LESLIE GORDON SQUIRES, PRINCIPAL, AND WARREN ALKEK D/B/A a & a BAIL BONDS, SURETY v. State ( 2004 )

    CAUSE NUMBERS 13-03-437-CV  

                                                                 13-03-438-CV  

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

WARREN ALKEK D/B/A A&A BAIL

BONDS, SURETY,                                                                       Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo

Memorandum Opinion by Justice Yañez

          In each of these cases, appellant, Warren Alkek d/b/a A & A Bail Bonds, appeals from a trial court’s judgment forfeiting a bail bond. By one issue, appellant argues that the trial court in each case abused its discretion by remitting the bond by only 15%. We dismiss for lack of jurisdiction.

 Facts

          The State filed a judgment nisi asserting that the principals in each of these cases, Squires and Garcia, failed to appear for hearings in their respective criminal proceedings. The judgment nisi recited that: (1) Squires and Garcia as principals and appellant as surety entered into an appearance bond payable to the State; (2) the bail bond was conditioned that the principals appear in the trial court until discharged by due course of law; (3) both principals failed to appear for their criminal hearings; (4) because of the principals’ failure to appear, the State was entitled to recover the amount of each bond from both the principals and appellant; and (5) the judgment nisi would be made final unless good cause was shown by the principal and surety within twenty days from the date citation was served.

          The record reflects that the State served appellant with the judgment nisi, but never served either of the principals. Appellant subsequently failed to appear, in each case, within twenty days after rendition of the judgment nisi. As a result, the trial court entered default judgment against each principal and appellant. After the trial court entered default judgment against the principals and appellant, appellant filed a motion for remittitur seeking a reduction in the bond amount. The trial court remitted each bond by 15%. In a single issue, appellant contends in each case that the trial court abused its discretion by remitting the bond by only 15%. We first address the State’s failure to provide notice to the principal in both cases.

              Statutory Judgment Nisi Notice Requirements

          In a bond forfeiture proceeding, notice to the principal of the judgment nisi is mandated by statute if the principal furnished an address on the bond. See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989); see Guy Williams d/b/a Freedom Bail Bonds v. State,114 S.W.3d 703, 709 (Tex. App.–Corpus Christi 2003, no pet.). The notice must be mailed to the principal’s address as shown on the bond. See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989). A rebuttable presumption attaches that the mailing mandated by article 22.05 occurred. Escobar v. State, 587 S.W.2d 714, 717 (Tex. Crim. App. [Panel Op.] 1979); see Williams, 114 S.W.3d at 709.

          Here, the record demonstrates that both principals listed their address on the bonds. The record also reflects, however, that neither principal was ever served. Moreover, at oral argument, the State conceded that it did not serve either principal with the judgment nisi. Because the record demonstrates that neither principal received appropriate service as required by article 22.05, we conclude that the trial court erred in entering judgment against the principals. See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989); see Williams, 114 S.W.3d at 709.   

Jurisdiction

          Jurisdiction of a court is never presumed. Garcia v. Comm’rs Court of Cameron County, 101 S.W.3d 778, 783 (Tex. App.–Corpus Christi 2003, no pet.). Our jurisdiction is established exclusively by constitutional and statutory enactments. Tex. Const. art. V, § 6; Tex. Gov’t code Ann. § 22.220 (Vernon 1989). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2003). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Garcia, 101 S.W.3d at 784.

          Except as otherwise provided in chapter 22 of the Texas Code of Criminal Procedure, bond forfeiture proceedings are governed by the same rules as other civil suits. Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon Supp. 2004); Alvarez v. State, 861 S.W.2d 878, 881 (Tex. Crim. App. 1992) (per curiam) (op. on partial reh’g).

          A bail bond forfeiture is not final and appealable until a final judgment, disposing of the principal and surety, is entered. See Williams, 114 S.W.3d at 706-11; Murray d/b/a Abel Bonding Co. v. State, 832 S.W.2d 444, 446 (Tex. App.–Beaumont 1992, no pet.).   

In Murray, our sister court, on facts analagous to this case, determined that because the trial court’s judgments failed to dispose of all parties, the court lacked appellate jurisdiction to hear the case. See Murray, 832 S.W.2d at 446.   

          Here, even if each principal had received appropriate service in each of the bond forfeiture judgments issued by the trial court, the court entered final judgment against appellant, but failed to enter final judgment against, or otherwise dispose of the principal. Consistent with the reasoning of our sister court in Murray, we conclude that the trial court erred by failing to enter final judgment against or otherwise dispose of the principals. See Murray, 832 S.W.2d at 446.

           Further, article 22.14 of the code of criminal procedure also requires that a judgment be final against both the principal and the surety. See Tex. Code Crim. Proc. Ann. art. 22.14 (Vernon 1989); Murray, 832 S.W.2d at 446. Under article 22.14, judgment rendered against the surety without rendition of judgment against the principal is erroneous and must be reversed. See Tex. Code Crim. Proc. Ann. art. 22.14 (Vernon 1989); see id. (emphasis added).

          Because the principals failed to receive notice mandated by article 22.05, and because the judgments are not final under article 22.14, we lack appellate jurisdiction to hear these appeals.

          Accordingly, we dismiss cause numbers 13-03-00437-CV and 13-03-00438-CV.

                                                                                           _____________________

                                                                                           LINDA REYNA YAÑEZ

                                                                                           Justice

Dissenting memorandum opinion

by Justice Errlinda Castillo

Memorandum opinion delivered

and filed this the 4th day of November, 2004.