title when
pending payment of the outstanding interpreting the statute.
judgments. Moreover, if the license Under section 1704.252(8), the board
holder can cure a section 1704.252 "may revoke or suspend a license" if the
violation at the time of the de novo license holder fails to pay or supersede a
hearing by paying outstanding judgment. Under section 1704.253(a),
judgments, the license then may be the board "shall immediately suspend a
reinstated because section 1704.252 no license" if the license holder fails to
longer would require suspension or maintain the aggregate security required
revocation. In short, our interpretation under section 1704.160. Under section
does not conflict with the concept of de 1704.253(b), the board "shall revoke a
novo review. license" if the license holder fails to
maintain the aggregate security required
D. Role of Section 1704.253 under 1704.160, and also fails to pay or
Ellen argues that our interpretation of supersede a judgment.
section 1704.252 is erroneous because it Section 1704.252(8) vests the trial
renders meaningless an accompanying court with discretion to suspend or
provision, section 1704.253. We revoke a license if the bondsman fails to
disagree. pay or supersede a judgment. See Tex.
Section 1704.252 provides for Occ. Code Ann. § 1704.252(8). In
"Discretionary License Suspension or contrast, section 1704.253(a) gives the
Revocation," while section 1704.253 trial court no discretion if the bondsman
provides for "Mandatory License fails to maintain the aggregate security
Suspension or Revocation." 5 Ellen required [**19] under section 1704.160;
contends that interpreting section suspension is the only option. Similarly,
1704.252 to require suspension or section 1704.253(b) gives a trial court
revocation -- and to exclude no discretion if the bondsman fails to
reinstatement -- [**18] makes section pay or supersede a judgment, and also
1704.253 meaningless because this latter fails to maintain the aggregate security
provision also requires suspension or required under section 1704.160. In that
revocation. This argument fails to latter circumstance -- which couples an
recognize that sections 1704.252 and unpaid and unsuperseded judgment with
1704.253 address different insufficient aggregate security --
circumstances. revocation is the only option. See id. §
1704.253(b). Because sections 1704.252
5 The title of a section does not and 1704.253 address different
limit or expand the statute's circumstances, our interpretation of
meaning. See Tex. Gov't Code Ann. section 1704.252 does not render section
Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
(Tex. App.-Houston [14th Dist.] 2008, pet. denied.)
1704.253 meaningless. See Helena still has unpaid judgments against him.
Chem. Co. v. Wilkins, 47 S.W.3d 486, If so, the trial court can decide [*320]
493 (Tex. 2001). whether to revoke [**20] Ellen's license
or suspend it until all outstanding
CONCLUSION judgments have been paid.
Section 1704.252 vests the trial court Accordingly, we reverse the July 18,
with the discretion to revoke or suspend 2006 judgments in cause numbers
a bondsman's license when there are 30,088 and 30,140, and remand to the
unpaid judgments. Because the trial trial court for further proceedings
court found that Ellen had unpaid consistent with this Opinion.
judgments but nevertheless reinstated his /s/ William J. Boyce
license, we must reverse. The Board
asks that we render judgment in its Justice
favor. However, we believe that remand Judgment Rendered and Opinion
is appropriate. We remand these filed July 22, 2008.
proceedings to the trial court for a
determination as to whether Sonny Ellen
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
KPMG Peat Marwick, Petitioner v. Harrison County
Housing Finance Corp., Respondent
No. 97-0729,
SUPREME COURT OF TEXAS
988 S.W.2d 746; 1999 Tex. LEXIS 39; 42 Tex. Sup. J. 428
October 20, 1998, Argued
March 25, 1999, Delivered
PRIOR HISTORY: [**1] On We are asked to decide whether
Petition for Review from the Court of Harrison County Housing Finance
Appeals for the Sixth District of Texas. Corporation's (HCH) claims against
KPMG Peat Marwick, LLP for
DISPOSITION: Court of appeals' violations of the Deceptive Trade
judgment reversed and judgment Practices Act and negligence are barred
rendered that HCH take nothing. by the two-year statute of limitations.
The trial court granted summary
COUNSEL: FOR PETITIONER: judgment for Peat Marwick on all of
Mountz, Mr. Timothy W., Baker & HCH's claims. But the court of appeals
Botts, Dallas, TX. reversed the trial court's summary
judgment on the DTPA and negligence
FOR RESPONDENT: Grajczyk, Mr. claims and remanded these for trial. 1
Gregory P., Boos Law Office, Milbank,
SD. 1 948 S.W.2d 941.
JUDGES: Justice Enoch delivered the Applying the discovery rule, the
opinion of the Court. court of appeals held that neither claim
was time-barred. It reasoned that Peat
OPINION BY: CRAIG T. ENOCH Marwick had not presented conclusive
evidence that HCH discovered or in the
OPINION exercise of reasonable diligence should
have discovered the wrongful [**2] act
[*747] Justice Enoch delivered the
opinion of the Court.
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
which allegedly caused its injury more alleged that in February 1989, First
than two years before HCH filed suit. 2 Interstate prematurely sold assets in the
capital reserve fund, resulting in a loss in
2 Id.at 947. excess of $ 621,000 when the bonds
To the contrary, we conclude that were refunded in December 1991. First
Peat Marwick has conclusively Interstate and its shareholder moved for
established that HCH's claims against summary judgment on several grounds,
Peat Marwick accrued more than two including that the bank had not
years before suit was filed. Accordingly, mismanaged the trust funds, that HCH
we reverse the court of appeals' was well informed of the bank's actions
judgment on both the DTPA and through monthly reports, and that HCH's
negligence claims and render judgment claims were barred by the applicable
that HCH take nothing. [*748] statutes of limitations. Without
specifying the grounds, the trial court
From 1980 to 1990, Peat Marwick granted First Interstate's motion for
provided accounting and auditing summary judgment. HCH did not
services to HCH for a series of bonds appeal.
HCH had issued. In addition, Peat
Marwick was to ensure that the trustee On October 1, 1993, while the First
for the bonds, First Interstate Bank of Interstate lawsuit was still pending,
California, complied with the trust HCH learned about Peat Marwick's 1985
indenture. agreement with First Interstate and that
Peat Marwick's 1985 audit of First
Under the trust indenture, one of First Interstate's records had revealed
Interstate's duties as trustee was irregularities in First Interstate's
overseeing a capital reserve fund accounting of the trust assets. According
established to pay principal or to redeem to HCH, Peat Marwick informed [**4]
bonds. And during the period of the First Interstate but not HCH of the
auditing services, specifically in 1985, irregularities. HCH further claims it then
First Interstate hired, on its own behalf, discovered that Peat Marwick had
a partner from Peat Marwick to prepare advised First Interstate that the capital
a special procedures report about the reserve fund could be set at an amount
trust [**3] assets. But Peat Marwick did lower than what the trust indenture
not tell HCH about this dual required. And HCH asserts that Peat
representation. Marwick did not report that advice to
On February 1, 1993, HCH filed suit HCH.
against First Interstate and one of its HCH sued Peat Marwick in federal
shareholders, alleging breach of court on July 14, 1995, but the case was
fiduciary duty, breach of contract, dismissed for lack of subject matter
negligence, and gross negligence. HCH jurisdiction. HCH then filed suit in state
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
court. For this appeal, Peat Marwick Summary Judgment Standard of
concedes that July 14, 1995, is the Review The standard for reviewing a
applicable date to determine whether summary judgment under Texas Rule of
HCH's claims were barred when filed. 3 Civil Procedure 166a(c) is whether the
successful movant at the trial level
3 SeeTex. Civ. Prac. & Rem. carried its burden of showing that there
Code § 16.064(a). is no genuine issue of material fact and
In this case, HCH alleged that Peat that judgment should be granted as a
Marwick, as the trust's auditor, either matter of law. 4 In conducting our
negligently or intentionally failed to review, we take as true all evidence
disclose First Interstate's favorable [**6] to the nonmovant, and
mismanagement of the trust. HCH we make all reasonable inferences in the
further alleged causes of action for nonmovant's favor. 5
breach of warranty (which is not part of
this appeal) and violations of the DTPA. 4 See, e.g., Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex.
In support of its motion for summary 1991); Nixon v. Mr. Property
judgment on limitations grounds, [**5] Management Co., 690 S.W.2d 546,
Peat Marwick attached HCH's original 548-49 (Tex. 1985).
petition in the suit against First 5 See Nixon, 690 S.W.2d at 548-
Interstate. That petition sought recovery 49.
for the same injury -- the premature
selling of the fund assets in 1989 A defendant moving for summary
resulting in a loss in excess of $ 621,000 judgment on the affirmative defense of
-- that HCH alleges in this suit was limitations has the burden to
caused by Peat Marwick's wrongful conclusively establish that defense. 6
conduct. Peat Marwick contends that the Thus, the defendant must (1)
petition against First Interstate conclusively prove when the cause of
demonstrates that HCH knew of its action accrued, and (2) negate the
claim no later than February 1, 1993. discovery rule, if it applies and has been
Apparently in response, HCH amended pleaded or otherwise raised, by proving
its petition to allege that not until as a matter of law that there is no
October 1, 1993, did it learn of Peat genuine issue of material fact about
Marwick's role in the disputed financial when the plaintiff discovered, or in the
irregularities. But it does not appear that exercise of reasonable diligence should
HCH filed a formal response to Peat have discovered the nature of its injury. 7
Marwick's motion for summary If the movant establishes that the statute
judgment or produced any evidence to [**7] of limitations bars the action, the
defeat the motion. As mentioned, the nonmovant must then adduce summary
trial court granted summary judgment.I.
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
judgment proof raising a fact issue in 11 SeeTex. Bus. & Com. Code §
avoidance of the statute of limitations. 8 17.49(c).
Contending that during the relevant
6 See Velsicol Chem. Corp. v. time period Peat Marwick had worked
Winograd, 956 S.W.2d 529, 530 for First Interstate independently as well
(Tex. 1997). as for [**9] HCH, HCH argues that its
7 See Burns v. Thomas, 786 claims against Peat Marwick did not
S.W.2d 266, 267 (Tex. 1990); accrue until October 1, 1993, when it
Woods v. William M. Mercer, Inc., learned through discovery in the First
769 S.W.2d 515, 518 n.2 (Tex. Interstate suit that Peat Marwick knew
1988). of financial irregularities in the bond
8 See City of Houston v. Clear issue but failed to report them to HCH.
Creek Basin Auth., 589 S.W.2d In agreeing with HCH, the court of
671, 678 (Tex. 1979). appeals erroneously concluded that in
recent decisions this Court employed a
[*749] II. Accrual of HCH's DTPA "new formulation" of the discovery rule.
Claim 12
The court of appeals held that under
A DTPA claim is subject to a two- this "new formulation," a claim does not
year statute of limitations. The claim accrue until plaintiff knows not only of
accrues when "the consumer discovered the injury, but the specific nature of each
or in the exercise of reasonable diligence wrongful act that may have caused the
should have discovered [**8] the injury. 13 This is incorrect. The rule in
occurrence of the false, misleading, or those cases was, as it is in this one, that
deceptive act or practice." 9 Thus, the accrual occurs when the plaintiff knew
discovery rule applies to HCH's DTPA or should have known of the wrongfully
claim. 10 We note that effective caused injury. 14
September 1, 1995, the Legislature
amended the DTPA to exempt 12 See 948 S.W.2d at 946 (citing
professional services with some Diaz v. Westphal, 941 S.W.2d 96,
exceptions. But because this suit was 99 (Tex. 1997); S.V. v. R.V., 933
originally filed before that date, the 1995 S.W.2d 1, 4 (Tex. 1996)).
amendments do not apply. 11 13 See 948 S.W.2d at 947.
[**10]
9 Tex. Bus. & Com. Code §
17.565. 14 See Murphy, 964 S.W.2d at
10 See Burns, 786 S.W.2d at 267; 271; Diaz, 941 S.W.2d at 99; S.V.,
see also Murphy v. Campbell, 964 933 S.W.2d at 4; see also Childs v.
S.W.2d 265, 271 (Tex. 1997). Haussecker, 974 S.W.2d 31, 40
(Tex. 1998); Russell v. Ingersoll
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
Rand Co., 841 S.W.2d 343, 344 n.3 also asserts that its pleading is sufficient
(Tex. 1992); Moreno v. Sterling summary judgment evidence of the
Drug, Inc., 787 S.W.2d 348, 351 affirmative defense of fraudulent
(Tex. 1990). concealment to defeat Peat Marwick's
The summary judgment evidence summary judgment motion. In both
established that the wrongful injury respects, HCH is incorrect.
HCH alleges it suffered is the loss of First, a party asserting fraudulent
over $ 621,000 in December 1991 when concealment as an affirmative defense to
it refunded the bonds following the the statute of limitations has the burden
premature sale in 1989 of the reserve to raise it in response to the summary
fund assets. Significantly, HCH sued judgment motion 15 and to come forward
First Interstate over this precise injury in with summary judgment evidence
early 1993, less than two years later. raising a fact issue on each element of
Indisputably, HCH was aware by then of the fraudulent concealment defense. 16 A
its injury and that its injury was caused mere pleading does not satisfy either
by the wrongful conduct of another. [*750] burden. 17 Thus, even assuming
The loss from the premature sale of that HCH pled fraudulent concealment
the fund assets should have caused HCH as an affirmative defense to Peat [**12]
to investigate not only the possibility Marwick's answer pleading limitations,
that First Interstate had mismanaged the HCH still had to respond to Peat
fund assets, as HCH apparently did Marwick's summary judgment motion.
because it sued First Interstate, but also There is no such response in the record.
Peat Marwick's possible [**11] Therefore, HCH did not carry its burden
involvement in the mismanagement and to both plead the defense and support it
loss. HCH had hired Peat Marwick to do with summary judgment evidence.
annual trust asset audits, including the
reserve fund, to ensure compliance with 15 SeeTex. R. Civ. P. 166a(c);
the trust indenture. Therefore, the loss Hudson v. Wakefield, 711 S.W.2d
should have caused HCH to also 628, 630 n.1 (Tex. 1986); City of
investigate why its auditor, Peat Houston, 589 S.W.2d at 679.
Marwick, did not discover or report the 16 See American Petrofina, Inc.
mismanagement. v. Allen887 S.W.2d 829, 830 (Tex.
1994); Nichols v. Smith, 507
As an independent ground to defeat S.W.2d 518, 521 (Tex. 1974).
summary judgment, HCH asserts that 17 See City of Houston, 589
Peat Marwick fraudulently concealed its S.W.2d at 678.
wrongful conduct, and limitations did
not begin to run until HCH knew or Second, when a defendant has
should have known of its injury. HCH fraudulently concealed the facts forming
the basis of [**13] the plaintiff's claim,
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
limitations does not begin to run until 20 See Childs, 974 S.W.2d at 36;
the claimant, using reasonable diligence, Murphy, 964 S.W.2d at 270.
discovered or should have discovered HCH argues that its negligence claim
the injury. 18 Because Peat Marwick's against Peat Marwick did not accrue
summary judgment evidence until it learned through discovery in the
conclusively established that HCH First Interstate suit of Peat Marwick's
discovered its injury more than two wrongful conduct. We disagree.
years before it sued Peat Marwick, Peat
Marwick is entitled to summary This Court has never considered
judgment. As with the discovery rule, whether the discovery rule applies to
once HCH knew that it had been injured auditing malpractice claims. Assuming
by fund mismanagement, it should have without deciding that it does, however,
investigated why its auditor, Peat the summary judgment evidence
Marwick, had failed to discover or establishes that HCH knew or should
report the mismanagement to HCH. have known of its negligence claim
Accordingly, fraudulent concealment more than two years before it filed suit.
pleadings do not rescue HCH's DTPA HCH relies on the same wrongfully
claim.III. Accrual of HCH's [**15] caused injury asserted in the
Negligence Claim DTPA cause of action to claim that Peat
Marwick was negligent. And as we have
18 See Computer Assocs. Int'l, mentioned, the evidence conclusively
Inc. v. Altai, Inc., 918 S.W.2d 453, establishes that HCH knew of the
455 (Tex. 1995); Estate of reserve fund's mismanagement, at least,
Stonecipher v. Estate of Butts, 591 no later than when it filed the first suit
S.W.2d 806, 809 (Tex. 1979). against First Interstate, February 1,
1993. Consequently, HCH's negligence
Under Section 16.003 of the Civil claim is also time-barred. Furthermore,
Practice and Remedies Code, negligence as with HCH's DTPA claims, its
claims, including accounting fraudulent concealment pleadings do not
malpractice, must be brought "not later rescue the negligence claim.
than two years after [**14] the day the
cause of action accrues." 19 Because the Peat Marwick has established the
statute does not define or specify when affirmative defense of limitations by
accrual occurs, we look to the common conclusively showing that HCH's causes
law to determine when a cause of action of action accrued more than two years
accrues. 20 before HCH filed suit. As a result,
limitations bars HCH's claims for DTPA
19 Tex. Civ. Prac. & Rem. Code § violations and negligence and Peat
16.003(a); see also Murphy, 964 Marwick is entitled to summary
S.W.2d at 270. judgment. Therefore, we reverse the
KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)
court of appeals' judgment and render Craig T. Enoch, Justice
judgment that HCH take nothing. Opinion delivered: March 25, 1999
Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)
FELIX MICHAEL KUBOSH, Appellant v. THE STATE
OF TEXAS, Appellee
NO. 01-04-00268-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT,
HOUSTON
177 S.W.3d 156; 2005 Tex. App. LEXIS 948
February 3, 2005, Opinion Issued
SUBSEQUENT HISTORY: petition Kubosh, Law Offices of Paul Kubosh,
for discretionary review dismd In re Houston, Tx.
Kubosh, 2005 Tex. Crim. App. LEXIS
1140 (Tex. Crim. App., July 27, 2005) For Appellee: Charles A. Rosenthal, Jr.,
Petition for discretionary review refused District Attorney - Harris County,
by In re Kubosh, 2005 Tex. Crim. App. Houston, TX; Ms. Juliane Phillips Crow,
LEXIS 1627 (Tex. Crim. App., Sept. 14, Houston, TX.
2005)
Motion for rehearing on petition for JUDGES: Panel consists of Justices
discretionary review denied by In re Nuchia, Jennings, and Alcala.
Kubosh, 2005 Tex. Crim. App. LEXIS
1846 (Tex. Crim. App., Oct. 26, 2005) OPINION BY: Elsa Alcala
PRIOR HISTORY: [**1] On OPINION
Appeal from the 228th District Court. [*157] Appellant, Felix Michael
Harris County, Texas. Trial Court Cause Kubosh, a surety on a bail bond
No. 904739-A. executed for Gustavo Casas, Sr.,
challenges the trial court's final
DISPOSITION: Affirmed. judgment in favor of the State for the
full amount of a $ 75,000 bond plus
costs of court, which resulted from
COUNSEL: For Appellant: David A. Casas's failure to appear in court, as
Furlow, Stacy L. Kelly, Thompson & required by the bail bond. In four issues,
Knight L.L.P., Houston, TX; Paul Kubosh contends that the trial court
Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)
erred by rendering judgment in favor of Kubosh filed an amended answer that
the State. Kubosh contends that the bail included a general denial and two
bond was invalid as a contract under "affirmative defenses authorized under
affirmative defenses recognized by the TEX. R. CIV. P. 94: failure [**3] of
Rules of Civil Procedure, and therefore, consideration and legal excuse." 2 The
that the agreement was invalid under premise underlying Kubosh's purported
Chapter 22 of the Code of Criminal "affirmative defenses" was his
Procedure, 1 which exonerates the surety contentions that, (1) after Casas failed to
from liability if "the bond is, for any appear in court, the State failed to
cause, not a valid undertaking in law. procure the Mexican government's
[**2] " Kubosh also challenges the trial timely issuance of a "provisional
court's failure to order civil discovery warrant," due to the Harris County
concerning the bond forfeiture and the District Attorneys Office's inadequate
State's extradition policies and extradition policies concerning bail-
procedures. We affirm. jumping defendants, and that, (2)
although Mexican officials knew where
1 See TEX. CODE CRIM. PROC. Casas was, he could not be arrested
ANN. art. 22 (Vernon Supp. 2004- without the provisional warrant.
2005).
2 Rule 94 states,
Background "AFFIRMATIVE DEFENSES[:]
Casas was charged by indictment In pleading to a preceding
with felony possession of more than pleading, a party shall set forth
2,000 pounds of marihuana. Kubosh, a affirmatively accord and
licensed bail bondsman, and Raul satisfaction, arbitration and award,
Ruvalcaba executed a bail bond in the assumption of risk, contributory
amount of $ 75,000, as sureties on the negligence, discharge in
bond for Casas, the principal on the bankruptcy, duress, estoppel,
bond, to secure Casas's [*158] release failure of consideration, fraud,
from custody pending resolution of the illegality, injury by fellow servant,
charges. Casas failed to appear and laches, license, payment, release,
answer the charge against him as res judicata, statute of frauds,
required, and the State moved for bond statute of limitations, waiver, and
forfeiture. The trial court signed a any other matter constituting an
judgment of forfeiture (judgment nisi) avoidance or affirmative defense . .
for the full amount of the bond plus ."
costs of court, and an alias capias was Kubosh [**4] gave the State notice
issued to arrest Casas. of intent to take the deposition of a
Harris County District Attorney's office
Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)
employee, Kim Bryant, but the State 3 Neither the principal on the
moved to quash the deposition and for bond, Gustavo Casas Sr., nor
protection. The State also filed a motion cosurety, Raul Ruvalcaba, are
to strike Kubosh's amended answer. parties to this appeal, although they
Kubosh subsequently filed applications were parties to the underlying
for subpoenas for witnesses and proceedings.
production of documents.
When the trial court began the bond- Exoneration From Liability Upon
forfeiture bench trial on November 19, Forfeiture
2003, the State offered a certified copy Kubosh contends that he is
of the judgment nisi. Kubosh objected to exonerated from liability for Casas's
admitting this evidence by asserting that failure to appear based on Chapter 22 of
the State had not complied with his the Code of Criminal Procedure, which
discovery requests. The trial was exonerates the defendant and his sureties
continued until December. In a hearing if "the bond is, for any cause, not a valid
held on December 18, 2003, the trial undertaking in law." TEX. CODE CRIM.
court ruled that Kubosh's motions to PROC. ANN. art. 22.13(a)(1) (Vernon
compel discovery were untimely, and Supp. 2004-2005). Chapter 22 allows a
that the discovery he requested was surety to offer proof on the affirmative
irrelevant. defense of exoneration to avoid liability
On December 22, 2003, the State for a bail bond under the following
again presented certified copies of the circumstances only:
judgment nisi and the bail bond executed
by Kubosh, Casas, and Raul Ruvalcaba. [*159] (a) The following
After the trial court admitted the State's [**6] causes, and no other,
exhibits over Kubosh's objections that will exonerate the defendant
the State had failed to comply with his and his sureties, if any, from
discovery motions, the State rested. liability upon the forfeiture
Kubosh attempted to offer exhibits taken:
related to the State's extradition policies, 1. That the bond is, for any
[**5] but the trial court ruled that the cause, not a valid and binding
exhibits were inadmissible. The trial undertaking in law. If it be
court ruled in favor of the State and valid and binding as to the
signed a final judgment of forfeiture principal, and one or more of
against Kubosh, Casas, and Ruvalcaba, his sureties, if any, they shall
jointly and severally, on the full amount not be exonerated from
of the bond plus costs of court. 3 liability because of its being
invalid and not binding as to
another surety or sureties, if
Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)
any. If it be invalid and not indictment or information,
binding as to the principal, and the prosecution has not
each of the sureties, if any, been continued by order of
shall be exonerated from the court.
liability. If it be valid and
binding as to the principal,
but not so as to the sureties, if TEX. CODE CRIM. PROC. ANN. art.
any, the principal shall not be 22.13(a) (Vernon Supp. 2004-2005); see
exonerated, but the sureties, if Spradlin v. State, 100 S.W.3d 372, 379
any, shall be. (Tex. App.--Houston[1st Dist.] 2002, no
2. The death of the pet.).
principal before the forfeiture Article 22.13(a)'s four enumerated
was taken. causes provide the sole bases by which a
3. The sickness of the defendant and his sureties may be
principal or some exonerated upon forfeiture of a bond.
uncontrollable circumstance See id. (The following causes, and no
which prevented his other. . . .) (emphasis added); Lyles v.
appearance at court, and it State, 587 S.W.2d 717, 717 (Tex. Crim.
must, in every such case, be App. 1979); Rodriguez v. State, 673
shown that his failure to S.W.2d 635, 636 (Tex. App.--San
appear arose from no fault on Antonio 1984, no writ).
his part. The causes When asked by the trial court
mentioned in this subdivision whether he had a binding agreement
shall not be deemed sufficient with Casas, or whether he would be
to exonerate the principal and presenting any evidence that they did not
his sureties, if any, unless have a binding agreement, Kubosh
such principal appear before responded, "I'm not presenting any
final judgment on the bond to evidence on that issue, your honor.
answer the accusation against [**8] " When asked further if he would
[**7] him, or show sufficient be presenting evidence on any of the
cause for not so appearing. three other affirmative defenses
4. Failure to present an available under article 22.13, Kubosh
indictment or information at responded, "no." We conclude that
the first term of the court Kubosh presented no evidence of an
which may be held after the affirmative defense that would exonerate
principal has been admitted to himself from liability upon the forfeiture
bail, in case where the party of the bond under Chapter 22 of the
was bound over before Code of Criminal Procedure.
Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)
Although Kubosh does not dispute release the principal because of
that the State met the statutory contractual consideration between
requirements of the judgment nisi, he the State and the surety, but
claims that he asserted defenses of because of constitutional and
failure of consideration and legal excuse, statutory rights of the principal. Id.;
in accordance with rule 94 of the Rules TEX. CONST. art. I, § 11; TEX.
of Civil Procedure, and that, because of CODE CRIM. PROC. ANN. art.
these affirmative defenses, the bond is 1.07 (Vernon 1977).
"not a valid undertaking in law" under After a forfeiture has been declared
article 22.13(a)(1) of the Code of on a bond, the case is placed on the civil
Criminal Procedure. TEX. CODE docket with the State of Texas as the
CRIM. PROC. ANN. art. 22.13(a)(1) [**10] plaintiff, and the defendant and
(Vernon Supp. 2004-2005). Kubosh any sureties as defendants. TEX. CODE
further contends that civil law of CRIM. PROC. ANN. art. 22.10 (Vernon
contract applies 4 [*160] because the Supp. 2004-2005). A bond forfeiture
bail bond is a three-way contractual action is a criminal proceeding that
agreement among the State, the principal utilizes the Rules of Civil Procedure. Id.
defendant, and the bail-bond surety, (stating that a bond-forfeiture case is
which requires that the State take governed by same rules governing other
reasonably timely steps to secure the civil suits); State v. Sellers, 790 S.W.2d
issuance of provisional [**9] warrants 316, 321 (Tex. Crim. App. 1990). The
for the arrest of bond-skipping civil rules apply procedurally, however,
defendants who flee the country. and not substantively. See Sellers, 790
S.W.2d at 321. Article 22.10 does not
4 We disagree with Kubosh's transform a bond forfeiture proceeding
contention that the State is a party from a criminal case into "a civil case."
to the bail-bond contract. The bond Sellers, 790 S.W.2d at 321.
is "a written undertaking entered
into by the defendant and his "It is well-settled that the State's case
sureties. . ." TEX. CODE CRIM. in a bond-forfeiture proceeding consists
PROC. ANN. art. 17.02 (Vernon of the bond and the judicial declaration
1977); Rodriguez v. State, 673 of the forfeiture of the bond, which is
S.W.2d 635, 640 (Tex. App.--San the judgment nisi. Once this has been
Antonio 1984, no writ). The established, the defendant must then
sureties agree to assume the bond prove that one of the elements has not
obligation in return for been complied with." Tocher v. State,
consideration, usually a fee, paid 517 S.W.2d 299, 301 (Tex. Crim. App.
by the principal. Rodriguez, 673 1975); Spradlin, 100 S.W.3d at 377;
S.W.2d at 640. The State does not McCluskey v. State, 64 S.W.3d 621, 623
Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)
(Tex. App.--Houston [**11] [1st Dist.] Kubosh's complaints concerning
2001, no pet.). discovery all pertain to his contention
By presenting the bond and the that [**12] the contract was invalid
judgment nisi to the trial court, the State under defenses recognized by the Civil
made a prima facie case for forfeiture of Rules of Procedure, which we have
the bond. See Alvarez v. State, 861 rejected above. A trial court does not err
S.W.2d 878, 881 (Tex. Crim. App. 1992). by excluding evidence if the evidence
The burden then shifted to Kubosh, who does not show that the accused is
had the burden to either (1) prove that entitled to the defense to which it
the State did not satisfy one of the applies. Reed v. State, 794 S.W.2d 806,
statutory requirements of the judgment 809-11 (Tex. App.--Houston [14th Dist.]
nisi, or (2) raise a fact issue on his 1990, pet. ref'd). Thus, any discovery
affirmative defense of exoneration. Id. related to equitable affirmative defenses
at 881; Hill v. State, 955 S.W.2d 96, not recognized under article 22.13
100-01 (Tex. Crim. App 1997). [*161] is irrelevant. See In re Am.
Optical Corp., 988 S.W.2d 711, 713, 41
We conclude that the defenses listed Tex. Sup. Ct. J. 1146 (Tex. 1998)
in rule 94 of the Texas Rules of Civil (holding that discovery requests must be
Procedure do not apply to a bond reasonably tailored to include only
forfeiture proceeding, and thus hold that matters relevant to the case).
the trial court did not err by finding that
Kubosh was liable for the bail bond. We overrule Kubosh's issues
concerning the trial court's discovery
We overrule Kubosh's first issue. rulings.
State's Failure to Comply with Conclusion
Discovery
We affirm the judgment of the trial
In his remaining issues, Kubosh court.
challenges the State's alleged failure to
comply with his discovery requests Elsa Alcala
concerning his claimed "affirmative Justice
defenses" of failure of consideration and
legal excuse.
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
VERNON P. LYLES, et. al, Appellant v. THE STATE OF
TEXAS, Appellee
No. 1302-91
COURT OF CRIMINAL APPEALS OF TEXAS
850 S.W.2d 497; 1993 Tex. Crim. App. LEXIS 29
February 3, 1993, Delivered
SUBSEQUENT HISTORY: [**1]
As Corrected March 8, 1993. [*498] OPINION ON STATE'S
PETITION FOR DISCRETIONARY
PRIOR HISTORY: Petition for REVIEW
Discretionary Review from the Tenth This is a criminal bail bond forfeiture
Court of Appeals. (Robertson County) case. The State petitioned this Court for
review on two grounds, one of which we
granted in order to determine the
COUNSEL: For Appellant: Carolyn constitutionality of TEX. CODE CRIM.
Findley Price, Arlington, Tx. G. P. (Pat) PROC. ANN. Art. 22.16(a). Although we
Monks, Houston, Tx. find 22.16(a) unconstitutional because it
utilizes the provisions of TEX. CODE
For State: Jimmie McCullough, C. A., CRIM. PROC. ANN. Art.22.16(c), we
Franklin, Tx. Robert Huttash, State's will reverse the Court of Appeals on
Attorney, Austin, Tx. other grounds.
JUDGES: En Banc. White, Judge, Initially, we will address whether
Clinton, Judge concurring opinion, subsection (a) is constitutional since it
Campbell, Judge joined by Maloney, was a ground on which we initially
Judge concurring in part & dissenting in granted review. However, the ultimate
part, Baird, Judge dissenting opinion disposition of this case will hinge on our
prior decision in Makeig [**2] v. State,
OPINION BY: WHITE 830 S.W.2d 956 (Tex. Crim. App. 1992),
adopting the decision and reasoning of
OPINION the Court of Appeals in Makeig v. State,
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
802 S.W.2d 59 (Tex.App. - Amarillo set by Subsection (c) of this article, the
1990). We will therefore address Article court shall, on written motion, remit to
22.16(a) and then resolve the instant the surety the amount of the bond after
case. deducting the costs of court, any
This matter arose out of a bond reasonable costs to the county for the
forfeiture in the Robertson County return of the principal, and the interest
Court. Vernon P. Lyles, a professional accrued on the bond amount as provided
bondsman, was the surety on a $ 1500 by Subsection (e) of this article if:
bond with Thomas Earl Marks as its (1) the principal is incarcerated in the
defendant-principal. Marks failed to county in which the prosecution is
appear in court on December 7, 1989, on pending;
a misdemeanor property offense and ...
judgment nisi was entered. Marks was
rearrested on December 16 and placed in Art. 22.16(c) provides:
the Robertson County jail. On February (c) A final judgment may be entered
7, 1990, final judgment was entered by against a bond not earlier than:
the trial court. Respondent filed his
(1) nine months after the date the
motion to remit the full amount of the
forfeiture was entered, if the offense for
bond on March 6, 1990, along with a
which the bond was given is a
motion to vacate or modify the final
misdemeanor; or
judgment entered against the bond. The
trial court denied his motions. (2) 18 months after the date the
forfeiture was entered, if the offense for
Respondent Lyles appealed to the
which the bond was given is a felony.
Tenth Court of Appeals raising six
points of error. [*499] The Court of Article 22.16(a) is at issue because it
Appeals sustained the three points which is dependent upon timeframes provided
addressed remittitur of the bond and for in 22.16(c). Article 22.16(c) has been
therefore reversed the judgment of the held unconstitutional by this Court in
trial court in a published opinion. Lyles State v. Matyastik, [**4] 811 S.W.2d
v. State, [**3] 814 S.W.2d 411 102 (Tex.Cr.App. 1991) and Armadillo
(Tex.App.-Waco 1991). The question Bail Bonds v. State, 802 S.W.2d 237
raised in the Court of Appeals and in this (Tex.Cr.App. 1990).
Court is the constitutionality of Art. Article 22.16(c) was first addressed
22.16(a). by this Court in Armadillo Bail Bonds v.
Art. 22.16(a) provides in pertinent State, 802 S.W.2d at 237. Our analysis in
part: Armadillo Bail Bonds began by
recognizing that a violation of the
(a) After forfeiture of a bond and
separation of powers provision of the
before the expiration of the time limits
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
State Constitution occurs when one Matyastik, 811 S.W.2d at 104. This issue
branch of government unduly interferes arose because Article 22.16(a) refers to
with another branch's exercise of its 22.16(c) in the body of the statute. Art.
constitutionally assigned powers. Id., at 22.16(a) provides in pertinent part:
239. Since the ability to enter final After forfeiture of a bond and before
judgments is a "core power" of the the expiration of the time limits set by
judiciary, we found that the legislature Subsection (c) of this article, the court
unduly interfered with the exercise of shall . . . (emphasis added).
this power by passing a statute which
suspended the entrance of a final [*500] In our analysis in Matyastik,
judgment for up to a year and a half. Id., we were careful to note that if one part
at 241. Thus, the statute was found to be of a statute is held unconstitutional, "the
a violation of the separation of powers remainder of the statute must be
provision since it allowed the legislature sustained if it is complete in itself [**6]
to usurp a judicial function. Id. and capable of being executed in
accordance with the intent wholly
In State v. Matyastik, this Court independent of that which has been
applied the reasoning announced in rejected." Matyastik, 811 S.W.2d at 104,
Armadillo Bail Bonds to find section quoting Tussey v. State, 494 S.W.2d 866,
(c)(1) of the statute unconstitutional. 870 (Tex.Cr.App. 1973). However, this
State v. Matyastik, 811 S.W.2d at 102. Court found that subsection (a) is
Where section (c)(2) addresses felonies, contingent upon the time limitations set
section (c)(1) of the statute [**5] forth in subsection (c). Matyastik, 811
prohibits the court from entering final S.W.2d at 104. Therefore, we held that
judgment in a misdemeanor case until the portion of subsection (a) that utilizes
nine months after forfeiture. Because of subsection (c) is invalid under Article 2,
the similar time requirement, (c)(1) was Section 1 of the Texas Constitution since
also found to be a legislatively imposed subsection (a) cannot be executed or
statutory restraint on a trial court's have any effect without utilizing the
ability to enter final judgments. Id., at provisions of subsection (c). Id.
104. The reasoning in Armadillo Bail
Bonds was therefore extended to also 1 After the holdings in Armadillo
hold section (c)(1) unconstitutional as a and Matyastik, Article 22.16(c)
violation of the separation of powers was considered unconstitutional in
provision of the State Constitution. Id. its entirety. Some confusion has
Having found 22.16(c) arisen on this issue by our adoption
1
unconstitutional , this court then of the Court of Appeals decision in
considered in Matyastik whether Art. Makeig v. State, 802 S.W.2d 59
22.16(a) also interfered with the court's (Tex.App. - Amarillo 1990). In the
exercise of the judicial function. State v. opinion, there is a reference that
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
the 22.16(c) timeframes must language ". . . and before the
expire before 22.16(d) applies. We expiration of the time limits set by
held 22.16(c) unconstitutional in Subsection (c) of this article . . ."
Armadillo and Matyastik and [**8]
therefore 22.16(c) should not 3 In his dissent, Judge Baird
control the applicability of disagrees that Matyastik held that
22.16(d). It was not our intention to remittitur is now discretionary with
reverse these decisions by adopting the court at anytime prior to entry
Makeig. of a final judgment. Instead, he
[**7] This Court is now asked to believes Matyastik actually stated
determine whether subsection (a) is to be that mandatory, rather than
read without reference to subsection (c) discretionary, remittitur may be
2
, or, alternatively, find the entire done at anytime before entry of a
subsection invalid. We believe that the final judgement. The exact
latter is the correct interpretation. As language in Matyastik was as
was noted in Matyastik, subsection (a) is follows:
contingent upon the time limitations "Because subsection (a) cannot
established in subsection (c). Subsection be executed or have any effect
(a) is dependent upon subsection (c) to without utilizing the provisions of
establish the timeframes for mandatory subsection (c), we hold that the
remittitur. Without these deadlines, portion of Art. 22.16(a),
remittitur of a forfeited bond would be V.A.C.C.P., utilizing subsection (c)
mandatory at any time after the is invalid under Article 2, § 1 of the
forfeiture because there is no "judgment" Texas Constitution. Thus, remittitur
provision in subsection (a). now may be done anytime between
Consequently, subsection (a) cannot be forfeiture and entry of a final
executed or have any effect without the judgment."
invalid provisions. Matyastik, 811 Respectfully, we would point
S.W.2d at 104. Subsection (a) is thus out that the term "mandatory" is
void. We therefore hold that mandatory not used in the passage. Since
remittitur provisions of 22.16(a) are no remittitur was mandatory by virtue
longer valid. Remittitur may instead be of the time limitations in
done at the trial court's discretion at subsection (c), it follows that it is
anytime before entry of a final no longer mandatory if the time
judgment. 3 TEX. CODE CRIM. PROC. limitations are eliminated. This
ANN. Art. 22.16(d). proposition is further supported by
the use of the discretionary
2 More specifically in Article language "remittitur now may be
22.16(a), the reference made by the done." In the absence of mandatory
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
provisions, we believe that the reference to subsection [*501] (c),
discretionary remittitur as found in an unconstitutional provision.
Article 22.16(d) is the logical Alternatively, 22.16(d), even if read
successor. without reference to subsection (c),
[**9] Additional support for this provides for entry of final judgment.
holding is found in Article 22.16(d). Given this distinction, it is obvious that
Article 22.16(d) permits a trial court, in 22.16(d) should survive even though
its discretion, to remit a bond before the 22.16(a) is invalid.
entry of a final judgment. If subsection Article 22.16(c) violates the
(a) is to be read without reference to the separation of powers provision of the
time limitations of subsection (c), the Texas Constitution because it imposes
trial court would no longer have this time limits which prevent a court from
discretion. The trial court would have to entering a final judgment. Although
remit the amount of the bond upon 22.16(a) does not provide for entry of a
written motion of the surety. Such a judgment of any kind, a reading of
reading would render subsection (d) 22.16(a) to provide for mandatory
impotent. When construing statutes that remittitur at anytime prior to final
appear to be in conflict, the two should judgement would violate the separation
be harmonized where possible. TEX. of powers provision. Such a reading
GOV'T CODE ANN § 311.025(b); Ex would statutorily mandate a trial court to
Parte Choice, 828 S.W.2d 5, 7 remit a bond at anytime prior to entry of
(Tex.Cr.App. 1992); Lindsey v. State, a final judgment, thereby legislatively
760 S.W.2d 649, 654 (Tex.Cr.App. removing a trial court's discretion.
1988); Stanfield v. State, 718 S.W.2d However, enforcement of 22.16(d) does
734, 736 (Tex.Cr.App. 1986). It would not violate the separation of powers
therefore be improper to interpret provision since it leaves discretion in the
22.16(a) in a manner which would trial court to remit a forfeited bond at
remove the discretion given to the trial anytime prior to entry of a final
court in Article 22.16(d). judgment.
Furthermore, a most important We pause here to answer Judge
distinction can be made between Campbell's concerns. He argues [**11]
22.16(a) and 22.16(c) which in his dissent that if 22.16(a) is invalid
demonstrates that discretionary because of the reference to Article
remittitur should continue. Contrary to 22.16(c), 22.16(d) must also be invalid
the position advocated by the dissents, because it too utilizes 22.16(c). We
subsection (a) does not have a provision would distinguish 22.16(d) by pointing
for any kind of judgment [**10] to be out that, unlike 22.16(a), 22.16(d) is a
entered. Final judgment under discretionary provision. Article 22.16(d)
subsection (a) can only be entered via provides:
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
After the expiration of the time limits In our view, Article 22.16(a) cannot
set by Subsection (c) of this article and have any effect without utilizing the
before the entry of a final judgment invalid provisions of 22.16(c). We
against the bond, the court in its therefore hold that Article 22.16(a) is
discretion may remit to the surety all or void; however, this subsection is not
part of the amount of the bond after controlling in the disposition of the case
deducting the costs of court, any at bar.
reasonable costs to the court for the We now turn to the instant case. The
return of the principal, and the interest facts before us in this matter are almost
accrued on the bond amount as provided identical to those in Makeig v. State, 830
by Subsection (e) of this article. S.W.2d 956 (Tex.Crim.App. 1992),
Unlike 22.16(a), 22.16(d) can be read adopting opinion 802 S.W.2d 59
absent the reference to 22.16(c) without (Tex.App. - Amarillo 1990). In Makeig,
a separation of powers problem that is a judgment nisi was entered on June 19,
encountered with 22.16(a). When 1989 after the principal failed to appear
22.16(d) is so read, remittitur remains in court on a felony offense. Id. at 60.
discretionary with the court anytime Final judgment was then entered
before final judgment. It does not approximately three months later.
become mandatory at any time after [**13] Id. at 61. The appellant made a
forfeiture as it does when 22.16(a) is motion for remittitur of a $ 50,000 bond
read without reference to the 22.16(c) approximately one month after final
timeframes. judgment was entered. Id. at 61. The
As we have said previously in this trial court granted the appellant's motion
opinion, subsection (a) does not provide and returned $ 25,000, less costs of suit,
for any type of judgment [**12] to be even though the motion was made after
entered. Consequently, mandatory final judgment. Id. at 61.
remittitur could continue in perpetuity if In reviewing the remittitur, the Court
the subsection (c) timeframes are not of Appeals held that the trial court did
utilized. If any of the five conditions not err by entering final judgment before
under 22.16(a)(1)-(5) (principal the expiration of the time frames in
incarcerated in county in which the Article 22.16(c) since this subsection of
prosecution is pending, principal the statute had previously been held
deceased, etc.) are ever met, the trial unconstitutional by this court. Id. at 61-
court would be forced to remit the bond 62. Appellant also argued that the trial
no matter when the condition is court erred by failing to apply the
satisfied. Given that mandatory discretionary remittitur portion of the
remittitur was originally intended to statute, Article 22.16(d). Id. at [*502]
occur within a limited time, we do not 62. The Court of Appeals correctly
believe this was the intended result. recognized that 22.16(d) directs
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
discretionary remittitur when final remit the $ 1,500 bond in the instant
judgment has not been entered. Id. Since case was an abuse of this discretion.
final judgment had already been entered, In determining whether there has
the Court of Appeals held that 22.16(d) been an [**15] abuse of discretion, it
did not apply. Id. must be determined if the court acted
The Court of Appeals found support without reference to any guiding rules
in two areas for the trial court's decision and principles, or, in other words,
to partially remit the bond. First, the whether the court acted arbitrarily or
Court of Appeals held that since the unreasonably. Makeig, 802 S.W.2d at
motion for remittitur had [**14] been 62; Montgomery v. State, 810 S.W.2d
made within 30 days of the judgment, it 372, 380 (Tex.Crim.App. 1990). Article
was within the trial court's plenary 22.17 contains no guidelines for the
power to reform the judgment. exercise of the court's discretion.
Tex.R.Civ.Pro. 329(b). Additionally, the Makeig, 802 S.W.2d at 62.
Court of Appeals held that the power to An abuse of discretion may exist
partially remit the bond was also found when there is a showing of sufficient
in Article 22.17, TEX. CODE CRIM. cause for the accused's failure to
PROC. ANN. This article provides for a comply. See Makeig, supra at 62.
two year special bill of review that However, mere subsequent appearance
enables a surety to request, on equitable by the accused is not sufficient cause for
grounds, the reform of a final judgment complete remission of the forfeiture. Id.,
and remittitur of the bond amount. at 62. Sufficient cause is generally a
Under this Article, the decision to grant showing that the party did not break his
or deny the bill is entirely within the recognizance intentionally with the
discretion of the trial court. The request design of evading justice, or without a
may be granted in whole or in part. Art. sufficient cause or reasonable excuse,
22.17(a). such as unavoidable accident or
In the instant case, final judgment inevitable necessity preventing his
was entered on February 7, 1990. appearance. Id., at 62-63. Although
Appellant did not make a motion for resulting extreme hardship on the surety
remittitur until March 6, 1990. Since may be considered, a balancing
final judgment had already been entered, consideration may be whether
discretionary remittitur under article compensation was received by the surety
22.16(d) did not apply. However, the for taking the risk. Id., at 62-63. While
court's decision to remit part of the bond not seeking to punish the surety for
was within its power under [**16] the principal's failure to appear,
Tex.R.Civ.Pro 329b and Art. 22.17 Tex. the law does contemplate that such
Code Crim. Pro. We must now noncompliance will result in forfeiture
determine whether the decision to not of the bond amount. Id. These factors,
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
material to the court's decision before charge. Under these circumstances, we
final judgment, continue to be pertinent cannot say that it was an abuse of
while the judgment is subject to the discretion for the trial court to deny
court's plenary powers of reformation. appellant's motion to remit the $ 1,500
Id., at 63. bond.
In Makeig, the Court of Appeals Since the partial remittitur was
found that there had not been a showing clearly within the power of the court and
of sufficient cause or reasonable excuse there was no abuse of discretion in the
for the accused's absence. Makeig, exercise of this power, the judgment of
supra at 63. Since the trial court the Court of Appeals is reversed and the
remitted $ 25,000, less costs, of a $ judgment of the trial court is affirmed.
50,000 bond, the Court of Appeals could On the issue presented for our review,
not find an abuse of discretion. Id. In we hold Article 22.16(a)
doing so, the Court of Appeals found the unconstitutional because it relies on the
following facts important: 1) the trial invalid provisions of 22.16(c).
court had remitted more than seven WHITE, Judge
times the surety's actual costs ($ 3,475)
in attempting to locate her client; 2) (Delivered February 3, 1993)
there had been no showing of sufficient En Banc
cause for the principal's absence; 3) the
principal had not been apprehended CONCUR BY: CLINTON;
through the efforts of the surety; and, 4) CAMPBELL (In Part)
the surety had received compensation
for the risk it endured under the bond. CONCUR
Id.
CONCURRING OPINION ON
In the instant case, the STATE'S PETITION FOR
appellant/surety has not demonstrated DISCRETIONARY REVIEW
that any costs were incurred in
Because Article 22.16(c)(2),
attempting to locate [**17] the
V.A.A.C.P., "requires that the Judiciary
principal. There is no evidence from the
refrain from exercising [**18] a part of
record that there was sufficient cause for
its core power for a period of a year and
the principal's absence on appearance
a half," and thus "unduly interferes with
day. Additionally, there is no evidence
the Judiciary's effective exercise of its
that [*503] the principal was
constitutionally assigned power," the
apprehended as the result of the efforts
Court held it invalid under Article II, §
of the surety. While there is no evidence
1, Constitution of The State of Texas, in
of the amount of the bonding fee
Armadillo Bail Bonds v. State, 802
assessed by surety against the principal,
it is unlikely that it was done free of
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
S.W.2d 237, at 241 (Tex.Cr.App. 1990). court shall . . . ." First, he recalled the
1
settled rule that "if one part of a statute
is held unconstitutional, the remainder of
1 Conforming to procedure the statute continues to be valid;" he
prescribed in germane provisions then noted that "subsection (a) is
of Chapter Twentytwo, the trial contingent upon the time limitations
court entered judgment nisi, surety established in subsection (c), and thus
answered to show cause, the court has no effect without the invalid
found no good cause and made the provisions." Drawing from a recent
judgment final -- all prior to opinion of this Court that "the remainder
expiration of eighteen months; of the statute must be sustained if it is
surety filed a motion for new trial complete within itself and capable of
relying on the bar in Article being executed in accordance with the
22.16(c)(2), and the trial court intent wholly independent of that which
denied relief. The Dallas Court of has been rejected," Judge Miller
Appeals affirmed the judgment on concluded [**20] for the Court:
the ground that the prohibition is
invalid under Article II, § 1. ". . . Because subsection (a) cannot be
Armadillo Bail Bonds, supra, at executed or have any effect without
238. As reported in the text above, utilizing the provisions of subsection (c),
this Court agreed and affirmed the we hold that the portion of Art. 22.16(a),
judgment of the court of appeals. V.A.C.C.P., utilizing subsection (c) is
Because Article 22.16(c)(1), invalid under article 2, § 1 of the Texas
V.A.C.C.P., "prohibits [**19] the court Constitution. [note omitted]. Thus,
from entering a final judgment in such a remittitur now may be done anytime
case for a nine month period," the Court between forfeiture and entry of a final
extended the reasoning and holding in judgment."
Armadillo Bail Bonds, supra, to
misdemeanor cases, and held subsection Id., at 164. 3 While it is not free from
(c) (1) unconstitutional as well, in State doubt, since the Court announced at the
v. Matyastik, 811 S.W.2d 102, at 104 outset [*504] that it was finding
(Tex.Cr.App. 1991). 2 Turning to "Article 22.16(a) and (c)(1)
determine "whether the same is true of unconstitutional," id., at 102, we may
Art. 22.16(a)," for the Court, Judge take the underscored sentence to mean
Miller underscored the pertinent "discretionary" remittitur, taking into
statutory language under consideration, account whether one or more
viz: "(a) After forfeiture of bond and enumerated conditions in the remainder
before the expiration of the time limits of subsection (a) is satisfied. See also
set by Subsection (c) of this article, the Article 22.13, V.A.C.C.P.
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
That is to say, the court of
2 As in Armadillo Bail Bonds so appeals erred in upholding
also in State v. Matyastik, all constitutionality of the mandatory
proceedings from forfeiture of bail remittitur provision in subsection
to grant of remittitur occurred (a), and the trial judge erred in the
within the time limits set by belief that the court was statutorily
subsection (c). Unlike the outcome mandated to order remittitur in full
of proceedings in Armadillo Bail before expiration of the nine month
Bonds, however, in State v. limitation.
Matyastik, supra, after the trial Because we reviewed the "decision"
court rendered judgment nisi, later of the court of appeals in Makeig v.
made the judgment final and surety State, 802 S.W.2d 59 (Tex.App. --
moved for remittitur relying in part Amarillo 1990), found its "reasoning is
on Article 22.16(a)(1), the trial sound" and "adopt[ed] the opinion as our
court ordered remittitur in full; the own without further comment" in
State filed a motion to vacate the Makeig v. State, 830 S.W.2d 956
order which the trial court denied. (Tex.Cr.App. 1992), perhaps without
The Waco Court of Appeals found noticing that the Amarillo Court of
Article 22.16 "constitutional in its appeals did not have whatever guidance
entirety," and affirmed the [**22] might have been provided by our
judgment below. Matyastik, supra, opinion in State v. Matyastik, supra, as
at 102-103. the majority here seems to suggest in its
All emphasis here and opinion at 3, n. 1, we may well have
throughout this opinion is mine "rushed to judgment." For reasons
unless otherwise indicated. developed in the margin, however, my
[**21] view is that the Makeig court of appeals
3 In his separate opinion Judge did not implicate validity or application
Campbell characterizes our holding of Article 22.16(d) in any manner
as stated "cryptically," following inconsistent with our prior cases,
"somewhat oblique discussion." including Matyastik. 4
Slip opinion at 2 and 3,
respectively. My own view is that 4 In Makeig v. State, supra, the
whatever ambiguity may be seen in surety on a $ 50,000 bond was
the formulation is removed by the certain enough that the principal
judgment of this Court, viz: would not appear for a scheduled
"The judgment of the court of hearing that he spent some $ 3,000
appeals [affirming that of the trial to find and surrender him under a
court] is reversed and the remittitur warrant pursuant to Articles 17.16-
order of the trial court is vacated." 17.19, V.A.C.C.P., but was not
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
successful; the trial court forfeited the time limits set by Subsection
bail, entered judgment nisi in June (c) and before entry of final
and made the judgment final on judgment against the bond." The
September 8; principal was later court of appeals overruled that
arrested in another state and surety point, reasoning that since eighteen
paid the costs to transport back to months had not expired and final
the county of prosecution judgment had already been entered
September 21; principal plead before the remittitur hearing,
guilty and was sentenced to ten therefore, "by their terms,
years confinement; on October 5, subsections (d) and (e) were not
surety moved for mandatory applicable to the present
remittitur after forfeiture in full, circumstance, and the court's
less costs and interest pursuant to actions cannot be judged by their
Article 22.16(a)(1) and (2); on provisions." Id., at 62.
November 2, the trial court granted Fourth, and alternatively, in
partial remittitur in the sum of $ abusing its discretion by refusing to
25,000, less costs of suit. Id., at 60- order sufficient remittitur. The
61. court of appeal found that neither
On appeal, as well as point of subsections (a) or (d) applied, and
error two claiming the bond was overruled that point for reasons
invalid, surety contended the trial dehors the statute, viz: the trial
court erred in three other court retained "plenary power to
particulars: reform its judgment" under
First, in entering final judgment Tex.R.Civ.Pro. 329b (a), (e) and
earlier than eighteen months after (g), and the motion or remittitur
forfeiture, on impliedly finding being filed timely may be treated
Article 22.16(c)(2) unconstitutional as a special bill of review under
on the strength of Armadillo Bail Article 22.17, V.A.A.C.P.; on
Bonds v. State, 772 S.W.2d 193 either basis, the trial court did not
(Tex.App. -- Dallas 1989). The abuse its discretion. Id., at 62-63.
court of appeals overruled that Therefore, in affirming the
point on the basis of our decision in judgment below the court of
Armadillo Bails Bonds, supra. Id., appeals did not treat the
at 61-62. constitutional viability of Article
Third, in refusing to remit a 22.16(d) and (e), although the State
portion of forfeited bail in took the position both are invalid
accordance with Article 22.16(d) (Appellee's Brief on PDR, at 2).
and (e), i.e., "after the expiration of
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
[**23] Therefore, as I understand For those reasons I join the judgment
the legal consequences of those three of the Court.
decisions of this Court, the following CLINTON, Judge
parts of Article 22.16 have been
declared unconstitutional: all but the DELIVERED: February 3, 1993
enumerated conditions in subsection (a); EN BANC
5
all of subsection (c); the portion of
subsection (d) reading "After the DISSENT BY: CAMPBELL (In Part);
expiration of the time limits set by BAIRD
Subsection (c) of this article and . . . ."
DISSENT
5 That part of the qualifying
condition reading "After forfeiture CONCURRING AND DISSENTING
of a bond" is not included in the OPINION ON STATE'S PETITION
language declared unconstitutional FOR DISCRETIONARY REVIEW
in Matyastik is of no practical
CAMPBELL, J.
moment. The issue of remittitur
cannot arise until after bail is We granted review of this cause,
forfeited. See, e.g., Articles 22.01, pursuant to Texas Rule of Appellate
22.02, 22.10, 22.11, 22.125 and Procedure 200(c)(1), to determine
22.14. whether the court of appeals erred in
holding that the trial court erred in
Accordingly, before entry of final
refusing to remit the full amount of a
judgment the trial court in its discretion
bond to the surety. I agree with the
may remit "all or part of the amount of
majority's conclusion that the court of
the bond," after making appropriate
appeals erred, but I disagree completely
deductions prescribed by statute. Article
with the majority's reasoning.
22.16(d) and (e).
I first review the relevant facts.
[*505] In the instant cause,
Thomas Earl Marks, charged in
however, appellant did not move for
Robertson County with a misdemeanor,
remittitur until after the judgment nisi
failed to appear for trial on December 7,
[**24] was made final. In this situation
1989. On that date the trial court
alternative remedies noticed by the court
rendered judgment nisi for the State and
of appeals in Makeig v. State become
against Marks and his surety, Vernon
available, and the majority opinion
Lyles, jointly and severally, in the
properly addresses them and ultimately
amount [**25] of Marks' bond. On
concludes the trial court did not abuse its
December 16, 1989, Marks was re-
discretion in refusing remittitur.
arrested and placed in the Robertson
County Jail. On February 7, 1990, the
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
trial court rendered final judgment remained an effective statute except for
against the bond. On March 6, 1990, its reference to subsection (c). The court
Lyles filed a motion to modify or vacate of appeals was surely wrong, however,
the final judgment and a second motion when it concluded that Lyles was
for remittitur of the full amount of the entitled to remittitur even though he
bond under Texas Code of Criminal filed his motion for remittitur after the
Procedure article 22.16(a). The trial trial court rendered final judgment.
court denied both motions. Article 22.16 provides in relevant
The Tenth Court of Appeals part:
subsequently reversed, holding that the (a) After forfeiture of a bond and
trial court "should have vacated or before the expiration of the time limits
modified its February 7, 1990, [final] set by Subsection (c) of this article, the
judgment and granted remittitur in court shall, on written motion, remit to
accordance with art. 22.16(a)." Lyles v. the surety the amount of the bond . . . if:
State, 814 S.W.2d 411, 412 (Tex.App.--
Waco 1991). The court of appeals, citing (1) the principal is incarcerated in the
State v. Matyastik, 811 S.W.2d 102 county in which the prosecution is
(Tex.Cr.App. 1991), reasoned first that, pending;
except for its reference to subsection (c), ***
Article 22.16(a) remained an effective
(c) A final judgment may be entered
statute requiring remittitur if requested
against a bond not earlier than:
before final judgment. The court
reasoned second that Lyles was entitled (1) nine months after the date the
to remittitur under Article 22.16(a) forfeiture was entered, if the offense
"even though (he) presented his request [**27] for which the bond was given is
for remittitur after final judgment a misdemeanor; or
because (1) his response to the (State's) (2) 18 months after the date the
motion for summary judgment made forfeiture was entered, if the offense for
[**26] such a request and (2) at the time which the bond was given is felony.
final judgment was entered he could
have relied on the nine-month-delay (d) After the expiration of the time
provision of article 22.16(c)(1) which limits set by Subsection (c) of this article
was declared to be unconstitutional at a and before the entry of final judgment
later date." Lyles v. State, 814 S.W.2d at against the bond, the court in its
412 (emphasis in original). discretion may remit to the surety all or
part of the amount of the bond. . . .
I believe it is quite plain that the
court of appeals was only half right. [*506] (Emphasis added.) We have
That is, the court of appeals was correct held that subsection (c) is violative of
when it determined that Article 22.16(a) our state constitution's separation of
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
powers provision and is, therefore, of no its reference to subsection (c) and that
effect. State v. Matyastik, 811 S.W.2d remittitur is now discretionary with the
102; Armadillo Bail Bonds v. State, 802 trial court before final judgment under
S.W.2d 237 (Tex.Cr.App. 1990). We subsection (d). There are several
have also held, albeit cryptically, that problems with the majority's analysis,
however. First, Matyastik, despite its
subsection (a) is contingent upon the somewhat oblique discussion, explicitly
time limitations established in held that only "the portion of Art.
subsection (c), and thus has no effect 22.16(a), V.A.C.C.P., utilizing
without the invalid provisions. Recently subsection (c) is invalid." The balance of
we stated in [Ex parte] Jones [803 Article 22.16(a) remains valid and is not
S.W.2d 712, 714 (Tex.Cr.App. 1991)] unconstitutional, [**29] at least not
that ". . . should part of the bill be held under any theory yet advanced by the
invalid . . . the remainder of the statute majority. Second, there was no
must be sustained if it is complete in discussion in Matyastik concerning
itself and capable of being executed in discretionary remittitur under subsection
accordance with the [legislative] intent (d). Indeed, subsection (d) was never
wholly independent of that [**28] mentioned in our opinion. Third,
which has been rejected." Because subsection (a)'s constitutional infirmity--
subsection (a) cannot be executed or its utilization of subsection (c)--applies
have any effect without utilizing the with at least equal force to subsection
provisions of subsection (c), we hold (d). Thus, if subsection (a) falls because
that the portion of Art. 22.16(a), of its reference to subsection (c), then
V.A.C.C.P., utilizing subsection (c) is subsection (d) must surely fall as well.
invalid under Article 2, § 1 of the Texas There is no escaping this conclusion.
Constitution. Thus, remittitur now may In my view, we must have been
be done anytime between forfeiture and referring in Matyastik to mandatory
entry of a final judgment. remittitur under the surviving portions of
Article 22.16(a) and (d). This
State v. Matyastik, 811 S.W.2d at 104 interpretation of Matyastik is the only
(emphasis added; citation and some one that is both coherent and gives some
punctuation omitted). Given the effect to the legislative scheme
principle of stare decisis, the disposition embodied in Article 22.16.
of the case at bar must certainly depend
in large part on what we meant in As it was originally conceived by the
Matyastik. Legislature, Article 22.16 created a
scheme in which sureties on bail bonds
The majority concludes from its had an absolute right to remittitur for a
interpretation of Matyastik that lengthy period of time after forfeiture if
subsection (a) is void in toto because of one of the conditions specified in
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
subsection (a) was met. Following that "it is well settled that if one part of a
set period of time--defined in subsection statute is held unconstitutional, the
(c)--discretionary remittitur was still remainder of the statute continues to be
possible under subsection [**30] (d) if a valid." Indeed, this principle of statutory
request was made before final judgment. construction has been codified at Tex.
1
Thus, the Legislature apparently [*507] Gov't Code Ann. § 311.032(c)
believed that it was good public policy which provides:
to give bailbondsmen a strong incentive In a statute that does not contain a
to return their principals to custody provision for severability or
before final judgment. We can still give nonseverability, if any provision of the
some effect to this legislative scheme if statute or its application to any person or
we construe our holding in Matyastik to circumstance is held invalid, the
refer to mandatory remittitur. Because of invalidity does not affect other
the majority's failure to do so, I provisions or applications of the statute
respectfully dissent. that can be given effect without the
invalid provision or application, and to
1 I concur in the result reached this end the provisions of the statute are
by the majority because Lyles filed severable.
his motion to vacate the judgment
and for remittitur approximately (EDITOR'S NOTE: TEXT WITHIN
thirty days after the entry of final THESE SYMBOLS [O> without dissent,After
3 Judge Campbell believes the forfeiture of a bond and before the entry
court of appeals "was surely of a final judgment before the expiration
wrong, however, when it of the time limits set by Subsection (c)
concluded that Lyles was entitled of this article,(c) A final judgment may be
Dissenting), slip op. pg. 2 entered against a bond not earlier than:
(Emphasis in original.). I disagree. (1) nine months after the date the
The record reflects the trial judge forfeiture was entered, if the offense for
entered a judgment on February 7, which the bond was given is a
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
misdemeanor, or(2) 18 months after the (e) No change.
date the forfeiture was entered, if the Because the majority destroys rather
offense for which the bond was given is than saves art. 22.16, I respectfully
a felony.After the expiration of the time
limits set by Subsection (c) of this article (Delivered February 3, 1993)
and before the