Castaneda v. State , 2004 Tex. Crim. App. LEXIS 1030 ( 2004 )

OPINION

JOHNSON, J.,

delivered the opinion of the court,

joined by KELLER, P.J., MEYERS, WOMACK, KEASLER and HERVEY, J.J.

Appellant is a bail bondsman. He issued bail bonds for the principals in these five cases. Thereafter, the principals were detained by the United States Immigration and Naturalization Service (INS) and ultimately, some were deported. None of the principals appeared in court, in violation of the terms of the bonds. The trial court forfeited each of the bonds, and upon the state’s motion, appellant was ordered to pay the full amounts of the bonds. Appellant appealed those rulings. The court of appeals affirmed the trial court. Castaneda v. State, 55 S.W.3d 729 (Tex.App.-Corpus Christi 2001). The court of appeals held that “where the bail bondsman assumes the risk that the principal will be deported, as here, he is liable on the bond.” Id. at 730. Appellant sought discretionary review before this Court. We affirm in part and reverse in part.

The five principals are all Mexican nationals who were apparently in the United States illegally. Appellant posted bond for each of them. The face of four of the five bonds contained information, each with slightly differing wording, stating that it was noted that the principal is in violation of Code of Federal Regulations Title 8, § 315(3) & (4), and pursuant to a new law, would be taken into custody by the INS and transported to Los Fresnos, Texas. The fifth bond did not contain this explicit note on its face, but it is not disputed that appellant knew, when he issued the bonds, that all five principals were subject to detention by the INS.

In most instances, bondsmen are hired to obtain the release from custody of the principal. Such release may allow the principal to continue to work or attend school. Not infrequently, however, the posting of bond will have another use.

A principal who has charges pending in more than one jurisdiction may use bond as a way to exercise what little control may be available to a defendant in determining the order of disposition of the pending charges. If the principal wishes to first dispose of charges in jurisdiction A but is in the custody of jurisdiction B, posting bond in jurisdiction B will cause the principal’s transfer to jurisdiction A. If, after transfer of the principal to jurisdiction A, the surety surrenders the bond in jurisdiction B, jurisdiction B will file a detainer for the principal in jurisdiction A. Thereafter, when the charges in jurisdiction A are resolved, the principal will be returned to jurisdiction B. If this is the intended chain of events, the surety has accomplished exactly what he was hired to do, even though the principal remained in custody during the entire sequence.

In the cases before us, appellant posted bond for five principals, all of whom had detainers from the INS. After bond was posted on each of the state charges, each principal was transferred into INS custody and thereafter failed to appear in state court on the appointed date. The trial court forfeited each bond, and the state filed a demand for judgment on each forfeiture. The trial court granted judgment nisi in each case, and appellant appealed.

The court of appeals affirmed the judgments, saying;

This group of cases involves, essentially, one issue. That is, “Is a bail bondsman liable on the bond when the principal is deported prior to the time the principal is set to appear in court?” We hold that where the bail bondsman assumes the risk that the principal will be deported, as here, he is liable on the bond. Castaneda, 55 S.W.3d at 730. The issue decided by the court of appeals is, however, subject to a threshold inquiry: was the surety liable for the bond at all at the time the principal was set to appear in court? In one of these cases, the answer is “yes,” but in four of these cases, the answer is that either the surety already had been legally exonerated on the bond under Tex. Code Crim. Proc., art. 17.16 before the principal failed to appear, or the trial court had allowed appellant to surrender the bond before final judgment.

I.

We note that we have authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. In Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990), we explained that “[o]nce an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court’s discretion and any valid restrictive statute.” Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act.¹ We therefore may, in our discretion, consider the threshold issue of whether appellant was liable on the bonds at the time the principals were set to appear in court.

Surrender of surety bond is covered by Article 17.16 of the Code of Criminal Procedure ², which states;

Discharge of liability; surrender or incarceration of principal before forfeiture

(a) A surety may before forfeiture relieve himself of his undertaking by:

(1) surrendering the accused into the custody of the sheriff of the county where the prosecution is- pending; or

(2) delivering to the ¹ sheriff of the county where the prosecution is pending an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state.

(b) For the purposes of Subsection (a)(2)' of this article, the bond is discharged and the surety is absolved of liability on the bond on the sheriffs verification of the incarceration of the accused.

By its plain language, art. 17.16 releases a surety from liability on a bond when verification of the principal’s incarceration in another jurisdiction is requested and the sheriff is able to verify that incarceration. When incarceration in the receiving jurisdiction is verified, the surety is automatically released from liability; neither further action by the surety nor approval by a court is required. There is no requirement that the surety notify the trial court, or anyone else, that the bond has been surrendered or to request that a detainer or arrest warrant be entered so that the principal is subject to return to the sending jurisdiction.

In these cases, the other jurisdiction was federal. It appears from the record that appellant was hired to post bond so that the principals would be transferred to federal custody. After the bonds were posted and his principals transferred into INS custody, appellant filed, for three of the principals, the forms requesting verification by the Hidalgo County sheriff. In these three cases, the sheriff verified that the principal was in INS custody and provided a verification form. In these three cases, appellant then filed an Affidavit of Bondsman for Surrender of Principal, with the verification form attached, and requested the trial judge to issue a warrant for the arrest of the principal. Such requests are not required to release the surety from liability under the plain language of art. 17.16, but appear to have been courtesy notification to the trial court that the principal was no longer in the custody of Hidalgo County. However, in each case, the trial court refused to issue the warrant.

In due course, each case was called for trial, and in each case, the principal failed to appear. Even though, by operation of law, appellant had been released from liability on the three bonds, the state requested, and the trial court granted, a judgment nisi against appellant and each principal. Because appellant’s liability on those three bonds had been exonerated “on the sheriffs verification of the incarceration of the accused,” the trial court was without authority to find appellant hable for those bonds. Accordingly, we reverse and remand to the trial court for entry of a judgment in favor of appellant in those three cases, specifically, Oscar Oviedo Gutierrez (petition number 2012-01), Mario Ortiz Hurtado (2013-01), and Carlos Javier Ramos Medrano (2015-01).

II.

In the case of Julio Quilantan Pa-drón (2014-01), the record shows that no sheriffs verification was filed before his failure to appear on November 17, 1998. The day of the failure to appear, appellant filed an affidavit of surrender with the trial judge. Two days later, the trial court signed an order that appears to accept appellant’s surrender of the bond. The docket sheet on that day shows a notation:

“crt aprvd bond surrender (Castaneda Bail Bonds)

def at INS (Bayview) awaiting deportation

order signed[.]”

This notation is followed by what appears to be the initials of the trial judge.

The docket sheet further reveals that Quilantan Padrón was rearrested on June 12, 1999, for driving while intoxicated, and that the original charge was recalled on June 15. At that setting, both court and state files were noted as missing, although a subsequent notation indicated that the court file had been found. The trial court “set PR bond of $2500.00” and reset for June 29. This entry also bears the initials of the trial judge. Thus it appears that the trial court believed that there was no outstanding bond on the principal and ordered a new, personal bond.

On June 29, the file was again missing, and the case was reset until July 9. On July 9, the case was called without response. It was called again on July 13, again with no response, and the trial court granted judgment nisi It is unclear how the principal was released from custody, but appellant had been released from liability on the original bond, and the record does not show a surety as to the bond set on June 15. From the entries on the docket sheet, we conclude that appellant had been released from the bond that he posted on August 22, 1998, and the judgment nisi was granted as to the personal bond set on June 15, 1999. Accordingly, we reverse and remand to the trial court for entry of a judgment in favor of appellant in that case, specifically, Julio Quilan-tan Padrón (2014-01).

III.

In the case of Jose Garcia, (2016-01), the record shows that the sheriffs verification occurred on December 29, 1998. However, Garcia failed to appear on January 20, 1998. The record contains an order identical in form to the order releasing appellant from liability for Quilantan Padrón, but this order is unsigned. Thus, with respect to the bond for Garcia, appellant failed to relieve himself of liability on the bond before forfeiture, and we therefore address the merits of the three grounds for review presented in appellant’s petition.

The first ground for review asks “[wjhether a bail bond surety is liable on a bail bond forfeiture when its principal is deported prior to the time that the principal was required to appear in a Texas court.” As discussed above, art. 17.16 sets out the specific conditions under which a surety may be absolved of liability on a bond before forfeiture, i.e., on the sheriffs verification of the principal’s incarceration in the custody of another jurisdiction. It contains no provision for absolving liability where a principal is deported from the United States but is not shown to be in the custody of the foreign jurisdiction, and appellant has failed to cite any statutory or constitutional authority which contains such a provision. Further, appellant has not shown that the principal was, in fact, deported before his failure to appear or that he was in custody in any jurisdiction. Lacking such a showing, any decision on the ground presented would be an advisory opinion. We overrule ground for review one.

The second ground for review asks “[whether] a bail bond surety is hable after executing a bail bond where the sheriff never releases the principal on the bail bond but rather transfers the principal to the custody of the [INS].”

Article 17.29(a) requires that when “the accused has given the required bond, ..., he shall be at once set at liberty.” It contains no requirement that the principal actually be released from all custody, and appellant fails to cite any statutory or constitutional authority which contains such a provision.

In these cases, the sheriff did as the law requires and, upon receipt of the bond, released the principal from the custody of Hidalgo County and set him at liberty as to Hidalgo County. That is all the sheriff can legally do; he has no authority to accept a surety bond on a detainer filed by another jurisdiction. To require actual release of the principal to the street before a surety is hable on a bond could require the sheriff to either ignore outstanding warrants from other jurisdictions and release the principal to the street or risk holding a bond made worthless by failure to so release.

In support of exoneration, appellant invokes Tex.Cobe CRiM. PROC., art. 22.13(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.” (Emphasis added.) Appellant asserts that the principals were in federal custody and that such custody suffices as “some uncontrollable circumstance.”

Appellant cites a number of cases, both state and federal, that involve principals who failed to appear in court after sureties had made bond and the principals had been thereafter extradited to or placed in custody in other jurisdictions. However, even if we equate deportation to extradition, appellant has failed to prove that the principal was in fact actually deported to Mexico or the circumstances of such deportation. •

We do not, however, need to resolve the question of “uncontrollable circumstances.” Art. 22.13(3) concludes with the words “[t]he 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.”

Appellant posted bond on November 14, 1997. The case was called on January 20, 1998, but the principal did not appear. The trial court forfeited the bond, ordered that a capias issue and granted judgment nisi On December 18,1998, the case was recalled, but again the principal did not appear. The docket sheet indicates that the judgment nisi was still pending. The capias issued on January 14, 1999. Seven resets followed, with notations on two of them that the surrender of the bond was at issue. On August 10, 1999, the trial court granted the relief prayed for by the state, and, on August 11, 1999, signed a final judgment of bond forfeiture. At no time before final judgment did the principal appear, nor did anyone “show sufficient cause for not so appearing.” Therefore, by the plain language of the statute, “uncontrollable circumstances” cannot be deemed sufficient to exonerate the principal and his sureties. Accordingly, we overrule ground for review two.

IV.

Question three asks “whether a bail bond forfeiture final judgment in which there is no remittitur can bear any interest.” Appellant argues that pre- and post-judgment interest may be charged on a bond forfeiture only when the trial court also orders a remittitur, a reduction in payment of the full bond amount.

The record reflects that appellant raised this issue for the first time in the court of appeals. It is well settled that, before a party may complain on appeal concerning the award of pre- or post-judgment interest, he must in some way inform the trial court of his dissatisfaction with the judgment or the error is waived. See e.g., Allright, Inc. v. Pearson, 735 S.W.2d 240, 240-41 (Tex.1987); Miller v. Kendall, 804 S.W.2d 933, 945 (Tex.App.-Houston [1st Dist.] 1990, no writ); Western Construction Company v. Valero Transmission Company, 655 S.W.2d 251, 255-56 (Tex.App.-Corpus Christi 1983, no writ); McLemore v. Johnston, 585 S.W.2d 347, 349 (Tex.Civ.App.-Dallas 1979, no writ). Because appellant did not raise this issue in the trial court, he has failed to preserve error. Point three is overruled.

We affirm the court of appeals’ judgment with respect to Jose Garcia (2016— 01).

COCHRAN, J., filed a dissenting opinion, joined by PRICE and HOLCOMB, J.J.

1 . We recently decided another case on a threshold issue. In Ex parte Fierro, 79 S.W.3d 54 (Tex.Crim.App.2002), a seated and sworn juror was excused because the trial court had erroneously determined that the juror was related to the defendant within the third degree of consanguinity. Even though a claim asserting the erroneous determination of consanguinity had not been raised on appeal, examination of the issue was necessary to our holding that the trial court did not have authority to declare a mistrial in such circumstances.

2 . Unless otherwise indicated, all future references to Articles refer to the Code of Criminal Procedure.