concurring in part and dissenting in part.
The majority today has correctly decided the application of summary judgment proof facts to bail bond forfeiture in general and specifically regarding notice to the principal. I therefore agree with the opinion and join that portion of the opinion. I disagree with the majority’s failure to address and dispose of appellant’s point of error regarding summary judgment proof of the calling of the principal’s name at the courthouse door and write in dissent on this issue.
The appellant presents a material fact issue defeating summary judgment on the matter of calling the defendant’s name distinctly at the courthouse door. Until the Legislature changes it, the statute requires that the principal’s name be called at the courthouse door, period. Article 22.02 The State presented a statement from the bailiff that the name was called at the courthouse door. Appellant presented deposition testimony of the same bailiff stating that he in fact did not call the principal’s name outside the courthouse door, but instead in the hallway outside the courtroom door on the sixth floor of the courthouse.
The court of appeals reasoned the State showed evidence of substantial compliance, citing Tocher v. State, 517 S.W.2d 299 (Tex.Cr.App.1975), Bennett v. State, 394 S.W.2d 804 (Tex.Cr.App.1965), and Deem v. State, 170 Tex.Crim. 564, 342 S.W.2d 758 (App.1961), all of which concluded for varying reasons that the calling of a principal’s name outside the courtroom as opposed to the courthouse door was in substantial compliance with Article 22.02. Appellant asserts that what is substantial compliance is a fact question and that the cases relied upon are distinguishable. I agree.
.Viewing evidence in light of the non-moving party, appellant has raised a material fact issue entitling him to overcome summary judgment. Cases construed by this Court to date are all distinguishable in that we have not had before us this issue on summary judgment where the appellant has controverting evidence that the name was not called pursuant to statutory requirements. Substantial compliance has been held to mean name “called in the courthouse lobby within 12 feet of the outer door ... the place from which defendant’s name was called [being] within such reasonable distance of the court house door as under the circumstances to be in substantial compliance with the law requiring that his name be called at the door.” See Caldwell, et al. v. State, 136 Tex.Cr.R. 524, 126 S.W.2d 654, 656 (1939) and parallel cites.1
*885Other cases have been decided against the principal by reasoning that where there is no showing otherwise, then compliance with the statute is presumed. See Swaim v. State, 498 S.W.2d 188, 191-92 (Tex.Cr.App.1973), where it was held that when the judgment nisi stated the principal’s name was called at the courthouse door, and such State’s evidence was not rebutted then a fact issue is not raised in appearance bond forfeiture.2 In short, Tocher, Bennett, Deem, and Swaim all conclude that where there is no evidence that the name was not called at the courthouse door, then a principal cannot discharge the burden of showing that fact so as to overcome the presumption that the recitation of this requirement in the judgment nisi was in accordance with Article 22.02.
To date, cases have stopped short of distinguishing courthouse door from courtroom door and instead have supported the wording of the statute’s requirement of courthouse door. When the argument against the practice of calling the name at the courtroom door is raised, this Court’s opinions have construed substantial compliance to mean either: (1) reasonable distance to the courthouse door, as opposed to the courtroom door; or (2) lack of evidence to show otherwise.
The fact issue raised in this summary judgment proceeding does not fit either category. The controversy reveals a judgment nisi showing evidence of compliance with calling the name at the courthouse door countered by deposition testimony of the same witness that the name was not called at the courthouse door, but at the courtroom door or hallway on the sixth floor of the courthouse.3 To ignore appellant’s proof and assert substantial compliance ignores the standard of review for summary judgment proceedings. “A judgment nisi is prima facie proof that the statutory requirements have been satisfied and the burden is on the defendant to affirmatively show otherwise. Once a prima facie case has been established, the defendant must then prove that one of the statutory requirements of the judgment nisi has not been satisfied.” At page 881. In summary judgment proceedings, “ ‘[ejvery reasonable inference from the evidence must be indulged in favor of the non-movants and any doubts resolved in their favor. See *886Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984).’ While the moving party may make their motion with or without supporting affidavits, the nonmoving party is consequently required to go beyond the pleadings and by their own affidavits or other evidence designate specific facts showing that there is a genuine issue for trial.... The nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” At pp. 881-882. A consequence of the majority opinion is to relegate the statutory requirement of “calling the name at the courthouse door” to a fiction. I fail to see how the facts herein may be harmonized with the reasoning of this Court’s explanation of substantial compliance as stated in the Caldwell opinion.
The cases of Tocher, Bennett, and Deem, were not summary judgment cases and therefore had a different standard of review. In Tocher, 517 S.W.2d at 300-301, the bailiff testified that he did not remember calling the name and did not know if it was done, that another court officer often performed the duty of calling the names and could have done so in this case. The Court held that there was no evidence that the other officer did not call the names and therefore nothing to controvert the judgment nisi. It reasoned that unless it appears to the contrary, the recitals in the judgment nisi are presumed to be correct. Herein, it is undisputed that the name was not called at the courthouse door.
In Deem, 342 S.W.2d at 759, and Bennett, 394 S.W.2d at 807, the records reflected that the principal’s name was called outside the door of the courtroom but lacked any evidence that the principal’s name was not called at the courthouse door. Therefore, in light of the judgment nisi and the lack of any proof that the principal’s name was not called at the courthouse door, the court held that the evidence was sufficient to show substantial compliance with Article 22.02.
Viewing the evidence herein in favor of the nonmovants, I find it difficult to conclude anything other than that the bailiff’s deposition testimony raises a controverted material fact issue. In a summary judgment proceeding, the court’s role is not to rule on the evidence based upon which party is likely to prevail; it is to decide whether a material fact exists which would entitle the nonmovant to a trial on the merits. I would therefore hold that appellant’s evidence was sufficient to defeat summary judgment and sustain this ground for review also. See Montgomery v. Kennedy, supra at 311, and Celotex Corp. v. Catrett, 477 U.S. at 319, 106 S.Ct. at 2551. Because the majority does not do so, I respectfully dissent.
. Caldwell, and seven like cases were decided on the same date applying the same facts: i.e., the names of the forfeiting defendants were called in the lobby within 12 feet of the door. The Deem opinion which is the oft cited authority for this proposition receives its authority from Caldwell. We could find no cases in our jurisprudence which address more directly the meaning of substantial compliance with the calling of the names at the court house door. The detailed facts of Caldwell and parallel cases established the following:
The court room of the Criminal District Court is located on the first floor of what is known as the Criminal Court Building. The outer door to said building is a double door. Immediately outside the court room is a large lobby about seventy-five feet long and twenty or thirty feet wide. This lobby is used by the public at all times and by jurors, prospective jurors, witnesses and all parties attending the Criminal District Court and those interested in litigation there. The door from the court room opens *885into this lobby. Between the court room door and the outer door to the Criminal Court Building is a cigar stand. The deputy sheriff was directed by the presiding judge to go to the court house door and call &e defendant’s name three times. He went to the cigar stand and within four steps (12 feet) of the outer door of the court house and raising his voice called Caldwell by name three times. Appellant contend that calling Caldwell's1 name as was done was not a compliance with the statutory requirement that appellant’s name be called ‘at the court house door.’ ... [Where appellants cite authority for the definition of courthouse door using real estate sales as examples, this Court writes] the articles mentioned [Art. 2310, then Art. 3809, R.C.S.] defined 'courthouse door’ to be 'either of the principal entrances to the house provided by the proper authority for the holding of the district court,’ etc. The sale was made at the door of a house used for holding the county court and the commissioner’s court. The opera house had been designated as the place for holding district court, which was some three hundred yards from the place of sale. The sale was held void for not having been made at the place designated.
On the other hand, the Court reasoned that the legislature did not take 'at the courthouse door' to be an exacting and literal construction.
Webster, defining the word ‘at,’ says, 'Primarily this word expresses the relation of presence, nearness in time or place or direction towards. * * * It is less definite than "in” or "on"; "at” the house may be "in” or "near” the house.’ See Webst. Diet.
It is from this discussion that the Caldwell Court then concludes that 12 feet from the door was within a reasonable distance to be in substantial compliance requiring the name be called at the door.
. Emphasis is that of author unless noted otherwise.
. There is an appreciation for what is an obvious evolution of the courthouse over some 100 years since the inception of this statute and its predecessors. The courthouse structure with its multiple floors and courtrooms today is simply not the same as it was in the late nineteenth century when buildings such as the opera house were used as district courthouses. See Boone & Scarbrough v. Miller, 86 Tex. 74, 23 S.W. 574 (Tx.1893) and Caldwell, supra 126 S.W.2d at 655. Perhaps the courtroom door is now the more reasonable place to call the absent principal’s name. But it is not the courthouse door. We are bound by statutory requirements and the plain reading of Article 22.02 that the calling should be within some reasonable distance of the courthouse door.