ACCEPTED
03-15-00121-CR
5184558
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/6/2015 11:26:48 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00121-CR FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 5/6/2015 11:26:48 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
TOM BENSON,
Defendant-Surety,
Appellant,
vs.
THE STATE OF TEXAS,
Appellee.
Appealed from the County Court at Law Number One
Sitting at Travis County, Texas
Trial Court No. C-1-CV-14-002294
The Honorable Todd Wong, Presiding
APPELLANTS' BRIEF
TOM BENSON
Texas Bar No. 02170500
900 Jackson St., Ste. 750
Dallas, Texas 75202-4461
(214) 742-9898 Telephone
(214) 742-9879 Fax
tomrbenson@gmail.com
APPELLANT PRO SE
IDENTITY OF PARTIES AND COUNSEL
Appellant Counsel (Trial and Appeal)
Tom Benson Pro Se
Texas Bar No. 02170500
900 Jackson St., Ste 750
Dallas, Texas 75202-4461
(214) 742-9898 Telephone
(214) 742-9879 Fax
tomrbenson@gmail.com
Appellee Counsel (Trial and Appeal)
The State of Texas Tim Labadie
Assistant County Attorney
Travis County
Texas Bar No. 11784853
P.O. Box 1748
Austin, Texas 78767-1748
(512) 854-9513 Telephone
(512) 854-4808 Fax
tim.labadie@traviscountytx.gov
ii
STATEMENT CONCERNING ORAL ARGUMENT
Because this appeal contains arguments based upon established law,
Appellant does not believe that oral argument would be helpful to the Court.
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL............................ ii
STATEMENT CONCERNING ORAL ARGUMENT ................... iii
INDEX OF AUTHORITIES .......................................... v
STATEMENT OF THE CASE ...................................... vii
POINTS OF ERROR PRESENTED ................................. viii
STATEMENT OF FACTS ........................................... 1
POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING
THE STATE'S MOTION FOR SUMMARY
JUDGMENT . ................................. 3
POINT OF ERROR 1: ............................................. 3
Standard of Review . ........................................... 3
Argument and Authority . ...................................... 5
STATE PRESENTS PRIMA FACIE CASE ........................ 5
BURDEN SHIFTS TO SURETY ................................ 5
AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5) ........ 6
SURETY'S SUMMARY JUDGMENT PROOF.................... 7
RELIEF GRANTED BY TRIAL COURT......................... 9
CONCLUSION . .................................................. 10
REQUEST FOR RELIEF..................•........................ 10
CERTIFICATE OF COMPLIANCE ................................. 11
CERTIFICATE OF SERVICE ...................................... 12
APPELLANT'S APPENDIX ........................................ 13
lV
INDEX OF AUTHORITIES
CASES
Alvarez v. State, 861 S.W. 2d 878, 881 (Tex. Cr. App. 1992)............ 3, 5, 9
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)
.................................................................. 4
Deckard v. State, 605 S.W.2d 918 (Tex. Cr. App.1980) .................... 5
Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981)................ 5
Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d
41, 47 (Tex.1965) . .................................................. 4
Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995) ... 4
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004) ....... 3
Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984)................. 9
Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974)...................... 4, 5
Palmer v. Enserch Corp., 728 S.W.2d 431, 436 (Tex. App. - Austin 3rd
Dist.1987, writ re.f'd n.r.e. )............................................ 5
Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997) ......... 4
Southwestern Blee. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002)...... 4
Texas Beef Cattle Co. v. Green, 921 S.W. 2d 203, 212 (Tex. 1996)........... 7
Tocher v. State, 517 S.W.2d 299, 301 (Tex. Cr. App.1975) ................. 5
v
TEXAS RULES OF CIVIL PROCEDURE
Tex. R. Civ. P. 166a(c) ........................... .................. 3, 4
TEXAS CODE OF CRIMINAL PROCEDURE
art. 22.10 . ......................................................... 3
art. 22.13(5)(A)(l) . ............................................... 6, 7
Art. 22.13(a)(5)(A) ........................................... 2, 6, 7, 9
art. 22.13(b) .................................................... 6, 10
OTHER AUTHORITY
2 ROY W. McDONALD, TEXAS CIVIL PRACTICE § 9:44, at 378 (1992)
.................................................................. 7
VI
STATEMENT OF THE CASE
Nature of the case. Appellee, the State of Texas, ["State"] sued appellant to
enforce the forfeiture of a bail bond. (CR. 4 ). Appellant, ["Surety"] filed a general
denial and asserted a affirmative defense provided by statute. (CR. 14-15).
Course of proceedings. The State moved for a summary judgment. (CR. 9-
13). The Surety filed a response and provided additional summary judgment
proof. (CR. 16-23).
Trial court disposition. The trial court granted the State's Motion for
Summary Judgment and entered a final judgment on January 21, 2015. (CR. 24-
25).
Vil
POINTS OF ERROR PRESENTED
POINT OF ERROR I
THE TRIAL COURT ERRED BY GRANTING
THE STATE'S MOTION FOR SUMMARY JUDGMENT
viii
NO. 03-15-00121-CR
IN THE COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
TOM BENSON,
Defendant-Surety,
Appellant,
vs.
THE STATE OF TEXAS,
Appellee.
APPELLANTS' BRIEF
STATEMENT OF FACTS
On November 29, 2013, Brian Roy Whipple, date ofbirth 1 XX/XX/XXXX
was released from jail on a bail bond in the amount of $5,000.00 for a
misdemeanor offense, executed by Tom Benson, as Surety. (CR. 4-5). On
February 14, 2014, Mr. Whipple, the defendant and the principal on the bond
executed by the Surety, was required to personally appear in the County Court at
Law No. 7 of Travis County. (CR. 4). He failed to appear as required. (CR. 4).
A judgment nisi was properly issued. (CR. 4). On December 4, 2014, the State
filed its Motion for Summary Judgment and summary judgment proof consisting
1
Date of Birth has been redacted pursuant to Tex. R. Appellant P. 9.
of the bond and the judgment nisi. (CR. 9-13). The State's motion requested a
judgment for the penal sum of the bond $5,000.00 and court costs. After being
properly served with citation, Surety answered2 with a general denial and asserted
an affirmative defense provided by art. 22.13(a)(5)(A) 3 • (CR. 14-15). The Surety
filed a response to the State's Motion again asserting the affirmative defense under
art. 22.13(a)(5)(A) that the Defendant-Principal, Brian Roy Whipple was
incarcerated in the Clark County Detention Center, Las Vegas, Nevada on June 29,
20144 , a jurisdiction within the United States, within 180 days from the date of his
failure to appear, February 14, 2014. (CR. 16-20). The Surety provided additional
summary judgment evidence which was attached to, and incorporated into, his
response, in the form of documentary evidence (CR. 18 ,-i,-i 11 and 12) and (CR.
21-23) and evidence provided by judicial notice. (CR. 18 ,-i,-i 11 and 13). The State
did not file any reply to the Surety's response or summary judgment evidence.
(CR. 1-45). The trial court granted the State's Motion for Summary Judgment and
entered a final judgment against the Surety for $5,000.00 plus costs of court. (CR.
2
Surety filed and Original Answer and a First Amended Answer.
3
All statutory references are to Tex. Code Crim. Proc., unless otherwise noted.
4
The date of birth for Brian Whipple who is the principal on the bail bond and Brian
Whipple who was incarcerated in the Clark County Detention Center, Las Vegas, Nevada are
identical.
2
24-25). No post judgment motions were filed. The Surety timely filed a notion of
appeal. (CR. 26-28). This brief will be timely if filed on or before May 5, 2015.
SUMMARY OF THE ARGUMENT
POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING
THE STATE'S MOTION FOR SUMMARY
JUDGMENT
1) Because the Trial Court was presented an the affirmative defense and
summary judgment evidence supporting every element of the affirmative defense
the Trial Court erred in granting the State's motion.
ARGUMENT
POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING
THE STATE'S MOTION FOR SUMMARY
JUDGMENT
Standard of Review
Summary judgment proceedings in a bail bond forfeiture case are governed
by the same rules as in civil cases. Alvarez v. State, 861 S.W. 2d 878, 881 (Tex.
Cr. App. 1992), citing, art. 22.10 and Tex. R. Civ. P. 166a(c).
The Court reviews the summary judgment de novo. Joe v. Two Thirty Nine
3
Joint Venture, 145 S.W.3d 150, 156 (Tex.2004).
In this traditional summary judgment case, the issue on appeal is whether
the State, as movant, met its summary judgment burden by establishing that no
genuine issue of material fact exists and that the State is entitled to judgment as a
matter oflaw. Tex. R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex.1979). The burden of proof is on the State, and all doubts
about the existence of a genuine issue of material fact are resolved against it.
Southwestern Elec. Power Co., 73 S.W.3d at 215; Science Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San
Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding
whether there is a material fact issue precluding summary judgment, all conflicts
in the evidence should be disregarded and the evidence favorable to the Surety, the
nonmovant, should be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co.,
896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the State's position will not
be considered unless it is uncontroverted. Great Am., supra, 391 S.W.2d at 47.
When a defendant raises an affirmative defense in opposition to a motion
for summary judgment, he must present sufficient summary judgment proof to
raise a fact issue on each element of his affirmative defense. Nichols v. Smith, 507
4
S.W.2d 518, 520 (Tex. 1974); Palmer v. Enserch Corp., 728 S.W.2d 431, 436
(Tex. App. -Austin 3rd Dist.1987, writ ref'd n.r.e.).
Argument and Authority
STATE PRESENTS PRIMA FACIE CASE
The State unquestionably presented a prima facie case in its motion for
summary judgment. The State was required to produce evidence of a bail bond
and a judgment nisi. Alvarez, supra, 861S.W.2d at 880-881, 887, 889 citing,
Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981); Tocher v. State, 517
S.W.2d 299, 301 (Tex. Cr. App.1975); Deckard v. State, 605 S.W.2d 918 (Tex. Cr.
App.1980). It did so. (CR. 12-13).
BURDEN SHIFTS TO SURETY
The burden then shifted to the Surety to respond to the State's Motion and if
an affirmative defense is pied in his response it must be supported by summary
judgment proof on every element of the affirmative defense. Nichols, supra, 507
S.W.2d at 520; Palmer, supra, 728 S.W.2d at 436. (CR. 14).
In his response, the Surety alleges that the Defendant-Principal, Brian Roy
Whipple was incarcerated in the Clark County Detention Center, Las Vegas,
Nevada, on June 29, 2014, a jurisdiction within the United States, and it was
5
within 180 days from the date of his failure to appear as required on February 14,
2014 and that these facts give rise to an affirmative defense provided by art.
22.13(a)(5)(A)(l). (CR. 17).
AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5)
The applicable language in Tex. Code Crim. Proc. art. 22.13 provides:
"Art. 22.13. CAUSES WHICH WILL EXONERATE.
(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:
(A) in the case of a misdemeanor, at the time of or not later than the 180th day
after the date of the principal 's failure to appear in court;
(B) in the case of a felony, at the time of or not later than the 270th day after the
date of the principal 's failure to appear in court.
(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to
pay costs of court, any reasonable and necessary costs incurred by a county to
secure the return of the principal, and interest accrued on the bond amount from
the date of the judgment nisi to the date of the principal 's incarceration.
Although the statute does call it an affirmative defense it meets the
definition of one. An affirmative defense does not seek to defend by merely
6
denying the plaintiff's claims, but rather seeks to establish "an independent reason
why the plaintiff should not recover." Texas Bee/Cattle Co. v. Green, 921S.W.2d
203, 212 (Tex. 1996) citing, 2 ROY W. McDONALD, TEXAS CIVIL PRACTICE
§ 9:44, at 378 (1992).
The affirmative defense provided by art. 22.13(a)(5)(A)(l) raised in
Surety's amended answer5 and the response consist of the following elements: (1)
Incarceration of principal on bond; (2) within any jurisdiction in the United States;
(3) principal charged with misdemeanor; (4) Incarceration within 180 days from
the date the principal fail to appear in court.
SURETY'S SUMMARY JUDGMENT PROOF
There is summary judgment proof in the record regarding each of the
elements required by art. 22. l 3a)(5)(A):
1. Incarceration of principal, Brian Roy Whipple.
Supplied by Exhibit "l ",page 3 (CR. 23) which is an incarceration
verification letter from the Sheriff of Clark County Nevada stating that (1) that
Brian Whipple DOB: XXXX was incarcerated in the Clark County Detention
Center, Las Vegas, Nevada; and (2) on June 29, 2014. The date of birth for Brian
5
Surety requested the Trial Court to take judicial notice of his First Amended Answer.
(CR.18, i/ 13 (6)).
7
Whipple on the bail bond in this case is XX-XX-XXXX. (CR. 5 and 13). The
date of birth specified in the incarceration verification letter and the date of birth
specified on the bail bond in this case are the same. (CR. 5, 13 and 23).
2. Within any jurisdiction in the United States.
Supplied by requests for judicial notice that: Clark County is located in the
State of Nevada; the City of Las Vegas, Nevada is located in Clark County; and
both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions
located within the United States. (CR. 18, ~ 13 (1 )(2)(3)).
3. Principal, Brian Whipple is charged with a misdemeanor.
Supplied by the judgment nisi. (CR. 4 and 12).
4. Incarceration of Brian Whipple within 180 days from the date the he
failed to appear in court.
The date he failed to appear in Court was February 14, 2014, and this is
shown on the judgment nisi. (CR. 4 and 12). The date of his incarceration was
June 29, 2014. This is shown on Exhibit "1 ",page 3 (CR. 23). The Trial Court
was requested to take judicial notice that the period of time between February 14,
2014 and June 29, 2014 was less than 180 days. (CR. 18, ~ 13 (5).
Reviewing this summary judgment evidence, the genuine issue of fact to be
resolved by a trier of fact is whether or not the Brian Whipple specified in the
8
verification letter from the Sheriff of Clark County Nevada is the Brian Whipple
that is the principal on the bond in this case. The date of birth, first and last name
match, but there is no middle name specified. These matches create an inference
supporting that the correct defendant is specified in the letter. The lack of a
middle name creates an inference of doubt that the correct defendant is specified
in the letter. For the purposes of the summary judgment only, the inferences are
resolved in the favor of the Surety. "Every reasonable inference from the evidence
must be indulged in favor of the non-movants and any doubts resolved in their
favor." Alvarez, supra, 861 S.W. 2d at 881, citing, Montgomery v. Kennedy, 669
S.W.2d 309, 311 (Tex.1984). Faced with these conflicting inferences, a material
fact issue exists and the State's Motion should have been denied and the Trial
Court erred by no doing so.
RELIEF GRANTED BY TRIAL COURT
The judgment entered by the Trial Court was for the face amount of the
bond $5,000.00 plus costs of court. Art. 22. l 3(a)(5)(A) and the summary
judgment proof presented, effectively mitigates the legal consequences of the
State's prima facie case for forfeiture. Where the conditions specified in art.
22.13(a)(5) are proved, the Surety is exonerated from liability of the forfeiture,
except costs of court, any reasonable and necessary costs incurred by a county to
9
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. See art.
22.13(b). The Trial Court of course will be free on remand to resolve the facts
regarding the Surety's affirmative defense, and if proved, the amount of expenses,
costs and interest the State is due.
CONCLUSION
Faced with the Surety's response6 and the summary judgment proof before
the court, the only proper action was to deny the State's Motion. The case before
this court is not to determine the correctness of, or application of, the Surety's
affirmative defense, but the whether the Trial Court erred in granting the State's
Motion in light of the surety's response and summary judgment evidence.
At heart, this case is very simple. Granting a summary judgment despite a
pled affirmative defense by the non-movant supported with summary judgment
evidence is an error that caused the trial court to render an improper judgment
which should be reversed and remanded to the trial court.
REQUEST FOR RELIEF
Appellant respectfully request that this Court reverse the judgment of the
6
Surety did not move for summary judgment on his affirmative defense, leaving it to be
resolved later.
10
trial court, remand the cause to the trial court and grant such other and further
relief as to which he has shown himself entitled.
Respectfully submitted,
/s/ Tom Benson
Tom Benson
Texas State Bar No. 02170500
900 Jackson St., Suite 750
Dallas, Texas 75202-4461
(214) 742-9898 Telephone
(214) 742-9879 Fax
tomrbenson@gmail.com
APPELLANT PRO SE
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using
WordPerfectX7 and contains approximately 2,089 words as determined by the
computer software's word-count function, excluding the sections of the document
listed in Texas Rules of Appellate Procedure 9.4(i)(l).
/s/ Tom Benson
Tom Benson
11
CERTIFICATE OF SERVICE
I certify that on May 6, 2015, a true and correct copy of the foregoing
Appellants' Brief and Appendix as corrected was served on appellee's attorney,
Tim Labadie, Assistant County Attorney by email to
tim.labadie@traviscountytx.gov.
Isl Tom Benson
Tom Benson
12
APPELLANT'S APPENDIX
ITEM BOOKMARK NO.
Trial Court's Judgment dated January 21, 2015 1
Tex. R. Civ. P. 166a(c) 2
Tex. Code Crim. Proc. 22.10 3
Tex. Code Crim. Proc. 22.13 4
Bail Bond 5
Letter from the Sheriff of Clark County Nevada 6
State's Motion For Summary Judgment and proof 7
Surety's First Amended Original Answer 8
Surety's Summary Judgment Response and proof 9
13
...
NO. C-1-CV-14-002294 FILED f OR RECO~D
(CRIMINAL NO. C-1-CR-13-501684).
ZOl5 JAN 21 AH 9: Otl
THE STATE OF TEXAS § COifJ°tiTY COURT AT LAW
§ "'NA OcSEAUVo,.,
COUNTY CLERK
v. § TRAVIS COUNTY, TEXAsNO. 7
§
BRIAN ROY WHIPPLE and §
TOM BENSON § TRAVIS COUNTY, TEXAS
FINAL JUDGMENT
On this day, the Court heard Plaintiff's Motion for Summary Judgment,
considered the summary judgment evidence, which included a certified copy of the
bond made on August 29, 2013, by Brian Roy Whipple, as Principal, and Tom Benson,
as Surety, payable to the State of Texas in the amount of $5,000.00 and a certified copy
of the order forfeiting that bond. The Court finds from the evidence that this bond
forfeited on February 14, 2014, when Brian Roy Whipple failed to appear in court in
cause number C-1-CR-13-501684 after his/her name was distinctly called at the
courthouse door. Illllll lllll lllll
000939084
lllll 111111111111111111111111111111111
The Court therefore finds that the evidence establishes as a matter of law there
are no genuine issues of material fact as to any of the elements of the State's cause of
action and grants Plaintiff's Motion for Summary Judgment.
The Court also finds from its file that citation was served on Brian Roy Whipple,
Principal-Defendant, and returned in accordance with Chapter 22 of the Code of Criminal
Procedure. The Court further finds that Brian Roy Whipple failed to appear or answer
within the time prescribed by law, and is in default. Further, the citation served, with the
321316 FINAL JUDGMENT (SURETY BOND)- PAGE 1
Appellants Brief Page 014
•
officer's return thereon, has been on file with the Clerk of the Court for at least ten days
exclusive of the day of filing and the day of judgment.
Therefore, the Court orders that:
1. The State of Texas, through its County Attorney of Travis County, recover,
jointly and severally, the sum of $5,000.00 from Brian Roy Whipple, as
Principal-Defendant, and Tom Benson, as Surety-Defendant;
2. Costs of suit are taxed against Brian Roy Whipple and Tom Benson, jointly and
severally;
3. The State of Texas, shall have all writs of execution and other process necessary
to enforce this judgment; and
4. This judgment finally disposes of all claims and all parties and is appealable.
SIGNED January 21, 2015.
CERTIFICATE OF LAST KNOWN ADDRESS
I, Tim Labadie, attorney of record for the State of Texas, Plaintiff, hereby certify
by my signature below that the last known address of Brian Roy Whipple is 1405 N
Interstate 35, Round Rock, TX 78664-2924.
Assistant County Attorney
321316 FINAL JUDGMENT (SURETY BOND)- PAGE 2
Appellants Brief Page 015
RULE 166a(c). SUMMARY JUDGMENT
(c) Motion and Proceedings Thereon. The motion for summary judgment shall
state the specific grounds therefor. Except on leave of court, with notice to
opposing counsel, the motion and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for hearing. Except on
leave of court, the adverse party, not later than seven days prior to the day of
hearing may file and serve opposing affidavits or other written response. No oral
testimony shall be received at the hearing. The judgment sought shall be rendered
forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the
pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the hearing, or filed thereafter
and before judgment with permission of the court, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion or in an answer or any other response. Issues not expressly
presented to the trial court by written motion, answer or other response shall
not be considered on appeal as grounds for reversal. A summary judgment may be
based on uncontroverted testimonial evidence of an interested witness, or of an
Appellants Brief Page 016
expert witness as to subject matter concerning which the trier of fact must be
guided solely by the opinion testimony of experts, if the evidence is clear, positive
and direct, otherwise credible and free from contradictions and inconsistencies,
and could have been readily controverted.
Appellants Brief Page 017
TEXAS CODE OF CRIMINAL PROCEDURE
ARTICLE 22.10
Art. 22.10. SCIRE FACIAS DOCKET. When a forfeiture has been
declared upon a bond, the court or clerk shall docket the case upon
the scire facias or upon the civil docket, in the name of the State
of Texas, as plaintiff, and the principal and his sureties, if any,
as defendants; and, except as otherwise provided by this chapter,
the proceedings had therein shall be governed by the same rules
governing other civil suits.
Appellants Brief Page 018
TEXAS CODE OF CRIMINAL PROCEDURE
ARTICLE 22.13
Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The following
causes, and no other, will exonerate the defendant and his sureties, if any, from
liability upon the forfeiture taken:
1. That the bond is, for any cause, not a valid and binding undertaking in law. If it
be valid and binding as to the principal, and one or more of his sureties, if any,
they shall not be exonerated from liability because of its being invalid and not
binding as to another surety or sureties, if any. If it be invalid and not binding as to
the principal, each of the sureties, if any, shall be exonerated from liability. If it be
valid and binding as to the principal, but not so as to the sureties, if any, the
principal shall not be exonerated, but the sureties, if any, shall be.
2. The death of the principal before the forfeiture was taken.
3. The sickness of the principal or some uncontrollable circumstance which
prevented his appearance at court, and it must, in every such case, be shown that
his failure to appear arose from no fault on his part. The causes mentioned in this
subdivision shall not be deemed sufficient to exonerate the principal and his
sureties, if any, unless such principal appear before final judgment on the bond to
answer the accusation against him, or show sufficient cause for not so appearing.
Appellants Brief Page 019
4. Failure to present an indictment or information at the first term of the court
which may be held after the principal has been admitted to bail, in case where the
party was bound over before indictment or information, and the prosecution has
not been continued by order of the court.
5. The incarceration of the principal in any jurisdiction in the United States:
(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; or
(B) in the case of a felony, at the time of or not later than the 270th day after the
date of the principal 's failure to appear in court.
(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to
pay costs of court, any reasonable and necessary costs incurred by a county to
secure the return of the principal, and interest accrued on the bond amount from
the date of the judgment nisi to the date of the principal 's incarceration.
Appellants Brief Page 020
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Appellants Brief Page 021
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XXX
Filed: 12/4/201412:42:36 PM
Dana DeBeauvoir
Travis County Clerk
NO. C-1-CV-14--002294 C-1-CV-14-002294
Anita Durar
(CRIMINAL NO. C-1-CR-13-501684)
THE STATE OF TEXAS § COUN1YCOURTATLAW
§
v. § N0.7
§
BRIAN ROY WHIPPLE and §
TOM BENSON § TRAVIS COUNlY, TEXAS
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE COURT:
Plaintiff, the State of Texas, files this motion for summary judgment1 and in
support thereof would respectfully show the Court the following:
I. INTRODUCTION
This is a bond forfeiture proceeding brought by the State of Texas pursuant to
Tex. Code Crim. Pro. article 22.02 In order to be entitled to a forfeiture of a bond,
Plaintiff must show (1) a valid bond executed by the surety; (2) that the defendant's
'=t
name was distinctly called at the courthouse door; and (3) the defendant failed to :-1
l=c
:===
appear within a reasonable-time of that call. Burns v. State, 861 S.W.2d 878, 888 (Tex.
·-
'-(
1-.
Crim. App. 1993).
-~
-·
--
-<
iiiiiii ~
I
The summary judgment evidence, which is comprised of the appearance bond = 11
executed by Defendants2 and the order forfeiting that bond,3 establishes each of these =2
--
II
elements as a matter of law. The bond establishes the first element of the State's bond
forfeiture suit and the Judgment Nisi is priina fade proof that of the second and third iiiiiii
!!!!!!!!
Brian Roy Whipple was served with citation, has not made an appearance and is in default
2 A certified copy of the bond is attached hereto as Exhibit A.
3 A certified copy of the Judgment Nisi is attached hereto as Exhibit 8.
321313
Pl.AINTin's MOTION FOR SUMMARY JUDGMENT (SURETY BoNo)- PACI 1
Appellants Brief Page 023
elements. Burns v. State, 861 S.W.2d at 887. Thus, the court must presume that the
Judgment Nisi is in accordance with the statutory requirements, unless it affirmatively
appears otherwise. Id.
IL THE SUMMARY JUDGMENT EVIDENCE
On August 29, 2013, Brian Roy Whipple, as Principal, and Tom Benson, as
Surety, executed a bond payable to the State of Texas in the amount of $5,000.00.• This
bond, which was a valid and binding undertaking in law, was conditioned on Brian
Roy Whipple's personal appearance before the county court of Travis County in cause
no. C-1-CR-13-501684.5 On February 14, 2014, Brian Roy Whipple failed to appear when
this case was called for triaJ.6 Thereafter, Brian Roy Whipple's name was called
distinctly at the door of the courthouse and he was given a reasonable time after which
to appear.7 Brian Roy Whipple, however, failed to appear and the bond made by
Defendants was forfeited.&
This evidence establishes as a matter of law there are no genuine issues of
material fact as to any of the elements of the State's cause of action.
IIL PRAYER
The State of Texas, Plaintiff, respectfully requests that the Court grant this
motion and render judgment against Brian Roy Whipple, as Principal, and Tom Benson,
as Surety, jointly and severally, in the amount of $5,000.00 plus court costs.
4 See Exhibit A.
5 See Exhibit A.
6 See Exhibit B.
1 See Exhibit B.
8 See Exhibit B.
321313
PlAJNTJpp'5 MonoN l'OR SUMMAR\' JU0CM1!flrt' (SuaEn BoNo)- PAGI! 2
Appellants Brief Page 024
Respectfully submitted,
DAVID ESCAMILLA
TRAVIS~CO
ATIO~
c..-.9 ••
By:
Ti badie
Assistant Travis County Attorney
State Bar No. 11784853
P.O. Box 1(48
Austin, TeXa5 78767
(512) 854-9513
(512) 854-4808 (fax)
NOTICE OF HEARING
Plaintiff's Motion for Summary Judgment is set for hearing on January 21, 2015
at9:00a.m. ~-...C..
· badie
CERTIFICATE OF SERVICE
I hereby certify by my signature above that, on December 4, 2014 and in
accordance with the Texas Rules of Civil Procedure 21 and 21a, a true and correct copy
of the foregoing was served by fax on:
Mr. Tom Benson
900 Jackson Street, Suite 750
Dallas, Texas 75202
Fax - 214-742-9879
321313
Pu.INTln'S ManON l'Oll SUMMARY }UDCM!NT (Suun BoND)- PACE 3
Appellants Brief Page 025
Filed: 3fl112014 3:57'.54 PM
Dana OeBeewoir
Travis Coun~ Clefk
C-1-CV-14.oo229'
Guy Oeles9io
nm STATE OF TEXAS I COUN1Y COUltT AT LAW
I
vs. f N0.7
f
f
I TRAVIS COUNTY, TEXAS
.DJDGMr.NT Niii
On Pcbl_,- 14, 2014, C1U1C . . . _ C·l-cR.·13-501614 W8S calW for trill. Tiii Sllle
of Tam.,,..... "1 ill County Aaamey. 'Ille DeCcadanl. Brian Roy Whipple. failed to IPPCll'
... w . 'l1la9upoa, ... DetcadMll'• - - ,,. called dbtiDcdy Ill dw door of Ibo
~ IDCI ..,...,_ aiYeft a llllDGIWe time eo..,,_. However, the Defcndlnt fliJed to
......... wboll, ............
Tbe Coult &m dllt die DdwiA-., 8ri1D Ito)' Wbipple. • pinGipll.10pdler wida Tom
I m (dbl NA F• a.ii Ba.di).• ..-y, on Nov.bcr 29, 2013, exadld a bond payable
to dle-ofTCIUI in tht .... MD of SS.000.00 conditiaald dlll the Defendllll, • priaeipil.
mouJd -a..._,__. ........ Wen the County Coult Ill Law No. 7, Tmvil Coant)',
Tam. • tbl Tmll CGmll)' ~ in Amdn. Tcua. Ill its ...... -... now in -.iola,
...._,, 11111 tbae ...m hm-,.
ro day llld tam to 111m of dlil Cowt mlil ~by
dae oourll of law, IO __.die S.. of Texas upon a chlll' b)' coq>lliat and infonmlion
.._. ftled eccum. IUmlhc:rortbe.,.,.. mlldaamwr olfeme:
FALSE STATEMENT FOR PROPERTY/CREDIT.
The Coult . . . . . doc'- ....... ~ bond is folftiled. The Coan
ORDERS dllt lbe S.. of Tew aeccwer hm Brim Ito)' Wldpple, priDcipll. and Tom Bcmoa.
IURll)', 1hc MD of SS,000.00 IDCI dllt 1IU judplmt .U lie IDldc ftall Ullea pd CIUIC lie
.,... ...., . . Ddendlnt did - r·
Sipedoa ty/,~~ v( ~{ 0
McnilJ lir ... Sllle ofTeua:
Dlvill A. Ela•Bll. TNVil CGallly AllDnlly
P.O.la1741
MMi1a. TX 71767
..... (512)154-9513
11111111111111
000840518
Fax: (512) 154 tlOI
BOND LD. msH VOL. _ _ _ PAOE _ __
E.~h\b\t.__..\9.-
....--
Appellants Brief Page 026
\~
...______ _
........
i I' •II
--- --- &l'l'ltl&ti• • • • •
•I j
I Fl
.
t
XXXXXXXXXXXXXX
-- -
...
...... "
i
R --
•
.... -
"' _________ ..... ,_ ___
--
"' - •
- ,_--
J=vhibit_ -·~- ·..
Appellants Brief Page 027
\J
.. • C-1-CV-14-002294
• Filed: 1/13/2015 5:33:22 PM
Dana DeBeauvoir
Travis County Clerk
C-1-CV-14-002294
Ne. C 1 14 09229~ Andrea Scott
(CRIMINAL No. 1-CR-13-501684)
THE STATE OF TEXAS § IN THE COUNTY COURT
§
vs. §
§ AT LAW No. 7
BRIAN ROY WHIPPLE and §
TOM BENSON §
§ TRAVIS COUNTY, TEXAS
DEFENDA."IT'S
FIRST AMENDED ORIGINAL ANSWER
Defendant, Tom Benson, files his First Ame.nded Original Answer.
A. General Denial
1. Defendant generally denies the allegations of plaintiff.
B. Affinnative Defense
2. Defendant is not liable to plaintiff for the amount of the bond pursuant to art.
22.13(a)(5)(A) TEX. CODE CRIM. PROC., because the Defendant-Principal, Brian Roy Whipple,
was incarcerated in the Clark County Detention Center. Las Vegas, Nevada, a jurisdiction within
the United States, within 180 days from the date of bis failure to appear as required on February
14, 2014.
C. Prayer
3. For these reasons, defendant asked the Court render judgment that plaintiff be awarded
only, 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 as provided in art. 22.13(5)(b) TEX. CODE CRIM. PROC.,
and award all other relief to which defendant is entitled.
Defendant's First Amended Original Answer - Page l of 2 Pages
Case # C-1-CV-14-002294
1111111111111111111111111111111111111111111111111111111
Appellants Brief Page 028
•
Respectfully submitted,
Isl Tom Benson
Tom Benson, Prose
Defendant-Surety
900 Jackson Street, Suite 750
Dallas, Texas 75202
Tex.as Bar l.D. 02170500
(214) 742-9898
(214) 742-9879 FAX
tomrbenson@gmail.com
CERTIFICATE OF SERVICE
I certify that I have on this 13th day of January, 2015, before S:OO P.M., caused a true
and correct copy of the foregoing Defendant's First Amended Original Answer to be delivered to
Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov.
Isl Tom Benson
Tom Benson
Defendant's First Amended Original Answer-Page 2 of2 Pages
Appellants Brief Page 029
Filed: 1/13/2015 5:42:49 PM
Dana DeBeauvoir
C-1-CV-14-002294 Travis County Clerk
C-1-CV-14-002294
Ne. C 1 14 992194 Andrea Scott
(CRIMINAL No. 1-CR~13-501684)
THE STATE OF TEXAS § IN THE COUNTY COURT
§
vs. §
§ AT LAW No. 7
BRIAN ROY WHIPPLE and §
TOM BENSON §
§ TR.AVIS COUNTY, TEXAS
DEFENDANT'S RESPONSE TO
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND
REQUESTS FOR COVRTTO TAKE JUDICIAL NOTICE
Defendant asks the court to deny pla.intifrs motion for summary judgment and to take
Judicial Notice as requested herein.
A. Introduction
1. Plaintiff is The State of Texas; defendant is Tom Benson.
2. Plaintiff sued defendant for forfeiture of a bail bond in a criminal case.
\
3. Defendant answered asserting a general denial and an affirmative defense under art.
22.13(a)(5){A) that the Defendant-Principal, Brian Roy Whipple was incarcerated in the Clark
County Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, within
180 days from the date ofhis failure to appear as required on February 14, 2014.
B. Facts
4. Plaintiff filed a motion for summary judgment based on its cause of actfon for forfeiture
of a bail bond in a criminal case.
S. Defendant attaches Exhibit 1 to establish facts not apparent from the record and
incorporates it by reference.
Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice- Page I ofS Pages
Case # C-1-CV-14-002294
Appellants Brief Page 0301111111111111111111111111111111111111111111111111111111
\\(:>
C. Argument & Authorities
6. In deciding whether there is a disputed issue of material fact that precludes summary
judgment, the court takes as true all evidence favorable to the nonmovant. Limestone Prods. Distrib.,
Inc. v. McNamara, 11 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S. W.2d 217,
223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court
must view the evidence in the light most favorable to the nonmovant and must indulge every
reasonable inference and resolve ati doubts in favor ofthe nonmovant. Limestone Prods., 71 S. W.3d
at 311; Nixon, 690 S.W.2d at 549.
7. The court should denyplaintiff s motion for summary judgment because defendant's answer
asserts the affirmative defense of the incarceration of the Defendant-Principal on the bond, Brian
Roy Whipple in the Clark County Detention Center, Las Vegas, Nevada, a jurisdiction within the
United States, within 180 days from the date of his failure to appear as required on February 14,
2014. This defense is provided by art. 22.13(5)(A)(I) TE.x. CODE CRIM. PROC.
8. The summary-judgment evidence attached to this response by defendant has created a fact
issue on each element of his affirmative defense. Bassett v. Am. Nat'l Bank, 145 S.W.3d 692, 696
(Tex. App.-Fort Worth 2004, no pet.}; see Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.
1984).
9. Defendant's affirmative defense consists of the following elements: (1) Incarceration of
principal on bond; (2) within any jurisdiction in the United States; (3) principal charged with
misdemeanor; (4) Incarceration within 180 days from the date the principal fail to appear in court.
1O. The .smnmary-judgment evidence raises a fact issue on each element of the affirmative
defense.
Defendant's Response to Plaintiffs Motion for Summary Judgment and Requests to take
Judicial Notice - Page 2 of S Pages
Appellants Brief Page 031
\<\
D. Summary-Judgment Evidence
11. Defendant includes the summary·judgment evidence attached to this response and
incorporates the evidence into this response by reference.
12. This response depends on the following documentary evidence:
Documentary evidence. "Exhibit l ", which is verified as authentic, establish the
following facts:
( 1) that Brian Whipple DOB: XXXXX was incarcerated in the Clark County Detention
Center, Las Vegas, Nevada; and
(2) on June 29, 2014.
13. This response additionally depends on the following evidence provided by judicial notice:
,fudlclal Notice. Defendant requests the Court to take judicial notice :
(1) that Clark County is located in the State of Nevada;
(2) that the Cjty of Las Vegas, Nevada is located in Clark County~
(3) that both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions
located within the United States;
(4) that the defendant-principal Brian Roy Whipple failed to appear when required in
court on February 14, 2014;
(5) that the number of days between February 14, 2014 and June 29 1 2014 is less that
180 days;
(6) of the Defendant's First Amended Original Answer filed in this case; and
(7) that the principal Brian Roy Whipple's date of birth specified on the bond that is the
subject matter of this suit isXXXXXX .
Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice - Page 3 of 5 Pages
Appellants Brief Page 032
,ro
E. Conclusion
14. Because the Defendant·Principal, Brian Roy Whipple was incarcerated in the Clark County
Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, on June 29, 2014,
which within 180 days from the date of his failure to appear on February 14, 20l4, the State is not
entitled to recover $5 ,000.00. It is only entitled to recover costs of court and interest accrued on the
bond amount ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June
29, 2014 (the date of the principal 's incarceration). Had the State provided any summary judgment
proof of any reasonable and necessary costs incurred by a county to secure the return of the principal
it would have been entitled to these costs also but there is no evidence before the Court of these
costs and therefore the State is not entitled to them.
F. Prayer
1S. For these reasons, defendant asks the court to denyplaintiff"s motion for summary judgment
or aJternariveJy, enter a judgment only for costs of coun and jnterest accrued on the bond amount
ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June 29, 2014 (the
date of the principal 's incarceration).
Respectfully submitted,
Isl Tom Benson
Tom Benson, Prose
Defendant-Surety
900 Jackson Street, Suite 750
Dallas, Texas 75202
Texas Bar l.D. 02170500
(214) 742-9898
(214) 742-9879 FAX
tomrbenson@gmail.com
Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice - Page 4 of 5 Pages
Appellants Brief Page 033
CERTIFICATE OF SERVICE
I certify that I have on this 13th day of January, 2015, before 5:00 P.M., caused a true and
correct copy of the foregoing Defendant's Response to State's Motion for Summary Judgment with
attachments to be delivered to Tim Labadie, Assistant Travis County Attorney by email to:
tim.labadie@traviscountytx.gov.
Isl Tom Benson
Tom Benson
Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice - Page 5 of S Pages
Appellants Brief Page 034
~IBIT "I" (Three Pages)
No. C·l-14~002294
(CRIMINAL No. 1-CR-13-501684)
THE STATE OF TEXAS § JN THE COUNTY COURT
§
vs. §
§ ATLAWNo. 7
BRIAN ROY WHIPPLE and §
TOM BENSON §
§ TRAVlS COUNTY, TEXAS
BUSINIJSS RECQRD AFFIDAVJT
Before me, the tDldersigned authority, personally appeared Tom Ben.~on, who
being by me duly sworn, deposed as follows:
"My name is Tom Benson, 1 am of sound mind, capable of making this affidavit, and
personally acquainted with the facts herein stated:
I am the cust.00.ian of the records of Tom Benson dlb/a Act Fast Bail Bonds of Fort
Worth, Texas. Attached hereto is one page of records from Tom Benson d/b/a Act Fast
Bail Bonds of Fort Worth, Tex.as. The said one page of records are kept by Tom Benson
d/b/a Act Fast Bail Bonds of Fort Worth, Texas in the regular course of business, and it
was the regular practice of said entity for an employee or representative with knowledge
of the act, event, condition, opinion, or diagnosis, recorded to make the record or to
transmit infonnation thereof to be included in such record; and the record was made at or
near the time or reasonably soon thereafter. The record attached hereto is the original or
an exact duplicate of the original."
..:.._._. . . ..,.om Benson
SWORN TO AND SUBSCRIBED before me on the 6th day of January, 2015.
.. lfllCIA•-
N'7tOty ftUbllc. Stote of Tete• ~7V
Mv~o~ntJ NOTARY PUB.Lie
Business Record Affidavit • Page 1 of 1 Pages
Appellants Brief Page 035
rv\
' .
CERTIFICATE OF SERVICE
I certify that I have on this 6th day of January. 2015, before 5:00 P.M., caused a
true and correct copy of the foregoing Business Record Affidavit with one attached page
to be delivered by fax to: (512) S84 1888 for Tim Labadie, Assistant Travis County
854-4808
Attorney.
Business Record Affidavit • Page 2 of 2 Pages
Appellants Brief Page 036
tl 1.;
v
XXX
Tom Benson v. State
Combined Opinion