Dallas v. State

PRICE, J.,

concurring.

I concur in the judgment only and write separately to explain my reasons for doing so.

Appellant was convicted of cruelty to animals, a misdemeanor. The jury assessed punishment at one year confinement and Appellant appealed. As a condition of his appeal bond, the trial court ordered Appellant to refrain from engaging in the business of training and kenneling dogs. Appellant brought an accelerated appeal pursuant to Tex.Code Crim. Proc. Ann. art. 44.04(g) (Vernon Supp.1998), disputing the trial court’s authority to place the condition on his appeal bond.1 The Court of Appeals held the trial court was without authority to place conditions on the appeal bond for Appellant’s misdemeanor conviction. Dallas v. State, 945 S.W.2d 328 (Tex.App.-Houston [1 st Dist.] 1997, pet. granted). We granted the State’s petition for discretionary review to address this holding.

The majority’s basis for its analysis is that “... absent legislative intent to the contrary, a trial court has inherent power in misdemeanor and felony appeals to impose conditions on bail that directly or indirectly relate to the purpose of assuring the defendant’s continued appearance.” Ante, at 277 (emphasis added). However, the cases cited by the majority do not support this proposition.

Estrada v. State, 594 S.W.2d 445 (Tex.Crim.App. [Panel Op.] 1980) dealt with conditions placed upon an appeal bond, pursuant to an appeal of a conviction for possession of *281heroin, a felony. Easton v. Rains, 866 S.W.2d 656 (Tex.App.-Houston [1 st Dist.] 1993, no pet.) dealt with conditions placed upon an appeal bond, pursuant to an appeal of a conviction for felony theft. Rodriguez v. State, 744 S.W.2d 361 (Tex.App.- Corpus Christi 1988, no pet.) dealt with conditions placed upon an appeal bond, pursuant to an appeal of convictions for aggravated assault, a felony. Neither the holdings nor the language used in these cases support the notion that courts have the inherent power, in misdemeanor appeals, to impose conditions on bail that relate to the purpose of assuring a defendant’s continued appearance. Furthermore, in both Estrada and Rodriguez, the bond conditions were placed pursuant to Art. 44.04(c), which expressly provides for the imposition of reasonable conditions; see Estrada, 594 S.W.2d at 446-447; Rodriguez, 744 S.W.2d at 362.2 Thus, the courts in those cases were not necessarily acting under inherent authority, but under an express legislative grant of authority. Therefore, despite the assertions of the majority to the contrary, the initial issue in this case is not “... whether the Legislature has taken away trial courts’ inherent authority to impose conditions of bail in misdemeanor appeals or whether the Legislature has intended to prohibit trial courts from exercising their inherent authority to impose conditions of bail in misdemeanor appeals,” ante, at 278; the issue is whether trial courts have a specific grant of legislative authority to impose conditions of bail in misdemeanor appeals.

Rules for fixing bail are governed by Chapter 17. Of the Code of Criminal Procedure. Ex parte Davila, 623 S.W.2d 408, 409 (Tex.Crim.App.1981). Once an accused has been found guilty and the appellate process begins, the application of Chapter 17 is “modified somewhat and supplemented by additional relevant considerations reflected by the provisions of Article 44.04 ...” Id. at 410. The very language of Art. 44.04(a) reveals that a misdemeanant is entitled to release on reasonable bail pending appeal. Thus, the trial court must consider an application for bail, and it must do so in accordance with Art. 44.04. Id.; see also Ex parte Byers, 612 S.W.2d 534, 536 (Tex.Crim.App.1980) (observing that Art. 44.04 confers a general right to bail after conviction, except in certain circumstances).

If the language of Art. 44.04 is clear and unambiguous, courts must give effect to its plain meaning. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). If its meaning is not clear, however, then this Court may consider extratextual factors to interpret the statute. Id. at 785-86. When a felony conviction is being appealed there is express statutory authority to impose reasonable conditions of bail. Art. 44.04(e); Byers, 612 S.W.2d at 536; Davila, 623 S.W.2d at 409; Swinnea v. State, 614 S.W.2d 453 (Tex.Crim.App.1981). There is no express statutory provision authorizing general conditions of bail pending appeal of a misdemeanor conviction.3 See Art. 44.04(a). We have previously held that “the express mention or enumeration of one person, thing, consequence or class is tantamount to an express exclusion of all others.” State v. Roberts, 940 S.W.2d 655, 659 (Tex.Crim.App.1996); Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App.1979). The lack of express statutory authority to impose conditions on misdemeanor appeal bonds appears to be intentional, particularly in light of the express grant of authority to do so in felony cases. Accordingly, the inevitable conclusion is that a trial court is without general authority to impose conditions on a misdemeanor appeal bond when there is no express statutory authority to do so.4 As the *282majority does not reach this conclusion, I cannot join its opinion.

The majority vacates the judgment of the Court of Appeals and remands the cause to the trial court for redetermination of bail. I would simply affirm the judgment of the Court of Appeals, which would result in remand to the trial court for redetermination of bail. Based on the foregoing, I concur only in the judgment of the majority.

. The trial court also set conditions that Appellant: (1) refrain from violating the laws of this state or any other state; (2) report twice a month to the court probation officer; (3) undergo drug and alcohol screening and be tested for drugs by submitting to urinalysis once a month; (4) provide proof of employment or proof that he is seeking employment; (5) pay a $35 per month supervision fee; and (6) remain in Harris County, Texas. Appellant did not contest the trial court's ability to impose these conditions.

.It is true that the Court of Appeals in Easton stated that courts have inherent power to place restrictive conditions on appeal bonds. Easton, 866 S.W.2d at 659. However, as noted above, that decision concerned an appeal of a felony conviction. Furthermore, the Court of Appeals cited Estrada as authority for its assertion; yet, Estrada itself, which dealt with conditions imposed pursuant to Art. 44.04(c), does not support that assertion.

. State constitutional rights are not implicated, as the constitutional right to bail only extends to an accused, pre-conviction. Tex Const. art. I, § 11; Ex parte Lowe, 573 S.W.2d 245 (Tex.Crim.App.1978).

. Such a result would not necessarily mean that trial courts would be wholly without authority to impose conditions on misdemeanor appeal bonds. The State implies that the specific provisions of Chapter 17 may control over the general *282provisions of Art. 44.04, when the conviction appealed is for certain offenses (e.g., a defendant may be required to not communicate with or go near a child victim of certain offenses, as a condition of bond under Art. 17.41). However, the specific provisions of Chapter 17 are not implicated in this case.