Surety Insurance Co. of California v. State

ODOM, Judge

(dissenting).

Appellant, by his single ground of error, asserts that “the trial court erred in not setting aside the bond forfeiture inasmuch as the bond upon which the forfeiture is predicated is not a valid and binding undertaking in law.”

As stated in the majority opinion, two bonds were introduced at the hearing to show cause why the judgment nisi declaring the July 14, 1971, bond forfeited should not be made final. The state introduced the July 14, 1971, bond and appellant introduced the July 7, 1971, bond. Both bonds were in the amount of $5,000.00; both were executed in cause number 24,020 in the 34th District Court of El Paso County; both were signed by the same principal and surety, and recited the same conditions.

Appellant points out that under the terms of Article 17.09, V.A.C.C.P., the principal, having once given bail for his appearance, is not required to execute another bond unless a judge or magistrate so orders upon a finding that the original bond is defective, excessive or insufficient in amount, or that the sureties are not acceptable, or of other good and sufficient cause to require a new bond. Certainly a new bond may be required only upon such order, but that does not mean that a new bond may not be executed voluntarily, and from the record in this case there is no reason to believe that the second bond was not executed voluntarily. If appellant objected to any reason which may have been presented to request or require a second bond, challenge properly should have been made at that time and a ruling on the sufficiency of the first bond secured. However, the record does not reveal what reason actually motivated the execution of the second bond. For all that appears in the record, the second bond may have been executed and approved at the request of the principal, or even of the appellant. Having apparently voluntarily consented to the execution of a second bond, appellant waived any objection to the failure to comply with Article 17.09, V.A.C.C.P., if it was in fact applicable. In this respect the writer dissents from the majority in that (1) the record does not show appellant was required to execute the second bond in violation of Article 17.09, supra, and (2) even if appellant was so required, he waived objection to any violation by executing the second bond.

I further dissent because the majority does not demonstrate how a violation of Article 17.09, supra, would render the second bond not a valid and binding undertaking in law. Whether the second bond is valid and binding is determined by an examination of its own terms, and not by whether some other bond, binding or not, had been previously executed. It could well be argued that voluntary execution of a second bond, coupled with its approval and filing, would render the prior bond thereafter no longer a binding undertaking in law, on the theory that the new bond has been substituted for the first one, in the nature of a novation.

I therefore respectfully dissent.

MORRISON, J., joins in this dissent.