Tom Benson v. State ( 2015 )

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.
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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.
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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)).
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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
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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,Id.
BAIRD, Judge 1 Unless otherwise indicated, all
I respectfully dissent. As appellant emphasis herein is supplied by the
aptly states, "the cardinal rule of author.
statutory construction is to save, not [**32] Today, the majority,
destroy." Appellant's brief, pg. 11. In purporting to rely on Matyastik,
State v. Matyastik, 811 S.W.2d 102, 104 concludes that without the time limits in
(Tex.Cr.App. 1991), we noted, [**31] subsection (c) "remittitur of a forfeited
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
bond would be mandatory at any time After the expiration of the time
after the forfeiture because there is no limits set by Subsection (c) of this
judgment provision in (a). Consequently, article and before the entry of a
subsection (a) cannot be executed or final judgment against the bond,
have any effect without the invalid the court in its discretion may remit
provisions. Subsection (a) is thus void. to the surety all or part of the
We therefore hold that mandatory amount of the bond after deducting
remittitur provisions of 22.16(a) are no the costs of court, any reasonable
longer valid. Remittitur may instead be costs to the county for the return of
done at the trial court's discretion at any the principal, and the interest
time before entry of a final judgment accrued on the bond amount as
[Footnote omitted]" pursuant to Tex. provided by Subsection (e) of this
Code Crim. Proc. Ann. art. 22.16(d). article.
Lyles v. State, S.W.2d at The majority ignores the fact that, in
(Tex.Cr.App. 1992, No. 1302-91, 1987, the Legislature amended art. 22.16
delivered October 7, 1992), slip op. pg. to its current form, providing for both
4. mandatory and discretionary remittitur.
To reach this holding, the majority Obviously the Legislature did not
mis-interprets Matyastik. As I interpret perceive a conflict between subsections
Matyastik, the mandatory provisions of (a) [**34] and (d). Indeed, there is no
subsection (a) were still valid "anytime such conflict; one provides for
between forfeiture and entry of a final mandatory remittitur while the other
judgment." Matystik, 811 S.W.2d at 104. provides for remittitur at the discretion
The majority justifies its holding by of the trial court. In other words, if the
creating a conflict between subsections bond is forfeited for a reason other than
(a) and (d). The majority states "if one provided by subsection (a), the trial
subsection (a) is to be read without judge may, at his discretion,
reference to the [**33] time limitations nevertheless remit all or part of the
of subsection (c), the trial court would amount of the bond under subsection
no longer have" the discretion found in (d).
subsection (d). What the majority fails to The Legislature provided for
recognize is that subsection (d) also mandatory remittitur to encourage the
relies upon the time limits set by making of bonds for those incarcerated
subsection (c). 2 Consequently, if while awaiting trial. As the Court of
subsection (a) is unconstitutional, Appeals recognized:
subsection (d) is also unconstitutional. The legislature has considered the
overcrowded condition of most jails and
2 Art. 22.16(d) provides: the state penitentiary, and determined it
Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)
to be the public policy of allow a 1990 and Lyles filed his motion to
remittitur of an appearance bond when modify less than thirty days later,
the principal is returned to custody prior March 6, 1990. Accordingly, the
to final judgment. In making its judgment was not final under Tex.
determination, the legislature has R. Civ. Proc. Ann. 329b(d), (e) and
recognized that jail and penitentiary (f). See also, prior Rule 329b(5)
space is critical in Texas and that the (Judgments shall be come final
bail bond industry provided a useful after the expiration of thirty (30)
service by assuming the risk of a days the date of rendition of
defendant's timely appearance in court. judgment or order overruling an
When a defendant is released on bail original or amended motion for
bond, the potential liability that cities new trial.) Accordingly, the
and counties assume while housing judgment was not final and the
persons [*508] accused of crimes are remittitur was mandatory under
eliminated [**35] as well as the Matyastik.
financial burden for housing each [**36] Keeping in mind the
prisoner. In addition, critical jail space is "cardinal rule of statutory construction"
made available for more serious we can save, not destroy art. 22.16. I
offenders. believe, consistent with our holdings in
Armadillo Bail Bonds v. State, 802
Lyles v. State, 814 S.W.2d 411, 412 S.W.2d 237 (Tex.Cr.App. 1990) and
(Tex. App.--Waco 1991). Matyastik, art. 22.16 should be read as
I believe the Court of Appeals' follows:
treatment of this case was, in all
respects, correct. 3 (a) Anytime between forfeiture and entry
of a final judgment, $ (O>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 the247 S.W.3d 716 (Tex. Crim. App. 2008)
MIKE McKENNA d/b/a BONDMAN BAIL BONDS,
Appellant v. THE STATE OF TEXAS
No. PD-0053-07
COURT OF CRIMINAL APPEALS OF TEXAS
247 S.W.3d 716; 2008 Tex. Crim. App. LEXIS 383
March 12, 2008, Delivered
NOTICE: PUBLISH JJ., joined. WOMACK, J., did not
participate.
PRIOR HISTORY: [**1]
ON THE STATE'S PETITION FOR OPINION BY: HOLCOMB
DISCRETIONARY REVIEW. IN
CAUSE NO. 10-05-00318-CR FROM OPINION
THE TENTH COURT OF APPEALS, [*717] In this bail bond forfeiture
JOHNSON COUNTY. case, the trial court denied the surety's
McKenna v. State, 209 S.W.3d 233, 2006 request to remit a portion of the bond
Tex. App. LEXIS 9401 (Tex. App. Waco, amount. The court of appeals later
2006) reformed the trial court's order to reflect
a remittitur of 60% of the bond amount.
COUNSEL: For APPELLANT: Mike We reverse.
McKenna, Pro se, Fort Worth, TX.
On January 18, 2001, Belinda Lee
For STATE: Lisa A. Wyatt, Powell, charged in Johnson County with
ASSISTANT DISTRICT ATTORNEY, a felony drug offense, failed to appear in
Cleburne, TX; Jeffrey L. Van Horn, court for her trial. On February 13, 2001,
STATE'S ATTORNEY, Austin, TX. the trial court rendered judgment nisi for
the State and against Powell and her
JUDGES: HOLCOMB, J., delivered the surety, Mike McKenna d/b/a Bondman
opinion of the Court, in which KELLER, Bail Bonds, jointly and severally, in the
P.J., and MEYERS, PRICE, JOHNSON, amount of Powell's bail bond, which was
KEASLER, HERVEY, and COCHRAN, $ 25,000. On that same date, the trial
McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)
court ordered that a capias be issued for and was "assured . . . that [Powell]
Powell's arrest. On March 26, 2003, at [**3] had been arrested."
the bond forfeiture hearing, the trial At the close of Smith's testimony, the
court rendered a default final judgment trial court allowed McKenna and the
for the State and against Powell and State to present their arguments.
McKenna. McKenna argued that equity demanded
On March 22, 2005, McKenna filed a "a substantial remittitur" because: (1)
special bill of review [**2] in the trial "Smith [had] expended substantial
court requesting, on equitable grounds, efforts in locating" and apprehending
that the default final judgment be Powell and (2) "the State ha[d] not
reformed to reflect a 95% remittitur of presented any evidence showing how [it
the bond amount. On June 27, 2005, the had been] prejudiced" by the seven-
trial court held an evidentiary hearing on month delay in apprehending Powell.
McKenna's bill. At that hearing, The State responded that equity did not
McKenna called one witness, [*718] require any remittitur at all because: (1)
Charles A. Smith, and the State called Smith's testimony had been "sketchy at
no witnesses. Smith testified that: (1) he best"; (2) Smith's efforts to locate and
was, at the relevant times, an employee apprehend Powell had been "minimal";
of McKenna's; (2) after Powell failed to and (3) the delay in apprehending
appear in court for her trial, he and other Powell had been "significant."
McKenna employees "did [their] best to On July 25, 2005, the trial court
get [Powell] arrested"; (3) they issued an order denying any remittitur to
"searched all the places [they] thought McKenna. The trial court gave no
she might be," they "contacted her explanation for its ruling.
sisters [and] her mother," and they
publicly offered a $ 1,000 reward for On direct appeal, McKenna argued
information leading to her arrest; (4) on that the trial court's denial of remittitur
September 13 or 14, 2001, an informant had been "an abuse of discretion
telephoned their office and told them of considering all the facts of the case,
Powell's whereabouts; (5) on September especially in view of the fact . . . that the
15, 2001, he personally went to the Surety [had been] totally responsible for
location given by the informant, which locating [Powell] and having her
was off County Road 801 in Johnson apprehended." McKenna argued, too,
County, and found Powell there; (6) he that "the state [had] failed to present any
immediately telephoned the Johnson evidence of harm done to the [**4]
County Sheriff's Office and gave them public or [any] prejudice suffered by the
Powell's location; and (7) he telephoned government" as a consequence of the
the Sheriff's Office again later that day delay in apprehending Powell. The State
counterargued that the trial court had not
McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)
abused its discretion in denying
remittitur because McKenna had failed
to carry his "burden [of showing] the The [**5] State later filed a petition
[trial] court the equitable grounds for discretionary review, which we
[required] to grant the special bill of granted. See Tex. R. App. Proc. 66.3(e).
review." In its petition and accompanying brief,
The Tenth Court of Appeals, by a the State, in essence, reiterates the
vote of two to one, agreed with arguments made by [*719] the chief
McKenna's arguments and reformed the justice in the court below. McKenna, in
trial court's order to reflect a remittitur response, argues that the court of
of 60% of the bond amount, i.e., $ appeals "properly found . . . a clear and
15,000. McKenna v. State, 209 S.W.3d profound abuse of discretion based on
233, 236-237 (Tex.App.-Waco 2006). the . . . record."
The chief justice of the court of appeals, Article 22.17(a) of the Texas Code of
in dissent, argued: Criminal Procedure provides:
"[T]he majority has placed "Not later than two years
the burden on the State to after the date a final judgment
avoid a remittitur by is entered in a bond forfeiture
presenting evidence. This is proceeding, the surety on the
an erroneous placement of the bond may file with the court a
burden of proof. The burden special bill of review. A
of proof is on the surety to special bill of review may
establish that on equitable include a request, on
grounds a remittitur should be equitable grounds, that the
ordered. final judgment be reformed
*** and that all or part of the bond
"The hearing [on the amount be remitted to the
special bill of review] surety, after deducting the
focussed on McKenna's costs of court, any reasonable
efforts to locate Powell. costs to the county for the
Evidence on this single factor return of the principal, and the
was not enough to convince interest accrued on the bond
the trial court of the surety's amount from the date of
equitable interest in being forfeiture. The court in its
granted a remittitur. I find no discretion may grant or deny
abuse of discretion." Id. at the bill in whole or in part."
238-239.
McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)
Under the plain wording of the contemplates that the accused's
statute, a surety may request, within two nonappearance will normally result in
years of a final judgment on a bond total forfeiture of the bond amount.
forfeiture, that the trial court order a While keeping that fact in mind, the trial
[**6] remittitur of all or part of the bond court may consider any factor bearing
amount on equitable grounds. Although upon the equity of the situation,
the statute does not state that the surety including, but not necessarily limited to,
has the burden of proof with respect to the following: (1) whether the accused's
the existence of such equitable grounds, failure to appear in court was willful; (2)
we are of the view that the surety does whether the delay caused by the
indeed have that burden, since the surety accused's failure to appear in court
is the party attempting to change the prejudiced the State or harmed the
status quo. This is so even though the public interest; (3) whether the surety
State may have superior access to proof participated in the re-arrest of the
of certain matters. As one leading accused; (4) whether the State incurred
treatise explains, "The burdens of costs or suffered inconvenience in the
pleading and proof with regard to most re-arrest of the accused; (5) whether the
facts have been and should be assigned surety received compensation for the
to the [party] who generally seeks to risk of executing the bail bond; and (6)
change the present state of affairs and whether the surety will suffer extreme
who therefore naturally should be hardship in the absence of a remittitur.
expected to bear the risk of failure of See Lyles v. State, 850 S.W.2d 497, 502
proof or persuasion." K. Broun (ed.), (Tex.Crim.App. 1993); Gramercy Ins.
McCormick on Evidence § 337 at 474 Co. v. State, 834 S.W.2d 379, 381-382
(6th ed. 2006). Our research also reveals (Tex.App.-San Antonio 1992, no pet.);
that most or all other American 8A Am. Jur. 2d Bail and Recognizance
jurisdictions also assign the burden of §§ 150 & 151 (1997); 8 C.J.S. Bail §
proof to the party seeking relief from a 290 (2005).
bond forfeiture. See 8A Am. Jur. 2d Bail On this record, a reasonable trial
and Recognizance § 150 (1997); 8 C.J.S. [**8] court could have concluded that
Bail § 313 (2005). equity did not require any remittitur of
Under the terms of Article 22.17(a), the bond amount. Thus, we discern no
the decision whether to grant any abuse of discretion on the part of the
remittitur on equitable grounds rests trial court. McKenna had the burden of
within the sound discretion of the trial showing that equity required a remittitur
court. In making its decision, [**7] the of some or all [*720] of the bond
trial court must keep in mind that, since amount, yet he presented evidence on
the purpose of bail is to secure the only one of the relevant factors: his
accused's appearance in court, the law participation in the re-arrest of Powell.
McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)
McKenna, who undoubtedly received The record shows no abuse of
monetary compensation for his risk in discretion on the part of the trial court,
executing Powell's bail bond, presented and the court of appeals erred in holding
no evidence concerning the reason for otherwise. We reverse the judgment of
her nonappearance in court, or the the court of appeals and affirm the order
prejudice, costs, and inconvenience of the trial court.
suffered (or not suffered) by the State DELIVERED MARCH 12, 2008
and the public as a result of her
nonappearance and the seven-month PUBLISH
delay until she was re-arrested.
Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)
Robert Mendez d/b/a A-1 Bonding Company, Surety,
Appellant v. The State of Texas, Appellee
NO. 03-12-00200-CV
COURT OF APPEALS OF TEXAS, THIRD DISTRICT,
AUSTIN
2013 Tex. App. LEXIS 13278
October 25, 2013, Filed
PRIOR HISTORY: [*1] MEMORANDUM OPINION
FROM COUNTY COURT AT LAW Robert Mendez d/b/a A-1 Bonding
NO. 1 OF CALDWELL COUNTY. NO. Company (Mendez) appeals the trial
5203, HONORABLE EDWARD L. court's judgment awarding $5,000 plus
JARRETT, JUDGE PRESIDING. court costs to the State of Texas in a
bond-forfeiture suit. We will affirm the
DISPOSITION: Affirmed. district court's judgment.
BACKGROUND
COUNSEL: For appellee: Ms.
Cassandra M. Benoist, Assistant Suits for bond forfeiture are governed
Criminal District Attorney-Caldwell by chapter 22 of the Texas Code of
County, Lockhart, TX. Criminal Procedure. See Tex. Code
Crim. Proc. arts. 22.01-.18. Under
For appellant: Mr. John P. Bennett, article 22.02, a bond may be forfeited
Lockhart, TX. when a defendant has posted bond but
fails to appear in court as required. Id.
JUDGES: Before Justices Puryear, art. 22.02. Specifically, when the
Pemberton and Field. defendant fails to appear within a
reasonable time after called by name at
OPINION BY: Scott K. Field the courthouse door, the trial court
enters a judgment providing "that the
OPINION State of Texas recover of the defendant
the amount of money in which he is
Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)
bound, and of his sureties, if any, the could take Tokola into custody pursuant
amount of money in which they are to [*3] a warrant that had issued for her
respectively bound." Id. This judgment, arrest. However, Mendez testified that
referred to as a judgment nisi, must also once the officers arrived, Tokola--who
state that it will be made final, unless was visibly pregnant at the time--began
good cause is shown for why the complaining of stomach pain and asked
defendant did not appear. Id. At a later to be taken to the hospital. Counsel for
[*2] hearing to finalize the bond Mendez then presented the testimony of
forfeiture, "[t]he essential elements of Sergeant Richard Torres, the supervising
the State's cause of action . . . are the police officer on the scene that day.
bond and the judicial declaration of the Torres testified that, upon the arrival of
forfeiture of the bond, which is the an ambulance and an evaluation by
judgment nisi." Alvarez v. State, 861 emergency medical personnel, he
S.W.2d 878, 880-81 (Tex. Crim. App. decided not to arrest Tokola. Instead,
1992). Torres released Tokola for transport to
In this case, Vallery Tokola, the the local hospital.
principal, was arrested for misdemeanor At the conclusion of the hearing,
criminal trespass, and Mendez, the Mendez asserted that he was entitled to
surety, filed a bond conditioned on exoneration and alternatively requested a
Tokola's subsequent appearance. On remittitur in the full amount of the bond.
January 7, 2010, Tokola failed to appear The trial court later rendered judgment
in court as required. On February 1, against Tokola and Mendez, jointly and
2010, in accordance with chapter 22, the severally, for the full amount of the bond
trial court issued a judgment nisi for plus costs. Upon Mendez's request, the
$5,000 and declared the bond forfeited. court issued findings of fact and
Upon notifying Mendez of the bond- conclusion of law.
forfeiture proceedings, the trial court
conducted a hearing to finalize the STANDARD OF REVIEW
judgment. At the hearing, the State Although bond-forfeiture
entered several documents into proceedings are criminal cases, appellate
evidence, including the judgment nisi, review of bond-forfeiture proceedings is
but did not present any testimony. governed by civil law, including the
Mendez testified on his own behalf standard of review. Tex. Code Crim.
regarding actions he took aimed at Proc. art. 44.44 (providing that "the
returning Tokola to incarceration proceeding shall be regulated by the [*4]
following her failure to appear. Mendez same rules that govern civil actions
explained that on February 5, 2011, he where an appeal is taken"); International
"lured" Tokola to his office and then Fid. Ins. Co. v. State, No. 03-09-00539-
called the Lockhart police so that they CR, 2010 Tex. App. LEXIS 8873, 2010
Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)
WL 4366913, at *2 n.3 (Tex. App.-- bond, the court in its
Austin Nov. 3, 2010, no pet.) (mem. op.) discretion may remit to the
(applying civil standard to review for surety all or part of the
factual and legal sufficiency). amount of the bond after
In a bench trial, where the trial court deducting the costs of court
makes findings of fact, as it did in this and any reasonable and
case, those findings of fact are the necessary costs to the county
equivalent of jury answers to special for the return of the principal,
issues. Echols v. Olivarez, 85 S.W.3d and the interest accrued on
475, 477 (Tex. App.--Austin 2002, no the bond amount as provided
pet.). This Court reviews the trial court's by Subsection (c).
findings of fact for legal sufficiency and
factual sufficiency of the evidence.
Seasha Pools, Inc. v. Hardister, 391 Tex. Code Crim. Proc. art. 22.16(b). In
S.W.3d 635, 639 (Tex. App.--Austin two issues on appeal, Mendez challenges
2012, no pet.). When, as here, a party the trial court's failure to grant him a
attacks the factual sufficiency of an discretionary remittitur under article
adverse finding on an issue on which he 22.16(b). First, Mendez asserts that the
has the burden of proof, he must evidence is factually insufficient to
demonstrate on appeal that the adverse support the trial court's finding that
finding is against the great weight and Mendez was "advised that the San
preponderance of the evidence. See Dow Marcos Police Department would take
Chem. Co. v. Francis, 46 S.W.3d 237, Defendant Vallery Tokola into custody
242 (Tex. 2001) (per curiam). In if Defendant Robert Mendez would
conducting this review, we do not contact that agency and make a formal
engage in our own factual review; request." Second, Mendez argues that
rather, the trial judge is the "sole judge the trial court abused its discretion in
of the credibility of the witnesses and failing to grant him a remittitur for
the weight to [*5] be given their "good cause" pursuant to article
testimony." McGalliard v. Kuhlmann, 22.16(b). Mendez asserts that he was
722 S.W.2d 694, 696 (Tex. 1986). entitled to remittitur for all or part [*6]
of the bond because, as a result of the
ANALYSIS officers' failure to comply with their
statutory duties to arrest Tokola, he was
Article 22.16 of the Code of Criminal unfairly deprived of his statutory right to
Procedure provides: exoneration.1
(b) For other good cause 1 At trial, Mendez also argued
shown and before the entry of that he was entitled to exoneration.
a final judgment against the
Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)
Article 22.13 of the Texas Code of custody if Defendant Robert Mendez
Criminal Procedure provides a would contact that agency and make a
statutory defense to forfeiture formal request" is supported by factually
proceedings, exonerating sufficient evidence. At the hearing, the
defendants and sureties in certain following exchange took place between
limited circumstances. See Tex. Sergeant Torres and counsel for the
Code Crim. Proc. art. 22.13(a)(1)- State:
(5). One of those circumstances is
detailed in article 22.13(a)(5) and COUNSEL: And it's your
provides that a defendant and his understanding that [Tokola]
sureties, if any, are exonerated got in the ambulance and she
from liability in a misdemeanor was taken to the hospital? I'm
case when the principal becomes guessing Luling she was
incarcerated "at the time of or not taken to.
later than the 180th day after the TORRES: No, she was
date of the principal's failure to taken to San Marcos because
appear." Id. art. 22.13(a)(5). In this I remember mentioning to
case, the trial court made several somebody if they wanted to,
findings relevant to Mendez's they could call San Marcos. I
exoneration defense, including that don't remember who talked to
Tokola "was never incarcerated as the bonding company. They
per Article 22.13(a)(5), Texas Code could call San Marcos, to the
of Criminal Procedure, until officer on duty at the hospital,
October 26, 2011." On appeal, and you [sic] once she had a
Mendez does not challenge any of doctor release, the jail could
these findings. Further, Mendez accept her then.
does not argue that, under the
evidence presented, he was entitled
to exoneration. Instead, [*7]
Mendez argues that the inaction of This is the only testimony concerning
the police constitutes good cause the parties' understanding regarding
for remittitur pursuant to article Tokola's custody during her transport
22.16(b) because it deprived him of and upon her arrival at the hospital.
an otherwise certain exoneration Torres's testimony [*8] regarding this
defense. issue is unclear, at best. To the extent the
fact in dispute is relevant to Mendez's
We first consider whether the trial request for a remittitur, we will assume
court's determination that "Mendez was without deciding that the evidence
advised that the San Marcos Police supporting it is factually insufficient.
Department would take [Tokola] into Accordingly, we next examine whether
Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)
the trial court's denial of remittitur was re-arrest of the accused; (5) whether the
an abuse of discretion, in the absence of surety received compensation for the
this fact. risk of executing the bond; and (6)
Mendez argues that the trial court whether the surety will suffer extreme
was provided with "good cause" to remit hardship in the absence of a remittitur.
all or part of the bond and abused its Id. An abuse of discretion occurs if the
discretion in refusing Mendez's request trial court acts without reference to any
to do so. See id. Mendez contends that guiding rules and principles or, in other
(1) he "did everything expected of him words, if the court acted arbitrarily or
to have [Tokola] arrested and unreasonably. Lyles v. State, 850 S.W.2d
incarcerated," and (2) "but for, the 497, 502 (Tex. Crim. App. 1993).
actions of [the officers], in clear At the hearing to finalize the bond-
violation of their statutorily imposed forfeiture judgment, Mendez had the
duties, Tokola was allowed to go free, burden of showing that the
depriving [Mendez] of his statutory right circumstances entitled him to a
to an exoneration . . . ." remittitur of some or all of the bond. See
Under the terms of article 22.16(b), McKenna, 247 S.W.3d at 719-20. In
the decision to grant or deny remittitur support of his remittitur request, Mendez
to the surety, in whole or in part, rests [*10] presented evidence relevant to one
within the sound discretion of the trial of the factors--his efforts on February 5,
court. McKenna v. State, 247 S.W.3d 2011, to have Tokola taken into custody
716, 719 (Tex. Crim. App. 2008). In by police for incarceration. However,
making its decision, the trial court must Mendez did not present any evidence of
keep in mind that the purpose of bail is the costs he incurred in these efforts, if
to secure the accused's appearance in any. Likewise, Mendez did not present
court; the law contemplates [*9] that the any evidence concerning the reason, if
accused's nonappearance will normally any, that Tokola failed to appear in
result in forfeiture of the bond amount. court. In fact, the trial court found that
Id. In addition, the trial court may Mendez failed to show good cause for
consider any factor relevant to good Tokola's original failure to appear in
cause, including (1) whether the court on January 7, 2013, and Mendez
accused's failure to appear in court was does not challenge this finding on
for good cause; (2) whether the delay appeal. Mendez also did not establish
caused by the accused's failure to appear that his compensation for his surety
in court prejudiced the State or harmed services was extraordinarily low in light
the public interest; (3) whether the of the risk undertaken. Finally, Mendez
surety participated in the re-arrest of the did not present any evidence concerning
accused; (4) whether the State incurred the prejudice, costs, and inconvenience,
costs or suffered inconvenience in the
Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)
if any, suffered by the State and the presented evidence of only one of the
public. relevant factors). We overrule Mendez's
Viewing the record as a whole, we first and second issues on appeal.
cannot conclude that the trial court's
failure to find good cause for remittitur CONCLUSION
under article 22.16(b) is against the Having concluded that the trial court
great weight and preponderance of the did not abuse its discretion, we affirm
evidence. As a result, we cannot the judgment of the trial court.
conclude that the trial court's decision to Scott K. Field, Justice
deny Mendez's request for remittitur was
arbitrary or unreasonable--that is, the Before Justices Puryear, Pemberton
record shows no abuse of discretion. and Field
[*11] See id. at 720 (concluding that Affirmed
trial court's denial of remittitur was not
Filed: October 25, 2013
abuse of discretion where surety
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
Gaile Nixon, Individually and A/N/F/ of R.M.V., a Minor,
Petitioner, v. Mr. Property Management Company, Inc. Et
Al., Respondents
No. C-3425
SUPREME COURT OF TEXAS
690 S.W.2d 546; 1985 Tex. LEXIS 852; 28 Tex. Sup. J. 384
May 1, 1985
SUBSEQUENT HISTORY: [**1] against Mr. Property Management
Rehearing Denied June 19, 1985. Company and Brett Davis. R.M.V. was
raped in a vacant unit of the defendants'
PRIOR HISTORY: From Dallas apartment complex. She was not a
County, Fifth District. resident or a guest at the complex. The
trial court granted Mr. Property and
Brett Davis' motion for summary
COUNSEL: Randall R. Moore, from judgment. The court of appeals affirmed
Dallas, for petitioner. the judgment. 675 S.W.2d 585. We
reverse the judgments of the courts
Jack Pew, Jr., (Jackson, Walker, below and remand the cause to the trial
Winstead, Cantwell & Miller), from court for a trial on the merits.
Dallas, for respondent.
Background
JUDGES: Hill, C.J. Justice Spears and R.M.V., age 10, resided at the
Justice Kilgarlin concurring. Dissenting Landmark Apartments. At about 7:00
Opinion by Justice McGee in which p.m. on August 7, 1981, while it was
Justice Wallace and Gonzalez join. still light, a young man abducted R.M.V.
from a sidewalk outside the Landmark
OPINION BY: HILL Apartments and dragged her to the
Chalmette Apartments, located
OPINION diagonally across the street [**2] from
[*547] This is an action for damages the Landmark Apartments. According to
filed on behalf of a minor, R.M.V., R.M.V.'s affidavit, her assailant took her
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
"directly to a vacant apartment at A. I think there are many
Chalmette Apartments." There, he raped reasons. One of the reasons
her, put her in the closet, told her not to would be for the simple
leave, and disappeared. There are no reason we're here.
other known witnesses. Chalmette
Apartments learned of the incident later A Dallas City Ordinance established
that night when a police officer spoke to minimum standards for landowners:
the maintenance man and the resident
manager. SEC. 27-11. MINIMUM
[*548] There was evidence STANDARDS,
concerning the unit's dilapidated RESPONSIBILITIES OF
condition. The responding officer, OWNER.
George Tilley, stated in his affidavit
that: "The glass was broken from the (a) Property
windows and the front door was off its standards. An
hinges. The apartment unit in question owner shall:
was empty, filthy, dirty and full of (6) keep the
debris." In his deposition, Brett Davis, doors and windows
the owner of Chalmette Apartments, of a vacant
admitted that leaving doors off hinges structure or vacant
and windows without panes would tend portion of a
to encourage vagrants to occupy these structure securely
apartments. Gene Jacobson, president of closed to prevent
Mr. Property Management Company, unauthorized entry.
stated in his deposition that one reason
for securing vacant units was to prevent
this type of crime from occurring. The Revised Code of Civil and Criminal
testimony was as follows: Ordinances of the City of Dallas §
27.11(a)(6).
Q. What is the reason why The summary judgment evidence
you should keep doorknobs included a list of police incident reports
on doors of vacant concerning the Chalmette Apartments
apartments? during the two years prior to the rape.
A. [**3] Numerous Police had investigated numerous crimes
reasons. One, I would say, to committed at the complex including one
secure -- Okay . . . . attempted murder, two aggravated
Q. Any other reason? robberies, two aggravated assaults,
sixteen apartment burglaries, four
vehicle burglaries, four cases of theft,
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
five cases of criminal mischief, and one through gross negligence. The court also
auto theft. held that the condition of the apartment
Gaile Nixon, R.M.V.'s mother and complex was [**5] not a proximate
next friend, filed suit alleging that Mr. cause of the rape because R.M.V.'s
Property Management Company, Inc., abduction and rape were not a
and Brett Davis (manager and owner, reasonably foreseeable consequence
respectively, of [**4] Chalmette thereof.
Apartments) and I. V. Investment, Inc.,
and James R. Liddle (manager and Summary Judgment
owner, respectively, of Landmark This is an appeal from a summary
Apartments) were liable in tort for judgment. The standards for reviewing a
R.M.V.'s injuries. Nixon settled with the motion for summary judgment are well
Landmark Apartment interests. Brett established. As mandated by this court,
Davis purchased Chalmette Apartments they are:
in March of 1981. He hired Mr. Property
to manage the complex near the end of 1. The movant for summary
that month. judgment has the burden of
Nixon contends that Mr. Property and showing that there is no
Brett Davis (for convenience both genuine issue of material fact
parties will be referred to as Mr. and that it is entitled to
Property) owed R.M.V. a duty of judgment as a matter of law.
reasonable care which duty was 2. In deciding whether
breached. She further alleged that such there is a disputed material
breach was a proximate cause of the fact issue precluding [*549]
rape and resulting injuries because this summary judgment, evidence
crime was reasonably foreseeable under favorable to the non-movant
all the attending circumstances. will be taken as true.
The trial court sustained Mr.
Property's motion for summary 3. Every reasonable inference
judgment and rendered judgment that must be indulged in favor of
Nixon take nothing. In affirming the trial the non-movant and any
court's judgment, the court of appeals doubts resolved in its favor.
held that, since R.M.V. was on Mr.
Property's property without its Montgomery v. Kennedy, 669 S.W.2d
knowledge and consent, R.M.V. was a 309, 310-11 (Tex. 1984); Wilcox v. St.
trespasser and Mr. Property's duty Mary's University of San Antonio, 531
toward her was no greater than not to S.W.2d 589, 592-93 (Tex. 1975). See
injure her willfully, wantonly, or also City of Houston v. Clear Creek
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
Basin Authority, 589 S.W.2d 671 (Tex. Using the mandated standard for
1979). reviewing summary judgment, we
conclude that a genuine issue of material
Duty [**7] fact exists as to Mr. Property's
In this case, the question of what duty breach of duty. If the trier of fact
Mr. Property owed to R.M.V. is concludes that Mr. Property violated the
answered by the ordinance. This ordinance without a valid excuse, Mr.
ordinance legislatively imposes a Property is negligent per se. This does
standard of conduct which we adopt not end our inquiry; we must still
[**6] to define the conduct of a determine if there is a material fact issue
reasonably prudent person. Moughon v. on the question of proximate cause.
Wolf, 576 S.W.2d 603, 604 (Tex. 1978);
Missouri Pac. R. Co. v. American Proximate Cause
Statesman, 552 S.W.2d 99, 103 (Tex. A material fact issue exists in this
1977). The unexcused violation of a case as to whether Mr. Property's
statute or ordinance constitutes negligence, if any, proximately caused
negligence as a matter of law if such R.M.V.'s injuries. The two elements of
statute or ordinance was designed to proximate cause are cause in fact and
prevent injury to the class of persons to foreseeability. Missouri Pac. R. Co., 552
which the injured party belongs. Id. A S.W.2d at 103.
reasonable interpretation of this Cause in fact denotes that the
ordinance is that it was designed to deter negligent act or omission was a
criminal activity by reducing the substantial factor in bringing about the
conspicuous opportunities for criminal injury and without which no harm would
conduct. In fact, Mr. Property's president have been incurred. Id. Viewing the
testified that one reason vacant summary judgment as we must, drawing
apartment units should be secured is to all reasonable inferences in favor of
prevent this type of criminal activity. An R.M.V., we conclude that a reasonable
ordinance requiring apartment owners to inference exists that, but for Mr.
do their part in deterring crime is Property's failure to comply with the
designed to prevent injury to the general ordinance regarding maintenance of its
public. R.M.V. falls within this class. apartment complex, this crime would
Since the ordinance was meant to protect have never taken place. There is
a larger class than invitees and licensees, evidence that the assailant took R.M.V.
and since R.M.V. committed no wrong "directly to a vacant apartment," the
in coming onto the property, these inference being that the assailant was
premise liability distinctions are acutely aware of the vacant unit's [**8]
irrelevant to our analysis. existence and embarked upon his course
of criminal conduct at this particular
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
time and place knowing that this unit Co., 663 S.W.2d 60 (Tex. App. -- San
was an easily accessible place in which Antonio 1983, writ ref'd n.r.e.);
to perpetrate this assault in isolation. Walkoviak v. Hilton Hotels Corp., 580
The court of appeals misplaced its S.W.2d 623 (Tex. Civ. App. -- Houston
reliance on City of Mobile v. Largay, [14th Dist.] 1979, writ ref'd n.r.e.).
346 So. 2d 393 (Ala. 1977), which had The RESTATEMENT (SECOND) OF
facts similar to ours. In Largay, the TORTS § 448 (1965) states:
Alabama Supreme Court placed heavy
emphasis on the fact that the assailant The act of a third person in
used the city's building to commit the committing an intentional tort
rape only as a last resort: or crime is a superseding
cause of harm to another
Clearly, the assailant did not resulting therefrom, although
even intend to use the the actor's negligent conduct
building until his first plan to created a situation which
carry the plaintiff away was afforded an opportunity to the
thwarted when he was unable third person to commit such a
to start her car. Only when he tort or crime, unless the actor
failed after six or seven at the time of his negligent
attempts to start the car, did conduct realized or should
he resort to the unlocked have realized the likelihood
cellar. that such a situation might be
created, and that a third
Id. at 395 (emphasis theirs). person might avail himself of
Finally, we turn to the question of the opportunity to commit
foreseeability. Foreseeability means such a tort or crime.
[*550] that the actor, as a person of [Emphasis added.]
ordinary intelligence, should have
anticipated the dangers that his negligent The evidence is replete with instances
act created for others. Missouri Pac. R. of prior violent crimes occurring at
Co., 552 S.W.2d at 103. Usually, the Chalmette Apartments. This record
criminal conduct of a third party is a certainly provides evidence that further
superseding cause relieving the acts of violence were reasonably
negligent actor from liability. [**9] foreseeable. Evidence of [**10] specific
However, the tort-feasor's negligence previous crimes on or near the premises
will not be excused where the criminal raises a fact issue on the foreseeability
conduct is a foreseeable result of such of criminal activity. See e.g., Walkoviak
negligence. Texas courts follow this v. Hilton Hotel Corp., (victim of robbery
rule. See Castillo v. Sears Roebuck & sued hotel; two robberies in the vicinity
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
of hotel in previous year); Kline v. 1500 entrance -- an area outside an
Massachusetts Ave. Apartment Corp., individual tenant's control --
141 U.S. App. D.C. 370, 439 F.2d 477 as exemplifying a callous
(1970) (victim of assault sued apartment disregard for the residents'
owner; 20 crimes in building in previous safety in violation of ordinary
year); Foster v. Winston-Salem Joint standards of care. Since there
Venture, 303 N.C. 636, 281 S.E.2d 36 was sufficient evidence for
(1981) (victim of assault sued mall concluding that the mugging
owner; 29 crimes in mall parking lot in was a foreseeable result of the
previous year); Butler v. Acme Markets, landlord's negligence, the
Inc., 89 N.J. 270, 445 A.2d 1141 (1982) jury's finding of liability was
(victim of assault sued grocery store; warranted.
seven assaults in parking lot in previous
year); Graham v. M & J Corp., 424 A.2d Id. at 441.
103 (D.C. App. 1980) (arson victims Drake v. Sun Bank & Trust Co., a
sued duplex owner; numerous previous case involving a kidnap from a bank
acts of vandalism in foyer, one prior parking lot and subsequent murder, is
attempted robbery, high crime area). especially instructive on this point. In
In Trentacost v. Brussel, 82 N.J. 214, Drake, 377 So. 2d 1013 (Ct. of App.,
412 A.2d 436 (1980), the New Jersey Fla. 1979), the court held that the widow
Supreme Court affirmed a jury award for failed to allege sufficient facts of
an assault victim and against the previous crimes to meet the test of
apartment owner. On the issue of foreseeability, but it remanded to allow
foreseeability, the court stated: her to amend. When the case was again
appealed, 400 So. 2d 569 (Ct. of App.,
There was ample evidence Fla. 1981), the court said allegations that
that criminal [**11] activity the bank was in high crime area [**12]
affecting the Monroe Street including allegations of similar crimes
building was reasonably on or near the facility were sufficient to
foreseeable. More than one state a cause of action for negligence.
witness testified to the high Although there is no evidence that
incidence of crime in the previous rapes had occurred at
neighborhood. Plaintiff's own, Chalmette Apartments, this is not a
unchallenged testimony prerequisite [*551] to finding a
related an attempted theft material fact issue on foreseeability.
within the building. Against
this background, the jury It is not required that the
could readily view the particular accident
absence of a lock on the front complained of should have
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
been foreseen. All that is SPEARS, KILGARLIN
required is "that the injury be OPINION
of such a general character
as might reasonably have KILGARLIN
been anticipated; and that the I agree with the result reached by the
injured party should be so court. However, I regret that the court
situated with relation to the has chosen to avoid consideration of the
wrongful act that injury to premise liability doctrine by opting for
him or to one similarly an easier path of relying on a city
situated might reasonably ordinance for the duty determination.
have been foreseen." [Cite Given an opportunity to render impotent
omitted.] one of the last vestiges of feudalism in
our common law, we nevertheless
Carey v. Pure Distributing Corp., 133 succumb to the blandishments of judicial
Tex. 31, 124 S.W.2d 847, 849 (1939) torpidity. In doing so, we carve but
(emphasis added). With a litany of prior another modification to the already
crimes, including other violent and exception-ridden premise liability
assaultive crime, at Chalmette doctrine. Rather than relying on the
Apartments, and with deposition happenstance of city actions and other
testimony that vagrants frequented the judicially sculpted exceptions, I would
area, a material fact question exists on cast aside doctrinal distinctions as the
the foreseeability of this crime as it primary determinative of a landowner's
relates to the proximate cause issue. liability and substitute a general duty of
We reverse the judgments of the ordinary care under the circumstances.
courts below and remand the cause to The present law of landowner
the trial court for trial on the merits. liability has its origins in the feudal
[**13] Concurring Opinion by period when a man's worth was
Justice Spears. measured by his property. A landowner
was then sovereign within his domain
Concurring Opinion by Justice and had total [**14] liberty to do with
Kilgarlin. his land as he pleased. F. Bohlen,
Dissenting Opinion by Justice Studies in the Law of Torts, 163 (1926).
McGee in which Justice Wallace and In the nineteenth century, before tort
Gonzalez join. principles were widely recognized or
applied, the English judiciary grew
CONCUR BY: SPEARS; KILGARLIN conscious of the danger that landowner
immunity posed to community safety;
CONCUR yet the judges were reluctant to leave the
liability determination to a jury of
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
potential land entrants. Consequently, but a little, and assume Rhonda was a
the judges created an entrant resident of Chalmette Apartments,
classification scheme to circumscribe the [*552] dragged out of a hallway into a
jury's tendencies to find landowners vacant apartment and thrice raped.
liable. The Industrial Revolution ushered Under such a tableau, the whole duty
in a greater number of accidents and the concept changes. Yet, but for an almost
English courts began to apply emerging irrelevant municipal ordinance, this
tort principles to the entrant court would maintain such duty fictions.
categorization scheme. Marsh, The The recent trend of the law, which I
History and Comparative Law of would join, has been away from basing a
Invitees, Licensees and Trespassers, 69 landowner's liability on his visitor's
L.Q. Rev. 182 (1953); Recent artificially determined purpose of entry.
Development, Torts -- Abrogation of England, the progenitor of this feudal
Common-Law Entrant Classes of vestige, adopted the Occupiers Liability
Trespasser, Licensee, and Invitee, 25 Act of 1957, which imposes upon
Vand. L. Rev. 623, 624 (1972). These landowners a "common [**16] duty of
classifications were introduced into the care" toward all visitors, excluding
United States over one hundred years trespassers. 5 & 6 Eliz. 2, ch. 31 (1957).
ago in Sweeny v. Old Colony & Newport The United States has been slower to
R.R., 92 Mass (10 Allen) 368 (1865). annihilate these archaic distinctions. But,
Since that time the majority of American in Kermarec v. Compagnie Generale
jurisdictions, including Texas, have Transatlantique, 358 U.S. 625, 630, 79
incorporated [**15] the entrant S. Ct. 406, 3 L. Ed. 2d 550 (1959), the
categorization system into substantive United States Supreme Court recognized
tort law. the inadequacies of the classifications
It is a system capable of producing and refused to extend the system to
anomalies that are at once both absurd admiralty. Id. at 631. The Court
and harsh. Just picture the court of explained that American courts have
appeals in this case groping for a carved numerous exceptions to the
designation for a ten year old girl who classification system to mitigate its
had been forcibly dragged off the street harshness. The Court acknowledged the
into an apartment complex. Then, out of system's difficulties:
obeisance to this outmoded entrant
characterization doctrine, that court Even within a single
concluded that little Rhonda was after all jurisdiction, the
a trespasser. 675 S.W.2d at 586. As a classifications and
trespasser, Mr. Property's duty to her subclassifications bred by the
was simply not to willfully injure her. common law have produced
Harsh, yes! Absurd? Substitute the facts confusion and conflict. As
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
new distinctions have been Russell, 125 Tex. 443, 82 S.W.2d 948
spawned, older ones have [Tex. Comm'n App. 1935, opinion
become obscured. Through adopted]).
this semantic morass the In 1968, California became the first
common law has moved, state to eradicate common law
unevenly and with hesitation, distinctions of land entrants. That state's
towards "imposing on owners supreme court held that landowners
and occupiers a single duty of would be required to exercise ordinary
reasonable care in all the care under the circumstances regardless
circumstances." of the tort [**18] victim's classification.
The California court recognized that the
Id. at 630-31. entrant's status could affect the liability
Exceptions to the classification question but it would only affect liability
structure are rampant in the jurisdictions in determining what "ordinary care
which still adhere to this system. See under the circumstances" required. The
Note, Tort Liability of Owners and court reasoned:
[**17] Possessors of Land -- A Single
Standard of Reasonable Care Under the A man's life or limb does
Circumstances Towards Invitees and not become less worthy of
Licensees, 33 Ark. L. rev. 194, 197 protection by the law nor a
(1979). Michigan recognizes an loss less worthy of
exception for social guests. Preston v. compensation under the law
Sleziak, 16 Mich. App. 18, 167 N.W.2d because he has come upon the
477 (1969). Kentucky modified the land of another without
traditional categories by increasing a permission or with permission
landowner's duty to known and frequent but without a business
trespassers on a limited area. Louisville purpose. Reasonable people
& N.R. Co. v. Spoonamore's Adm'r., 278 do not ordinarily vary their
Ky. 673, 129 S.W.2d 175 (1939). Texas conduct depending upon such
is no different. In this state, for example, matters, and to focus upon the
we have excepted from these status of the injured party as a
categorizations attractive nuisances ( trespasser, licensee, or invitee
Banker v. McLaughlin, 146 Tex. 434, in order to determine the
208 S.W.2d 843 [1949]); dangerous question whether the
conditions obvious to the owner ( State landowner has a duty of care,
v. Tennison, 509 S.W.2d 560 [Tex. is contrary to our modern
1974]), and anticipated trespassers if the social mores and
landowner engages in a dangerous humanitarian values. The
activity ( Gulf, C & S.F. Ry. Co. v. common law rules obscure
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
rather than illuminate the Electric Cooperative, Inc., 328 So.2d
proper considerations which 367 (La. 1976), cert. denied, 429 U.S.
should govern determination 833, 97 S. Ct. 97, 50 L. Ed. 2d 98
of the question of duty. (1976); Ouellette v. Blanchard [**20] ,
116 N.H. 552, 364 A.2d 631 (1976);
Rowland v. Christian, 69 Cal. 2d 108, Basso v. Miller, 40 N.Y.2d 233, 386
70 Cal. Rptr. 97, 443 P.2d 561, 568 N.Y.S.2d 564, 352 N.E.2d 868 (1976);
(1968). and, Webb v. City and Borough of Sitka,
Since Rowland, eight other 561 P.2d 731 (Alaska 1977). Six
jurisdictions have held that the invitee, jurisdictions have applied a uniform
licensee, trespasser categories are not standard of care for invitees and
determinative, [*553] and that licensees while excluding trespassers.
landowners are [**19] subject to a duty See Peterson v. Balach, 294 Minn. 161,
of ordinary care under the 199 N.W.2d 639 (1972); Wood v. Camp,
circumstances. Hawaii was the first 284 So. 2d 691 (Fla. 1973); Mounsey v.
state to follow California's lead. Holding Ellard, 363 Mass. 693, 297 N.E.2d 43
that there is no logical relationship (1973); Antoniewicz v. Reszczynski, 70
between the entrant classifications and Wis.2d 836, 236 N.W.2d 1 (1975);
the exercise of reasonable care for the O'Leary v. Coenen, 251 N.W.2d 746
safety of others, Hawaii abolished the (N.D. 1977); Poulin v. Colby College,
outdated trinity in Pickard v. City and 402 A.2d 846 (Me. 1979). True, many
County of Honolulu, 51 Haw. 134, 452 states have rejected abandonment of
P.2d 445 (1969). Colorado was the next premise liability standards, but only
state to institute a standard of reasonable fourteen states have done so by
care under the circumstances to avoid decisions from their courts of last resort.
harsh results and judicial confusion. In casting aside the premise liability
Mile High Fence Co. v. Radovich, 175 classification, the United States Court of
Colo. 537, 489 P.2d 308 (1971). The Appeals for the District of Columbia
District of Columbia soon joined those placed heavy reliance on the decreased
states casting out the archaic troika. prestige of the landowner in our society.
Smith v. Arbaugh's Restaurant, 152 U.S. The court said:
App. D.C. 86, 469 F.2d 97, cert. denied,
412 U.S. 939, 93 S. Ct. 2774, 37 L. Ed. We believe that the
2d 399 (1973). Five years later, five common law classifications
other states had also concluded that the are now equally alien to
entrant classification scheme was no modern tort law, primarily
longer viable. See Mariorenzi v. Joseph because they establish
DiPonte, Inc., 114 R.I. 294, 333 A.2d immunities from liability
127 (1975); Cates v. Beauregard which no longer [**21]
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
comport with accepted values [**22] law to adapt to societal,
and common experience. economic and moral changes:
Perhaps the protection
afforded to landowners by Legal classifications such as
these rules was once trespasser and licensee are
perceived as necessary in judicial creations which
view of the sparseness of land should be cast aside when
settlements, and the inability they are no longer useful as
of owners to inspect or controlling tools for the jury.
maintain distant holdings. The The principle of stare decisis
prestige and dominance of the was not meant to keep a
landowning class in the stranglehold on developments
nineteenth century which are responsive to new
contributed to the common values, experiences, and
law's emphasis on the circumstances. In our opinion,
economic and social the time has come to put an
importance of free use and end to our total reliance on
exploitation of land over and these common law labels and
above the personal safety of to allow the finder of fact to
those who qualified as focus on whether the
trespassers or licensees. landowner has exercised
"reasonable care under all the
Smith v. Arbaugh's Restaurant, Inc., circumstances." That standard
469 F.2d at 101. That court also [*554] contains the flexibility
recognized the importance of resource necessary to allow the jury to
allocation in our society and decided take account of the infinite
that, absent legislative action, the jury is variety of fact situations
in the best position to allocate society's which affect the foreseeability
resources regarding personal injury. of presence and injury, and
Classifying landowner liability decisions the balance of values which
as "moral and empirical judgments," the determines the allocation of
court reasoned that the community the costs and risks of human
representatives which comprise the jury injury.
are best qualified to handle these
questions. Id. at 102. Id. at 105.
Resource allocation was only one of Rather than create further
the bases for that court's destruction of refinements and exceptions to the
the land entrant categories. The court premise liability doctrine, we should
also relied on the genius of the common abolish it. The classifications of invitee,
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
licensee and trespasser are judicial Although R.M.V. entered the Chalmette
dinosaurs which served a purpose long apartment complex without Mr.
ago when society's values placed great Property's consent or knowledge, it
emphasis on a man's [**23] property would be manifestly unjust to classify
holdings. That day is gone, and with it her as a trespasser when she was
the public-be-damned attitude of J.P. dragged onto the property by a rapist. I
Morgan. Today's society places a greater would hold that Mr. Property must act as
emphasis on human safety. In a reasonable prudent person in
accommodating this modern trend, maintaining its property in a reasonably
however, I do not advocate that safe condition in view of all the
trespassers who enter with an intent to circumstances, including the likelihood
commit a crime be allowed to recover of injury to others, the seriousness of the
and would hold that a landowner as a injury, and the burden on the respective
matter of law has no duty to such a parties of avoiding the risk. By
trespasser other than as currently exists. establishing a duty under these
This case presents a perfect circumstances, Mr. Property would not
opportunity for casting aside one of the be an insurer of its property or have to
last remnants of a doctrine whose roots face unreasonable burdens in
are founded in the feudal system and maintaining its property.
which has no place in our modern I am not ready to discard the
society. This court should follow the traditional categories of invitee, licensee,
modern trend and abolish this antiquated and trespasser because they allow
doctrine. For the above reasons, I judicial certainty and predictable
respectfully concur. allocations of liability in most cases.
Concurring Opinion by Justice Adoption of an across-the-board
Spears. standard of reasonable care under the
circumstances would replace a stable
I concur in the judgment of the court, and established system of loss allocation
but I would not hinge the duty owed to with confusion and possibly inconsistent
R.M.V. only on the ordinance. In my and unpredictable rules of law. I am not
view Mr. Property's duty to R.M.V. sure that juries can be expected to
should not depend solely on the reconcile the multitude of social policies
existence of an ordinance or the location implicit [**25] in the assessment of
of the apartments within city limits. premises liability. Without the guidance
I would be willing to carve an of the categories, juries would be given a
exception to the traditional premises free hand to impose liability without
liability categories of invitee, licensee, reference to the social policies
and trespasser because the categories underlying the categories; and, if the
should not be applied [**24] rigidly. jury is to be instructed to consider the
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
former categories, we gain little or at the Landmark Apartments, but
nothing by jettisoning them. Gerchberg accomplished in a vacant unit of the
v. Loney, 223 Kan. 446, 576 P.2d 593, Chalmette Apartments. The question is
597 (1978). I am not alone in this answered by determining whether the
position. A clear majority of the states alleged negligence of the Chalmette
have refused to abandon the common- Apartments and Mr. Property was a
law status classifications of invitee, proximate cause of the injury. I would
licensee, and trespasser. Annot., 22 hold that the rape of R.M.V. was not
A.L.R.4th 294 (1983). proximately caused by any act or
The court has decided this case omission of these defendants as a matter
without creating a new exception to of law. Rather, the criminal conduct of
traditional premises liability categories an unknown person in this case was
or abandoning them in favor of a unforeseeable, and a superseding cause.
reasonable care under the circumstances Therefore, I dissent.
test. By hinging the duty owed to CAUSE IN FACT
R.M.V. on the ordinance, the court has The two elements of proximate cause
not foreclosed either an exception to or are cause in fact and foreseeability.
abandonment of the traditional Clark v. Waggoner, 452 S.W.2d 437,
categories in the future. I would retain 439 (Tex. 1970). In Kerby v. Abilene
the categories until we can evaluate the Christian College, 503 S.W.2d 526 (Tex.
ramifications of adopting the single 1973), this court adopted a "but for" test
standard of care in light of the results to determine cause in fact. Under Kerby,
experienced by states which have the alleged negligence is not a cause in
adopted such a standard. fact unless "but for the conduct the
accident would not have happened." 503
DISSENT BY: McGEE S.W.2d at [**27] 528.
DISSENT The majority's analysis of cause in
fact is premised on the fact that R.M.V.
[*555] MCGEE, Justice was taken "directly to a vacant
OPINION apartment at the Chalmette Apartments."
There were [**26] four defendants The majority views City of Mobile v.
in the trial court. The suit against Largay, 346 So. 2d 393 (Ala. 1977), as a
Landmark Apartments and its cause in fact case. The majority states
management company has been settled. that in Largay, the assailant did not take
The question in this cause is whether the Largay directly to the city museum. It is
Chalmette Apartments and Mr. Property upon this basis that the majority attempts
Management Company may be held to distinguish Largay. I find Largay
liable for the rape of a minor originating
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
indistinguishable and would follow it in failed to abduct the plaintiff or
the present cause. consummate the crime in the plaintiff's
In Largay, the plaintiff was abducted car, merely utilized the nearest available
on a public street beside a vacant city instrumentality. In the event that the city
museum. As Largay was leaving her car, museum was locked, the rape may have
an unknown man approached her, pulled occurred in a temporarily unoccupied
a knife, and forced her back into her automobile, business, or unfenced
own car. The assailant attempted to start vacant lot.
the car and subsequently "dragged her Largay is squarely on point with the
down the sidewalk and through an open case at bar in that here, had the rape not
cellar door into the vacant city museum occurred in a vacant unit of the
building owned by the City of Mobile." Chalmette Apartments, the nearest
346 So. 2d at 394. The Largay court did available place of solitude [**29] would
not place "heavy emphasis" on the have afforded a suitable location for the
assailant's use of the building as a last crime. Had R.M.V. been abducted from
resort. Indeed, the case did not, and a private apartment building and
could not, turn on the unknown dragged into an unlocked city pickup
subjective intent of the assailant. Rather, truck, would the City of Dallas be liable
the Largay court based its opinion on for the rape? had R.M.V. been abducted
foreseeability and [**28] held "as a from a city street and dragged into an
matter of law, that the use of the unlocked private garage, would the
unlocked cellar for perpetration of rape landowner be liable for the rape? Had
was not a reasonably foreseeable R.M.V. been abducted from a
consequence of the City's failure to neighborhood store and dragged to a
maintain the building." 346 So.2d at neighbor's backyard, would the neighbor
395. (Emphasis in original). Thus, the be liable? I think not. [*556] A missing
facts and reasoning of Largay recognize or unlocked door at the Chalmette
that the occurrence of the rape in the city Apartments was not a cause in fact of
museum was unforeseeable. R.M.V.'s rape. Under the facts presented
Although Largay is premised on here, the criminal's fortuitous choice of
foreseeability and cause in fact was not venue is not sufficient to satisfy the "but
discussed, I view Largay as support for for" test announced in Kerby.
the position that the alleged negligence FORESEEABILITY
of the Chalmette Apartments was not a I would also hold that the rape was
cause in fact of the rape. Largay and the not a foreseeable result of the alleged
case at bar are distinguished from failure to maintain a properly secured
numerous other cases in that both door on a vacant unit of the Chalmette
plaintiffs were dragged onto the Apartments. RESTATEMENT
premises. In Largay, the rapist, having
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
(SECOND) OF TORTS § 448 (1965), (SECOND) (1966) on the
provides that an intentional tort or crime shopkeepers [**31] and
is not a superseding cause if "the actor at merchants of Texas to
the time of his negligent conduct exercise reasonable care to
realized or should have realized the discover the sudden criminal
likelihood that such a situation might be acts of unknown and
created, and that a third person [**30] unidentified persons. . . .
might avail himself of the opportunity to
commit such a tort or crime." The
majority cites Castillo v. Sears Roebuck 663 S.W.2d at 66. In Walkoviak, the
& Co., 663 S.W.2d 60 (Tex. App. -- San plaintiff was assaulted in the parking lot
Antonio 1983, writ ref'd n.r.e.); and of the Shamrock Hilton Hotel. The suit
Walkoviak v. Hilton Hotels Corp., 580 was premised on Restatement § 344 and
S.W.2d 623 (Tex. Civ. App. -- Houston the innkeeper's alleged failure to supply
[14th Dist.] 1979, writ ref'd n.r.e.), for adequate security protection or guards.
the broad proposition that a tort-feasor's 580 S.W.2d at 625. Morris v. Barnette,
negligence is not excused in the case of 553 S.W.2d 648, 649 (Tex. Civ. App. --
foreseeable criminal conduct. I do not Texarkana, 1977, writ ref'd n.r.e.), and
agree with the majority's statement that Eastep v. Jack-in-the-Box, Inc., 546
"Texas courts follow this rule," or S.W.2d 116 (Tex. Civ. App. -- Houston
Restatement § 448 in a case such as this. [14th Dist.] 1977, writ ref'd n.r.e.), are
In Castillo, the plaintiffs were also both grounded on section 344. Our
approached in a Sears store, told to step courts of appeals are split on the
outside, and assaulted on the parking lot. question of whether a landowner, under
The Castillo opinion was not based on section 344, has a duty to foresee and
Restatement § 448. Rather, the court guard against criminal conduct occurring
focused on the duty owed to the public on the premises. In addition, this court
by a possessor of land who holds the has never recognized the application of
premises open to the public for business either section 344 or section 448.
purposes. RESTATEMENT OF TORTS Therefore, liability due to the criminal
(SECOND) § 344 (1965). Indeed, the acts of unknown third persons is far
Castillo court expressly refused to from the settled rule of law which the
impose liability based on section 344: majority suggests.
The distinction between liability
It is our opinion that it based on sections 344 and 448 is
would be patently unfair and significant. Under section 344, the
unjust to impose the vague innkeeper or business [**32] owner
duty of section 344, who throws his premises open to the
RESTATEMENT OF TORT public has a higher duty to exercise
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
reasonable care because of the purpose Neither the apartment owner nor
for which the public has entered. It is a manager had knowledge of other
significant extension to hold that under instances of crime from which they
section 448, a landowner may be held realized the possibility of rape.
liable if he fails to foresee and guard Therefore, the first prong of Restatement
against criminal attacks originating off § 448 cannot be the basis for liability in
the premises, but accomplished on the this cause.
landowner's property. Indeed, section Thus, the foreseeability issue in this
448 is not limited to landowners, but by cause is reduced to an analysis of the
its express terms applies to any negligent second prong of Restatement § 448.
tortfeasor. I would refuse to apply Should the Chalmette Apartments have
section 448 in this cause because, realized the possibility that a young girl
assuming that it should be adopted, the would be abducted off the premises,
criminal attack on R.M.V. was dragged into a vacant apartment, and
unforeseeable as a matter of law. raped?
Under Restatement § 448, liability is The majority assigns "deposition
imposed only if the actor (1) realized, or testimony that vagrants frequented the
(2) should have realized the likelihood area" as one of the two reasons for the
of the commission of an intentional tort existence of "a material fact question . . .
or crime by a third person. Under the on the foreseeability of this crime." I
facts of this cause, neither the realized find the evidence presented in City of
nor should have realized prong of Mobile v. Largay to be much more
Restatement § 448 has been met. compelling than the facts of the present
[*557] The first prong of section [**34] cause. In Largay, the court
448 has not been met because there is no stated that
showing in the record that the Chalmette
Apartments actually realized the there was some testimony
possibility of a rape occurring on its which indicated that prior to
premises because of its knowledge this incident the building had
[**33] of other specific instances of been broken into on several
crime. The president of Mr. Property occasions. According to other
stated in a deposition that he was not testimony, "winos" and
aware of any specific reported instances derelicts slept in the cellar
of crime in the Chalmette Apartments. area of the building; wine and
Davis, the owner of Chalmette whiskey bottles littered the
Apartments, stated that he was not aware area in and around the
of any criminal activity, rapes, assaults, building; and cars parked in
or burglaries occurring at the Chalmette the vicinity of the building
Apartments prior to the rape of R.M.V. had been broken into.
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
Photographs [demonstrated Under the majority's analysis, the owner
the] state of disrepair. is chargeable with such knowledge, and
therefore may be held liable for a crime
346 So. 2d at 394. However, in spite of occurring years later on the same
these facts, the Largay court held that no premises.
"reasonable inference in support of I view the majority opinion as
plaintiff's case on the issue of proximate unsupportable, and indeed, the majority
cause" was established as a matter of can cite no case which supports the
law. Id. at 395. I agree with the Largay proposition that knowledge of crimes
court that this evidence does not raise a occurring before purchase may be
fact issue on foreseeability. imputed to the present landowner.
The second reason relied on by the Therefore, the majority analysis is
majority for the existence of a fact fundamentally flawed in failing to
question is the occurrence of numerous recognize the indisputable proposition
instances of prior violent crime at the that the only crimes relevant in this
Chalmette Apartments. The majority cause are those occurring after [**36]
states that the rape in the present cause the purchase of the Chalmette
was foreseeable because in the two years Apartments in March, 1981. Taken in
prior to the rape of R.M.V., "one proper context, the record reflects that
attempted murder, two aggravated the majority's "litany of prior crimes,
robberies, two aggravated assaults, including other violent and assaultive
sixteen apartment burglaries, [**35] crime" is reduced to only one "assault,"
four vehicle burglaries, four cases of for property related burglaries, and one
theft, five cases of criminal mischief, case of criminal mischief.
and one auto theft" occurred at the [*558] The "assault" involved a
Chalmette Apartments. Deposition dispute between common law spouses in
testimony shows that the Chalmette which the husband kicked and choked
Apartments were purchased by Davis in the wife, causing minor scrapes and
March of 1981. Mr. Property assumed scratches to the body. The wife refused
management of the complex on March to press charges. The case of criminal
27, 1981. Crimes which occurred prior mischief involved the removal of a
to the purchase and assumption of mailbox door. As a result of the
management cannot possibly be imputed burglaries, a total of five television sets,
to these defendants so as to put them on four stereos, two radios, one clock, and
notice of the possible rape of R.M.V. one telephone were stolen from residents
Can it be said that through the purchase of the Chalmette Apartments. With the
of a home or building, a landowner is on exception of the intra-family "assault,"
notice of every crime occurring on the not one of the crimes which occurred
premises since the date of construction? after March of 1981 was even remotely
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
concerned with bodily harm. All were issue on foreseeability. The plaintiff was
non-assaultive, property related crimes. under a duty to raise a fact issue through
No rapes, murders, robberies, evidence of the [**38] existence of
aggravated assaults, muggings, or other other crimes of the same general
violent conduct indicating a likelihood character as the rape of R.M.V. No such
of future personal harm occurred on the evidence was offered. Viewing the
premises. plaintiff's evidence in the light most
Applying the majority's own test, as favorable to her, I find it impossible to
set out in Carey v. Pure Distributing think that because of the occurrence of a
Corp., 133 [**37] Tex. 31, 35, 124 domestic dispute and non-violent
S.W.2d 847, 849 (1939), the "general property crimes, the Chalmette
character" of this violent crime could not Apartments should have realized the
"reasonably have been anticipated" as a possibility of a violent rape originating
result of property crimes or domestic off the premises, but accomplished in a
disputes. Property crimes and domestic vacant apartment unit. Foreseeability
disputes are not of the same general does not exist in this cause as a matter of
character as a rape. Murders, rapes, law. The trial court correctly granted the
aggravated assaults, assaults, robberies, motion for summary judgment filed by
or other violent crimes between non- the Chalmette Apartments and Mr.
family members are crimes of the same Property.
general character as the rape of R.M.V. The majority opinion sets dangerous
If evidence of other violent crimes was precedent and shuns legal support in
included in the summary judgment holding that the plaintiff is entitled to a
proof, I might agree that a fact question jury trial. Therefore, I reject the
for the jury would exist under Carey. majority's result, as well as the rationale
However, there is no evidence of other underlying it. Under the majority
crimes of the same general character as opinion, the Chalmette Apartments and
the rape of R.M.V. Mr. Property are forced to defend a
We have held that the non-movant, in lawsuit because the plaintiff has been
order to overcome a motion for criminally assaulted on its premises. In
summary judgment due to the other cases which are similar to the
nonexistence of a material fact "must present cause, the plaintiff need only
present summary judgment proof when offer proof of repeated incidents of
necessary to establish a fact issue." City shoplifting, theft, or other property
of Houston v. Clear Creek Basin crime in order to overcome a motion
Authority, 589 S.W.2d 671, 678 (Tex. [**39] for summary judgment. This is
1979). It was "necessary" for the the evidence offered in the present
plaintiff to offer summary judgment cause. The crimes need not occur at a
proof in this cause establishing a fact time when the defendant owned the
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
property. The crimes need not be of the majority's position that this attack was
same general character as that foreseeable.
perpetrated upon the plaintiff. Under the The majority does cite Walkoviak as
majority opinion, any crime occurring an example of a case where two
on the premises is competent summary robberies in the vicinity of the hotel
judgment evidence. The majority established the foreseeability of criminal
opinion does great violence to our activity. However, the majority
summary judgment practice under Rule overlooks additional facts presented in
166-A and I fear the implications. In Walkoviak. The Walkoviak court
Clear Creek, this court stated that "the specifically noted that because the two
pre-1978 summary judgment rule had a "victims came or were brought to the
chilling effect on the willingness of trial hotel for help, the hotel was then aware
courts to utilize the intended benefits of of facts" which gave the hotel specific
the procedure. . . . The new rule attempts knowledge of past crimes, and therefore,
to encourage the trial court to utilize the made the hotel aware of the likelihood
summary judgment in appropriate of future crime on the premises. 580
cases." 589 S.W.2d at 676. The majority S.W.2d at 626. Thus, Walkoviak, as well
opinion will discourage rather than as four other cases cited by the majority
encourage the use of summary are all based on the landowner's actual
judgments in appropriate cases such as knowledge of specific instances of crime
the one [*559] before us. I cannot agree in the past. See Kline [**41] v. 1500
with such an analysis in the present Massachusetts Avenue Apartment Corp.,
cause. I will not agree with the 141 U.S.App.D.C. 370, 439 F.2d 477,
majority's analysis in the many cases 479 (D.C. Cir. 1970) ("The landlord had
which will follow from it. notice of these crimes and had in fact
Not one of seven cases cited by the been urged by appellant Kline herself
majority is on point or in support of its prior to the events leading to the instant
position. No case cited by the majority appeal to take steps to secure the
[**40] deals with an off-premises building."); Foster v. Winston-Salem
abduction of the plaintiff. No case cited Joint Venture, 303 N.C. 636, 281 S.E.2d
by the majority is premised on 36, 40 (1981) ("Defendants
Restatement § 448. No case deals with acknowledged that these incidents had
the inference of foreseeable violent been reported and that they were aware
crime merely because of the occurrence of them."); Trentacost v. Brussel, 82 N.J.
of prior non-violent property crimes and 214, 412 A.2d 436, 439 (1980) (plaintiff
domestic disputes. No such cases are at other times "had notified the landlord
cited by the majority because City of of the presence of unauthorized persons
Mobile v. Largay, the only case which in the hallways. Plaintiff claimed the
can be cited, stands squarely against the defendant had promised to install a lock
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
on the front door . . . .") §; and Graham In Butler v. Acme Markets, Inc., 89
v. M & J Corp., 424 A.2d 103, 105-06 N.J. 270, 445 A.2d 1141 (1982), the
(D.C. App. 1980) ("The tenants court held that an assault on the plaintiff
frequently complained to the landlord was foreseeable when five muggings
about the absence of an outer door lock. were committed during the preceding
They explained to the rental agent that four months. However, the facts
intruders and strangers entered the foyer presented in Butler [**43] are far from
through the open door and committed the facts presented in the instant cause.
acts of vandalism . . . [plaintiff] told the The assault suffered by the plaintiff in
rental agent of an attempted burglary Butler was of the same general character
through her window."). In cases where as the muggings previously occurring on
the landowner has actual knowledge, the premises. Therefore, the assault in
fewer criminal [**42] acts of the same Butler was foreseeable because the past
general character will suffice to make history of muggings made a future
the landowner aware of the likelihood of mugging probable and predictable, not
a criminal assault. In this cause we do merely conceivable or possible.
not have actual knowledge of criminal [*560] Any injury suffered by a
acts. We do not have crimes of the same member of our society may be said to be
general character as a rape. We have no possible. Yet, in order for an injury to be
crimes from which these defendants compensable, it must to a degree be said
should have realized the possibility of to be the probable result of a negligent
rape. Therefore, these cases simply have act or omission of the defendant. Indeed,
no application in an analysis of the facts the difference between an injury which
of this cause. to some degree is probable and one
In Drake v. Sun Bank & Trust Co., which is merely possible is the
400 So. 2d 569 (Fla. Ct. App. -- 1981), difference between liability and
the court merely stated that because of exoneration from liability. The facts in
other similar crimes occurring on the this cause demonstrate that it is possible
property, the landowner should have for a young girl to be abducted, dragged
known of the chance of an assault across a public street, and raped in a
against a customer on the premises. vacant unit of the Chalmette
Drake is not "instructive" on the point of Apartments. However, I would hold that
foreseeability because the court did not this possibility was not to any degree a
state the number of other crimes, the probable consequence of the alleged
frequency of occurrence, the type or failure to secure an apartment door. The
general character of crimes, nor how Chalmette Apartments should not have
long the criminal acts had been realized the likelihood of rape merely
occurring on the property. because of the occurrence [**44] of a
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)
domestic dispute and five prior property in fact nor a foreseeable result of the
crimes. alleged negligence of these defendants. I
I would adhere to the foreseeability would hold that proximate cause was
analysis set out by the court in City of disproved as a matter of law because the
Mobile v. Largay, 346 So. 2d 393 (Ala. criminal assault by an unknown assailant
1977). The Largay court held that the was a superseding cause.
criminal assault was unforeseeable as a I would affirm the judgments of the
matter of law. The criminal conduct of trial court and court of appeals.
an unknown assailant in this cause was Dissenting Opinion in which Justices
also unforeseeable as a matter of law. Wallace and Gonzalez join.
The injury to R.M.V. was neither caused
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
SAFETY NATIONAL CASUALTY CORP., AGENT
MANUEL LEYVA D/B/A ROCKY BAIL BONDS,
Appellant v. THE STATE OF TEXAS
NO. PD-0413-07
COURT OF CRIMINAL APPEALS OF TEXAS
273 S.W.3d 157; 2008 Tex. Crim. App. LEXIS 641
May 14, 2008, Delivered
NOTICE: PUBLISH JUDGES: MEYERS, J., delivered the
opinion of the Court, in which KELLER,
SUBSEQUENT HISTORY: Rehearing P.J., and PRICE, WOMACK,
denied by In re Safety Nat'l Cas. Corp., JOHNSON, KEASLER, HERVEY,
2008 Tex. Crim. App. LEXIS 1004 (Tex. HOLCOMB, and COCHRAN, JJ.,
Crim. App., Aug. 20, 2008) joined. COCHRAN, J., filed a
concurring opinion.
PRIOR HISTORY: [**1]
ON APPELLANT'S PETITION FOR OPINION BY: Meyers
DISCRETIONARY REVIEW FROM
THE EIGHTH COURT OF APPEALS OPINION
EL PASO COUNTY. [*158] Appellant, Safety National,
Safety Nat'l Cas. Corp. v. State, 225 sought exoneration from the forfeiture of
S.W.3d 684, 2006 Tex. App. LEXIS a bond due to the incarceration of the
10305 (Tex. App. El Paso, 2006) defendant. See Article 22.13(a)(5) of the
Texas Code of Criminal Procedure. 1
COUNSEL: For APPELLANT: Ken W. The trial court entered a judgment in
Good, Tyler, TX. favor of the State for one half the
amount of the original bond and entered
For STATE: Arne Schonberger, ASST. findings of fact concluding that Article
COUNTY ATTORNEY, El Paso, TX; 22.13 (a)(5) unconstitutionally interferes
Jeffrey L. Van Horn, STATE'S with the trial court's discretion and with
ATTORNEY, Austin, TX. the finality of judgments. 2 Appellant
appealed, and the court of appeals
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
affirmed the judgment of the trial court. felony, at the
Safety National v. State, 225 S.W.3d 684 time of or not
(Tex. App.--El Paso 2006). We granted later than the
review to consider the constitutionality 270th day
of Articles 22.13(a)(5) and 22.16(a). We after the date
hold that the statutes are constitutional of the
and remand the cause to the trial court. principal's
failure to
1 Unless otherwise specified, all appear in
future references to Articles refer court.
to the Texas Code of Criminal
Procedure.
2 The relevant [**2] part of FACTS
Article 22.13 states: Appellant posted a $ 10,000 bond on
(a) The following causes, and behalf of Willie Guerrero, who was
no other, will exonerate the charged [*159] with felony theft and
defendant and his sureties, if any, was due to appear for a hearing on
from liability upon the forfeiture March 25, 2004. When a Safety National
taken: employee learned that Guerrero failed to
appear at the hearing, she located him
5. The incarceration of and informed the court coordinator that
the principal in any Guerrero would appear that afternoon.
jurisdiction in the United Instead, the coordinator told Appellant
States: to bring Guerrero to court the following
morning. Guerrero appeared the
(A) in the following morning and gave the trial
case of a judge several reasons for his failure to
misdemeanor, appear at his scheduled time, including
at the time of the weather, car trouble, and that he had
or not later forgotten. The trial judge was offended
than the 180th by Guerrero's attitude and, [**3] as a
day after the result, entered a judgment nisi forfeiting
date of the the bond and placed Guerrero in
principal's custody. He was later released on a new
failure to bond. At the final hearing on the
appear in judgment nisi, Appellant argued that it
court; or was entitled to exoneration under Code
(B) in the of Criminal Procedure Article
case of a 22.13(a)(5) because Guerrero was
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
incarcerated the day after his failure to allowing defendants to wonder [sic] in at
appear. The court entered a judgment for a time and date of their own choosing."
the State for $ 5,000 plus court costs and
entered findings of fact and conclusions 3 See Article V, § 1 ("The judicial
of law stating that Article 22.13(a)(5) is power of this State shall be vested
unconstitutional. in one Supreme Court, in one Court
The trial court included the following of Criminal Appeals, in Courts of
in its findings of fact and conclusions of Appeals, in District Courts, in
law: Article 22.13(a)(5) affects the County Courts, in Commissioners
timing and the finality of judgments and Courts, in Courts of Justices of the
interferes with the core powers of the Peace, and in such other courts as
court and the administration of justice; may be provided by law. The
the statute hampers the discretion of the Legislature may establish such
court in controlling the time of trials and other courts as it may deem
judgments because "to avoid multiple necessary and prescribe the
post-judgment actions, further tying up jurisdiction and organization
its docket, it would have to wait 9 thereof, and may conform the
months to enter a final judgment" and it jurisdiction of the district and other
places virtual time and amount limits out inferior courts thereto."); Article V,
of the discretion of the court; Article V, § 8 ("District Court jurisdiction
Sections 1 and 8, of the Texas consists [**5] of exclusive,
Constitution 3 vest power over bond appellate, and original jurisdiction
forfeitures in the judicial branch and of all actions, proceedings, and
Article 22.13(a)(5) [**4] interferes with remedies, except in cases where
that power; the stated purpose of a bond exclusive, appellate, or original
is to have an orderly docket by having jurisdiction may be conferred by
defendants appear on time and for this Constitution or other law on
sureties to assist with that-to allow a some other court, tribunal, or
defendant to interfere with the court's administrative body. District Court
docket by not showing up for trial judges shall have the power to
"without forfeiture of any portion of the issue writs necessary to enforce
bond would cause future, similar their jurisdiction.The District Court
behavior by the defendants in this case shall have appellate jurisdiction
and by other Sureties and accused and general supervisory control
persons"; and, taking away "discretion to over the County Commissioners
order payment of all or part of a bond Court, with such exceptions and
vitiates the purpose of a bond and would under such regulations as may be
create havoc with the Court's calendar, prescribed by law.").
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
Appellant appealed, arguing that the attached to either of the others,
trial court's failure to exonerate was except in the instances herein
error and that the legal conclusions expressly permitted."
regarding Article 22.13(a)(5) were Appellant filed a petition for
erroneous. The court of appeals discretionary review asking us to
overruled these arguments and determine whether the court of appeals
considered only Appellant's argument properly found that article 22.16(a) of
that it was entitled to mandatory the Texas Code of Criminal Procedure is
remittitur under Article 22.16(a) because unconstitutional based on a violation of
Guerrero was released on a new bond in the separation-of-powers provision in
[*160] the case. The court of appeals the Texas Constitution. We additionally
held that the current version of Article granted review on our own motion to
22.16(a) violates Article II, section 1, of determine whether article 22.13(a)(5) of
the Texas Constitution 4 because it the Texas Code of Criminal Procedure is
provides for mandatory remittitur at any [**7] unconstitutional based on a
time prior to final judgment if the violation of the separation-of-powers
defendant principal is released on new provision in the Texas Constitution.
bail [**6] in the case or the case for
which bond is given is dismissed. In ARGUMENTS OF THE PARTIES
doing so, the legislature has removed the
trial court's discretion to remit the bond Appellant argues that articles 22.13
in the event new bail is given or the and 22.16 do not order a trial court to
criminal case is dismissed. Safety alter a final judgment and do not tell the
National, 225 S.W.3d 684, 691-92. trial court when it can enter a final
judgment. Rather, Article 22.13 provides
4 Article II, § 1, discusses the affirmative defenses for the surety, and
Division of Powers and states, Article 22.16 sets out the limited
"The powers of the Government of situations wherein the surety may seek
the State of Texas shall be divided remittitur of the bond prior to final
into three distinct departments, judgment. Even after final judgment,
each of which shall be confided to Chapter 22 allows a special procedure
a separate body of magistracy, to under which the surety may seek the
wit: Those which are Legislative to return of a portion of the bond amount.
one; those which are Executive to See Article 22.17. The legislature
another, and those which are amended Chapter 22 in 2003, removing
Judicial to another; and no person, the limitations on the trial court's ability
or collection of persons, being of to enter a final judgment and setting out
one of these departments, shall the situations in which a bondsman is
exercise any power properly entitled to a full remittitur if the request
is made while the court has jurisdiction
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
over the case. The time limits in Article who are on bond and fail to appear or
22.13(a)(5) apply to the surety, not to build more jails to hold those who are
the trial court. They are an expiration not released on bond.
date on the surety's ability to use the The State argues that, through
defense that the principal is incarcerated, Articles 22.13(a)(5) and 22.16, "the
not a mandate telling the state when to Legislature told the Court what
enter a judgment; thus, the time periods judgment it must enter and in so doing
do [**8] not prevent the trial court from has improperly exercised power reserved
entering a final judgment at any time. to the judicial branch of government to
Article 22.16 also does not place time hear controversies and apply discretion
limits or restrictions on a trial court's to determine the amount of the
ability to enter a final judgment. It judgment" and "by requiring a zero
provides for mandatory remittitur prior judgment in all cases, no matter what the
to the entry of the final judgment only in circumstances, (i.e. the amount of the
the limited situation of the principal bond, the reason for missing court and
being released on new bail in the case or the delay caused), the Legislature is
if the case is dismissed, and for improperly usurping a judicial function."
discretionary remittitur for good cause This removes the court's power to
shown. consider facts related to the reason for
The time limits in the statutes simply the failure to appear and to enter a
place the burden on bondsmen to file a judgment based on those facts. Courts
motion for remittitur while the court still are also prevented by Article 22.13(a)(5)
has jurisdiction over the case and do not from entering a judgment for nine
place restrictions on the court's ability to months because there is no guidance for
enter judgment, therefore, the statutes do the court concerning situations wherein
not violate the separation-of-powers a final judgment is given prior to nine
doctrine of the Texas Constitution. months and the defendant is returned
Finally, Appellant argues that the after the judgment but before the nine
legislature has indicated an intent to months have expired. This interferes
reward bondsmen who assist the state in with the court's ability to control its
returning to custody principals who fail docket because the court's judgment
to appear, because the purpose of bail is would not actually be final until 270
to secure the presence of the accused, days [**10] had passed since, even if
not to be a revenue device or to be final judgment were entered, it would be
punitive or to substitute for [*161] a nullified or would have to be reformed if
fine. Without bondsmen, the court the defendant became incarcerated
dockets would be even worse, and the within that time period. The State claims
state would either have to hire more that subsequent appearance should not
officers to seek out defendants [**9] exonerate a forfeiture because that
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
would allow defendants to keep missing legislature amended Article 22.16 in
hearings until there are no witnesses or 2003 and moved the section that
evidence against him, and therefore, addressed the principal's incarceration to
there should be a penalty for failure to Article 22.13. In Armadillo Bail Bonds
appear at the designated time. Complete v. State 802 S.W.2d 237
remission of the forfeiture would mean (Tex.Cr.App.,1990), State v. Matyastik,
that the defendant is not really bound to 811 S.W.2d 102 (Tex. Crim. App. 1991),
appear and can create continuances at and Lyles, we held that the former
will. Because the court has the discretion statute was unconstitutional.
to set the amount of the bail, and the Considering the former version of
purpose of a bond is to assure the Article 22.16, which placed time
fulfillment of an obligation to appear in restrictions upon when a final judgment
court and to pay a penalty if that could be entered, 5 Armadillo held that
obligation is not fulfilled, the State the restrictions [*162] on the court's
asserts that it violates the separation-of- right to determine when to decide a case
powers doctrine for the Legislature to violated the separation-of-powers
make the bond unenforceable through provision of the Texas Constitution. We
forced exoneration and for the surety to stated, "We have held repeatedly that the
have the same risk whether the court sets separation of powers provision may be
a high or low bond. As such, the violated in either of two ways. First, it
Legislature has made failure to appear [**12] is violated when one branch of
an offense without a penalty, which government assumes, or is delegated, to
interferes with the orderly processes of whatever degree, a power that is more
the courts. The State points out that, in 'properly attached' to another branch.
[**11] Lyles v. State, 850 S.W.2d 497, The provision is also violated when one
501 (Tex. Crim. App. 1993), this Court branch unduly interferes with another
said that the old statute requiring branch so that the other branch cannot
mandatory remittitur at any time prior to effectively exercise its constitutionally
final judgment removed a trial court's assigned powers." Armadillo, 802
discretion. Under the same reasoning, S.W.2d at 239 (internal citations
forcing a court to enter a zero judgment omitted) (emphasis in original). We
against a bond also violates separation of explained that the judicial branch has the
powers. power to hear evidence, decide issues of
fact, decide questions of law, enter a
CASE LAW final judgment on the facts and the law,
The former version of Article 22.16 and execute the final judgment or
encompassed both the issues of the sentence, and the Legislature has
principal's incarceration and the authority over judicial administration, as
principal's release on new bail. The long as it does not infringe upon the
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
substantive power of the judicial branch. jurisdiction and the
Id. at 239-240. In Matyastik, we incarceration is verified
extended our holding in Armadillo, as provided by
eliminating the time restrictions in Subsection (b) of this
Article 22.16(c) and determining that article;
remittitur may occur anytime between (3) the principal is
forfeiture and the entry of a final released on new bail in
judgment. Matyastik, 811 S.W.2d at 104. the case;
We considered this issue again in Lyles
v. State and held that the mandatory (4) the principal is
remittitur provisions of Article 22.16 are deceased; or
void, but because Article 22.16(d) (5) the case for which
allows the trial court to [**13] remit all bond was given is
or part of the bond at the court's dismissed.
discretion prior to the entry of a final
judgment, that subsection does not (b) For the purposes of Subsection
violate the separation-of-powers. 850 (a)(2) of this article, a surety may
S.W.2d at 501. request confirmation of the
incarceration of his principal by
5 Former Article 22.16 stated: written request to the law
(a) After forfeiture of a bond enforcement agency of the county
and before the expiration of the where prosecution is pending. A
time limits set by Subsection (c) of law enforcement agency [**14] in
this article, the court shall, on this state that receives a request for
written motion, remit to the surety verification shall notify the court in
the amount of the bond after which prosecution is pending and
deducting the costs of court, any the surety whether or not the
reasonable costs to the county for principal is or has been
the return of the principal, and the incarcerated in another jurisdiction
interest accrued on the bond and the date of the incarceration.
amount as provided by Subsection (c) A final judgment may be
(e) of this article if: entered against a bond not earlier
than:
(1) the principal is
incarcerated in the (1) nine months after
county in which the the date the forfeiture
prosecution is pending; was entered, if the
(2) the principal is offense for which the
incarcerated in another
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
bond was given is a ultimately appearing in [*163] court
misdemeanor; or because bondsmen would have a
(2) 18 months after financial incentive to produce the
the date the forfeiture principal many weeks after he or she
was entered, if the originally failed to appear in court . . .
offense for which the [and] would give bondsmen consistency
bond was given is a for principals who were incarcerated,
felony. while allowing a judge to adjust the time
period as needed in a particular case."
(d) After the expiration of the time SENATE COMM. ON CRIMINAL
limits set by Subsection (c) of this JURISPRUDENCE, BILL ANALYSIS,
article and before the entry of a Tex. S.B. 1336, 78th Leg., R.S. (2003).
final judgment against the bond, As we stated in State v. Sellers, 790
the court in its discretion may remit S.W.2d 316, 321 (Tex. Crim. App. 1990),
to the surety all or part of the a judgment nisi alone does not authorize
amount of the bond after deducting recovery of a bond amount by the State.
the costs of court, any reasonable A judgment nisi is a provisional
costs to the county for the return of judgment that is not final or absolute,
the principal, and the interest but may become final. See Article 22.14.
accrued on the bond amount as Nisi means "unless," so a judgment nisi
provided by Subsection (e) of this is valid unless a party shows cause why
article. it should be withdrawn. In the case
(e) For the purposes of this before us, Appellant argues that there
article, interest accrues on the bond are two reasons that the judgment should
amount from the date of forfeiture be withdrawn. First, the [**16]
in the same manner and at the same defendant was incarcerated the day after
rate as provided for the accrual of his initial failure to appear, which, under
prejudgment interest in civil cases. Article 22.13(a)(5), triggers exoneration
from the forfeiture of the bond. Second,
ANALYSIS the defendant was released on new bond
in the same case after he was arrested on
In discussing [**15] the reasons for the warrant resulting from the judgment
the 2003 amendments to Articles 22.13 nisi, which is a reason for remittitur
and 22.16, the Legislature stated that, prior to final judgment under Article
"the state is more interested in having 22.16 (a).
the defendant appear than in receiving
forfeited bond money. Setting time The State reads Article 22.13(a)(5) to
limits on when bonds would be forfeited mean that the court cannot enter a final
would result in more defendants judgment for nine months because then
it would have "multiple post-judgment
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
actions" if the defendant returned after has been dismissed. It makes sense that
final judgment but within nine months when a new bond is issued in a case, the
after his failure to appear. However, old bond should be remitted; this does
Article 22.13 does not say that the trial not mean that a defendant can be on
court must wait until the time in bond somewhere else for some other
subsection (a)(5) lapses to enter a final case and be entitled to full remittitur.
judgment. The statute does not prohibit Both Articles 22.13 and 22.16 require
the entry of a judgment or dictate when remittitur only in specific, limited
the judgment must be entered. In fact, situations--situations in which the return
Article 22.13 says nothing about the of the defendant is certain (because the
entry of a final judgment--it simply defendant [**18] is incarcerated
provides the surety with a defense if the elsewhere), the return is secured by
defendant is incarcerated within nine another bond in the same case, or the
months after he fails to appear. If that return is unnecessary (because the case
term ends before the court enters a final has been dismissed). 6
judgment on the bond, under Article
22.13, the court must remit the amount 6 We note that there are other
of [**17] the bond. situations in the Code of Criminal
The State also implies that Article Procedure in which the legislature
22.13(a)(5) is triggered by the has limited the circumstances
defendant's incarceration, whether or not under which courts may provide a
he is returned, and that he will be requested remedy. For example, in
exonerated without ever appearing in Articles 11.07, § 4 and 11.071, § 5,
court, stating that "Article 22.13(a)(5) the legislature tells us under what
requires a zero judgment regardless of limited conditions we may consider
the crime for which the defendant is a subsequent application for writ of
arrested and without the actual return of habeas corpus.
the Defendant-Principal to the County of [*164] The point of Article
his prosecution." (Emphasis in 22.13(a)(5) is that, if the defendant is
Respondent's Brief on the Merits). This incarcerated when or shortly after he
is simply incorrect. As specifically failed to appear, securing his return to
stated in Article 22.13(b), a surety appear is quite easy and does not require
exonerated under subsection (a)(5) the assistance of a bondsman. Because
remains obligated to pay costs incurred the county would incur the cost to
by a county to secure the return of the transfer the defendant from another
principal. Similarly, the court must remit jurisdiction, Article 22.13(b) makes the
the amount of the bond under Article surety liable for any costs incurred by
22.16 if the defendant has been given the county to secure the return of the
new bond in the same case or the case defendant. But the statute does not
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
require a court to wait nine months can require a cash-only bond in lieu of a
before entering a final judgment, and surety bond. See Article 23.05(a). And
thus, does not interfere with a court's bail is not intended to be punitive or to
timing or finality of judgments. In this be a revenue device. Bail bonding is a
case, Guerrero was returned the day business; therefore, having to pay court
after his failure to appear and was in costs and interest for the time during
court prior [**19] to the forfeiture of which a defendant fails to appear is
the bond. He was placed in custody at incentive for the bondsman to secure the
the same time the court entered the attendance of the defendant at his
judgment nisi forfeiting the bond. And scheduled hearing. The surety does not
Appellant requested remittitur under have the same risk when the court sets a
Article 22.13 prior to the entry of final high bail as it has when the court sets a
judgment. Therefore, the State's low one, because a high bond has higher
hypothetical regarding Article 22.13 interest for the time it takes the surety to
forcing the trial court to wait nine return the defendant.
months before entering judgment does
not apply to this situation. CONCLUSION
We disagree with the State's Articles 22.13 and 22.16 do not
argument that there is no guidance for interfere with the trial court's ability to
the court concerning situations wherein enter final judgment, nor do they dictate
a final judgment is given prior to nine the time frame within which a trial court
months and the defendant is returned may enter a final judgment. The statutes
after the judgment but before the nine do not violate the separation-of-powers
months have expired. Article 22.17 doctrine and thus are not
specifically allows for a special bill of unconstitutional. The decision of the
review up to two years after a final court of appeals is reversed, and the
judgment has been entered, which may cause is remanded to the trial court.
include a request that all or part of the Meyers, J.
forfeited bond be returned. The State is
also incorrect that complete remission of Delivered: May 14, 2008
the forfeiture would mean that the Publish
defendant is not really bound to appear
and can create continuances at will and CONCUR BY: COCHRAN
that the Legislature has made failure to
appear an offense without a penalty. CONCUR
There are penalties, such as contempt
COCHRAN, J., filed a concurring
and additional criminal charges, that can
opinion.
be pursued to punish a defendant for
failure [**20] to appear, or the court
Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
OPINION notes, "Bail bonding is a business[.]" 1
The State discusses several valid Indeed it is. To the extent that the
reasons why Article 22.13, dealing with interests of the bail bond business and
the exoneration of a bail bond, may the needs of the criminal justice system
[**21] be a counterproductive statute are not on the same track, local and state
that ties the hands of judges and thwarts governments are free to make
the purpose of having a surety in the first appropriate adjustments. Courts do not
place. Nonetheless, I agree with the decide the wisdom of such laws, they
majority that these deficits do not rise to decide only their constitutionality.
the level of an unconstitutional [*165]
violation of the separation-of-powers 1 Majority Op. at 13.
doctrine. These are matters that are best I therefore join the majority opinion.
left to the Legislature and to local Filed: May 14, 2008
governments that may increase their
reliance upon non-profit Pretrial Publish
Services programs. The majority aptly
State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)
STATE OF TEXAS, APPELLANT v. BOB MATYASTIK,
ET AL., Appellees
No. 632-90
COURT OF CRIMINAL APPEALS OF TEXAS
811 S.W.2d 102; 1991 Tex. Crim. App. LEXIS 90
May 8, 1991, Delivered
PRIOR HISTORY: [**1] Petition This is a criminal bail bond forfeiture
for Discretionary Review from the Tenth case. The State petitioned this Court for
Court of Appeals; Robertson County. review on four grounds, two of which
we granted, to-wit: 1) to determine
whether the court of appeals erred in
COUNSEL: Attorney for appellant: finding Art. 22.16, V.A.C.C.P.,
Jimmie McCullough, D. A. & Dale constitutional; and 2) to determine
Freeman, Asst. D. A., Franklin, Texas. whether the court of appeals erred in
affirming the trial court's remittitur of a
Attorneys for appellee: Jane Matyastik final judgment without a bill of review
Vorwerk, Taylor, Texas, Bob Matyastik, or proper appellate procedure. Because
pro se, Cameron, Texas. we find Art. 22.16(a) and (c)(1),
V.A.C.C.P., unconstitutional we will
Attorney for State: Robert Huttash, reverse the court of appeals.
State's Attorney, Austin, Texas.
Herbert Clifton Sheeley, charged
JUDGES: En Banc. Miller, Judge. with the misdemeanor of violation of
Campbell, Judge, not participating. probation on an original charge of
driving while intoxicated, [*103] failed
OPINION to appear for [**2] trial on January 22,
1988. The trial court then rendered a
[*102] OPINION ON STATE'S judgment nisi for $ 2,500, the bond
PETITION FOR DISCRETIONARY amount, against the principal, Herbert
REVIEW Sheeley, and Bob Matyastik and Dolores
State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)
Sheeley, sureties. On June 27, 1988, ...
appellees filed a motion for remittitur (4) the principal is deceased; . . . Art.
pursuant to Art. 22.16, V.A.C.C.P., 22.16(c) provides:
alleging that the principal, Herbert
Sheeley, had died on May 23, 1988, (c) A final judgment may be entered
citing Art. 22.16(a)(4). Additionally, against a bond not earlier than:
appellant requested remittitur based on (1) nine months after the date the
the fact that the offense was a forfeiture was entered, if the offense for
misdemeanor and less than nine months which the bond was given is a
had passed since the bond forfeiture. misdemeanor; or
Art. 22.16(c)(1). The trial court ordered
(2) 18 months after the date the
remittitur on June 27, 1988. The State
forfeiture was entered, if the offense for
petitioned the trial court to vacate the
which the bond was given is a felony.
order, which was denied.
The State appealed the order of 1 Points one and two asserted that
remittitur to the Tenth Court of Appeals the trial court erred in granting the
raising sixteen points of error. 1 The remittitur order on June 27 because
court of appeals overruled all sixteen the trial court lacked jurisdiction,
points and affirmed the judgment of the the judgment having become final
trial court in an unpublished opinion. on June 20. Points three through
State v. Matyastik, et al., (Tex.App. -- six alleged insufficient evidence of
Waco, No. 10-88-162-CV, delivered the death of the principal on the
January 25, 1990). The critical question bond. Points seven through
raised in the court of appeals and in this fourteen alleged that Art. 22.16,
Court is the constitutionality of Art. V.A.C.C.P., was unconstitutional as
22.16, V.A.C.C.P. Specifically, two a violation of the separation of
sections of the statute are in issue. Art. powers. Points fifteen and sixteen
[**3] 22.16(a) provides in pertinent asserted trial court error in not
part: giving credence to the State's claim
(a) After forfeiture of a bond and for recovery on a contract theory if
before the expiration of the time limits the remittitur question was
set by Subsection (c) of this article, the resolved in appellant's favor.
court shall, on written motion, remit to [**4] The court of appeals found
the surety the amount of the bond after Art. 22.16 constitutional in its entirety.
deducting the costs of court, any This Court, however, has since found
reasonable costs to the county for the Art. 22.16(c)(2) unconstitutional as a
return of the principal, and the interest violation of the separation of powers
accrued on the bond amount as provided provision of the Texas Constitution.
by Subsection (e) of this article if:
State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)
TEX.CONST.art. 2, § 1. 2 See Armadillo S.W.2d at 240. In analyzing the statutory
Bail Bonds v. State, 802 S.W.2d 237 interference with the judiciary's "core
(Tex.Cr.App. 1990). power" [to enter final judgments], the
Court reasoned " . . . if Article
2 Article 2, § 1 of the Texas 22.16(c)(2) is valid, then the Legislature
Constitution provides: has the power to render the Judiciary
The powers of the Government impotent with respect to the entry of
of the State of Texas shall be final judgments." Id. at 241.
divided into three distinct
departments, each of which shall 3 The court of appeals in
be confided to a separate body of Armadillo Bail Bonds noted that
magistracy, to wit: Those which "nothing prevents the legislature
are Legislative to one, those which from imposing an interminable
are Executive to another, and those delay in obtaining final judgment."
which are Judicial to another; and Armadillo Bail Bonds v. State, 772
no person, or collection of persons, S.W.2d 193, 197 (Tex.App. --
being of one of these departments, Dallas 1989) (emphasis supplied).
shall exercise any power properly See Armadillo Bail Bonds, 802
attached to either of the others, S.W.2d at 239.
except in the instances herein [**6] As this Court noted, the
expressly permitted. separation of powers provision may be
In Armadillo Bail Bonds this Court violated when one branch exercises
held that the statute prohibiting entry of power that is more appropriately
a final judgment in a bail bond forfeiture connected with another branch or when
felony case until 18 months after [**5] one branch unduly interferes with
entry of forfeiture [Art. 22.16(c)(2) another to the extent that the other
unduly interfered with the judiciary's branch cannot effectively exercise its
effective exercise of its constitutionally constitutional powers. See Armadillo
assigned power to enter final judgments. Bail Bonds, 802 S.W.2d at 239 and cases
3
See TEX.CONST.art. 5, § 1 (judicial cited therein. Article 22.16(c)(2)
power constitutionally vested in certain restrained the court from entering a final
courts). This Court has envisioned such judgment in that case, a felony, for at
power to include inter alia the entry of a least a period of 18 months, thereby
final judgment on the facts and the law interfering with the judiciary's "core
and the execution of a final judgment power" of entering a final judgment.
[*104] or sentence. Kelley v. State, 676 Thus, the Court held the statute
S.W.2d 104, 107 (Tex.Cr.App. 1984) and unconstitutional because it violated the
cases cited therein. We reaffirmed this separation of powers provision of the
concept in Armadillo Bail Bonds, 802 State Constitution in that the statute
State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)
allowed the legislature to usurp a of a statute does not necessarily destroy
judicial function. Id. the whole act). See also Meshell v. State,
The case sub judice deals with a 739 S.W.2d 246 (Tex.Cr.App. 1987)
misdemeanor and thus activates section (separation of powers case discussing
(c)(1) of the statute, which prohibits the severability of statutes). We [**8] note
court from entering a final judgment in that subsection (a) is contingent upon the
such a case for a nine month time time limitations established in
period. Comparatively, Armadillo Bail subsection (c), and thus has no effect
Bonds was a felony case with an 18- without the invalid provisions. Recently
month time restriction, while the case at we stated in Jones that " . . . should part
bar involves a misdemeanor with a nine- of the bill be held invalid . . . 'the
month time limit. We find the reasoning remainder of the statute must be
with [**7] regard to section (c)(2) in sustained if it is complete in itself and
Armadillo Bail Bonds applicable to the capable of being executed in accordance
situation in the case at bar with regard to with the intent wholly independent of
section (c)(1), since both sections that which has been rejected.'" Id., slip
concern a legislatively imposed statutory op. at 2, quoting Tussey v. State, 494
restraint on a trial court's ability to S.W.2d 866, 870 (Tex.Cr.App. 1973).
utilize its power to enter final Because subsection (a) cannot be
judgments. We thus extend the executed or have any effect without
Armadillo Bail Bonds ruling to apply in utilizing the provisions of subsection (c),
misdemeanor cases, and therefore hold we hold that the portion of Art. 22.16(a),
Art. 22.16(c)(1), V.A.C.C.P., V.A.C.C.P., utilizing subsection (c) is
unconstitutional. invalid under Article 2, § 1 of the Texas
Constitution. 5 Thus, remittitur now may
Having determined that Art. be done anytime between forfeiture and
22.16(c)(1) and (2) unduly interfere with entry of a final judgment. The State's
the court's exercise of the judicial first ground for review is sustained.
function, we now examine whether the
same is true of Art. 22.16(a), which 4 Section 311.032(c) of the Code
provides in pertinent part: (a) After Construction Act reads as follows:
forfeiture of a bond and before the
expiration of the time limits set by (c) In a statute that does not
Subsection (c) of this article, the court contain a provision for severability
shall . . . (emphasis added). It is well or nonseverability, if any provision
settled that if one part of a statute is held of the statute or its application to
unconstitutional, the remainder of the any person or circumstance is held
statute continues to be valid. Tex. Gov't invalid, the invalidity does not
Code Ann. § 311.032(c). 4 Ex parte affect other provisions or
Jones, 803 S.W.2d 712 (invalidity of part applications of the statute that can
State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)
be given effect without the invalid
provision or application, and to this
end the provisions of the statute are
severable.
[**9]
5 Although I dissented in
Armadillo Bail Bonds, I strongly
adhere to the doctrine of "stare
decisis," which leads to the ruling
in the instant case.
[*105] Having decided the
constitutional issue in the case at bar, we
need not address the State's second
ground for review. The judgment of the
court of appeals is reversed and the
remittitur order of the trial court is
vacated.
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CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965
ARREST, COMMITMENT AND BAIL
CHAPTER 17. BAIL
Art. 17.01. Definition of "Bail"
"Bail" is the security given by the accused that he will appear and answer before
the proper court the accusation brought against him, and includes a bail bond or a
personal bond.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966.
Art. 17.02. Definition of "Bail Bond"
A "bail bond" is a written undertaking entered into by the defendant and the
defendant's sureties for the appearance of the principal therein before a court or
magistrate to answer a criminal accusation; provided, however, that the defendant
on execution of the bail bond may deposit with the custodian of funds of the court
in which the prosecution is pending current money of the United States in the
amount of the bond in lieu of having sureties signing the same. Any cash funds
deposited under this article shall be receipted for by the officer receiving the funds
and, on order of the court, be refunded, after the defendant complies with the
conditions of the defendant's bond, to:
(1) any person in the name of whom a receipt was issued, in the amount
reflected on the face of the receipt, including the defendant if a receipt was issued
to the defendant; or
(2) the defendant, if no other person is able to produce a receipt for the funds.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 2011, 82nd Leg., ch. 978 (H.B. 1658), § 1, effective
September 1, 2011.
Art. 17.08. Requisites of a Bail Bond
A bail bond must contain the following requisites:
1. That it be made payable to "The State of Texas";
2. That the defendant and his sureties, if any, bind themselves that the
defendant will appear before the proper court or magistrate to answer the
accusation against him;
3. If the defendant is charged with a felony, that it state that he is charged with
a felony. If the defendant is charged with a misdemeanor, that it state that he is
charged with a misdemeanor;
4. That the bond be signed by name or mark by the principal and sureties, if
any, each of whom shall write thereon his mailing address;
5. That the bond state the time and place, when and where the accused binds
himself to appear, and the court or magistrate before whom he is to appear. The
bond shall also bind the defendant to appear before any court or magistrate before
whom the cause may thereafter be pending at any time when, and place where, his
presence may be required under this Code or by any court or magistrate, but in no
event shall the sureties be bound after such time as the defendant receives an order
of deferred adjudication or is acquitted, sentenced, placed on community
supervision, or dismissed from the charge;
6. The bond shall also be conditioned that the principal and sureties, if any,
will pay all necessary and reasonable expenses incurred by any and all sheriffs or
other peace officers in rearresting the principal in the event he fails to appear
before the court or magistrate named in the bond at the time stated therein. The
amount of such expense shall be in addition to the principal amount specified in
the bond. The failure of any bail bond to contain the conditions specified in this
paragraph shall in no manner affect the legality of any such bond, but it is intended
that the sheriff or other peace officer shall look to the defendant and his sureties, if
any, for expenses incurred by him, and not to the State for any fees earned by him
in connection with the rearresting of an accused who has violated the conditions of
his bond.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), effective
January 1, 1966; am. Acts 1999, 76th Leg., ch. 1506 (S.B. 403), § 1, effective
September 1, 1999.
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CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965
AFTER COMMITMENT OR BAIL AND BEFORE THE TRIAL
CHAPTER 22. FORFEITURE OF BAIL
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.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 1981, 67th Leg., ch. 312 (S.B. 727), § 3, effective
August 31, 1981; am. Acts 1999, 76th Leg., ch. 1506 (S.B. 403), § 4, effective
September 1, 1999.
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.
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.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 2003, 78th Leg., ch. 942 (S.B. 1336), § 1, effective June
20, 2003.
Art. 22.16. Remittitur After Forfeiture
(a) After forfeiture of a bond and before entry of a final judgment, the court shall,
on written motion, remit to the surety the amount of the bond, after deducting the
costs of court and any reasonable and necessary costs to the county for the return
of the principal, and the interest accrued on the bond amount as provided by
Subsection (c) if the principal is released on new bail in the case or the case for
which bond was given is dismissed.
(b) For other good cause shown and before the entry of a final judgment against
the bond, the court in its discretion may remit to the surety all or part of the amount
of the bond after deducting the costs of court and any reasonable and necessary
costs to the county for the return of the principal, and the interest accrued on the
bond amount as provided by Subsection (c).
(c) For the purposes of this article, interest accrues on the bond amount from the
date of forfeiture in the same manner and at the same rate as provided for the
accrual of prejudgment interest in civil cases.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 1981, 67th Leg., ch. 312 (S.B. 727), § 5, effective
August 31, 1981; am. Acts 1987, 70th Leg., ch. 1047 (S.B. 185), § 3, effective
June 20, 1987; am. Acts 2003, 78th Leg., ch. 942 (S.B. 1336), § 2, effective June
20, 2003.
Art. 22.17. Special Bill of Review
(a) Not later than two years after the date a final judgment is entered in a bond
forfeiture proceeding, the surety on the bond may file with the court a special bill
of review. A special bill of review may include a 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
from the date of forfeiture. The court in its discretion may grant or deny the bill in
whole or in part.
(b) For the purposes of this article, interest accrues on the bond amount from
the date of:
(1) forfeiture to the date of final judgment in the same manner and at the same
rate as provided for the accrual of prejudgment interest in civil cases; and
(2) final judgment to the date of the order for remittitur at the same rate as
provided for the accrual of postjudgment interest in civil cases.
HISTORY: Enacted by Acts 1987, 70th Leg., ch. 1047 (S.B. 185), § 4, effective
June 20, 1987.
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CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965
APPEAL AND WRIT OF ERROR
CHAPTER 44. APPEAL AND WRIT OF ERROR
Art. 44.42. Appeal on Forfeitures
An appeal may be taken by the defendant from every final judgment rendered
upon a personal bond, bail bond or bond taken for the prevention or suppression of
offenses, where such judgment is for twenty dollars or more, exclusive of costs,
but not otherwise.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966.
Art. 44.44. Rules in Forfeitures
In the cases provided for in the two preceding Articles, the proceeding shall be
regulated by the same rules that govern civil actions where an appeal is taken or a
writ of error sued out.
HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966.
Texas Rules
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STATE RULES
TEXAS RULES OF CIVIL PROCEDURE
PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
SECTION 8. Pre-Trial Procedure
Tex. R. Civ. P. 166a (2015)
Rule 166a Summary Judgment
(a) For Claimant. --A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory judgment may, at any time after the adverse
party has appeared or answered, move with or without supporting affidavits for a
summary judgment in his favor upon all or any part thereof. A summary judgment,
interlocutory in character, may be rendered on the issue of liability alone although
there is a genuine issue as to amount of damages.
(b) For Defending Party. --A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory judgment is sought may, at any time, move
with or without supporting affidavits for a summary judgment in his favor as to all
or any part thereof.
(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 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.
(d) Appendices, References and Other Use of Discovery Not Otherwise on
File. --Discovery products not on file with the clerk may be used as summary
judgment evidence if copies of the material, appendices containing the evidence, or
a notice containing specific references to the discovery or specific references to
other instruments, are filed and served on all parties together with a statement of
intent to use the specified discovery as summary judgment proofs: (i) at least
twenty-one days before the hearing if such proofs are to be used to support the
summary judgment; or (ii) at least seven days before the hearing if such proofs are
to be used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. --If summary judgment is not
rendered upon the whole case or for all the relief asked and a trial is necessary, the
judge may at the hearing examine the pleadings and the evidence on file,
interrogate counsel, ascertain what material fact issues exist and make an order
specifying the facts that are established as a matter of law, and directing such
further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. --Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed by
depositions or by further affidavits. Defects in the form of affidavits or attachments
will not be grounds for reversal unless specifically pointed out by objection by an
opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. --Should it appear from the affidavits of
a party opposing the motion that he cannot for reasons stated present by affidavit
facts essential to justify his opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is
just.
(h) Affidavits Made in Bad Faith. --Should it appear to the satisfaction of the
court at any time that any of the affidavits presented pursuant to this rule are
presented in bad faith or solely for the purpose of delay, the court shall forthwith
order the party employing them to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur,
including reasonable attorney's fees, and any offending party or attorney may be
adjudged guilty of contempt.
(i) No-Evidence Motion. --After adequate time for discovery, a party without
presenting summary judgment evidence may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial. The
motion must state the elements as to which there is no evidence. The court must
grant the motion unless the respondent produces summary judgment evidence
raising a genuine issue of material fact.