*1 (Tex.Cr.App. at 92 is affirmed. MALONEY, JJ., BAIRD and concur in
the result.
CLINTON, J., dissents. LYLES, al., Appellant,
Vernon P. et Texas, Appellee.
The STATE of
No. 1302-91. Texas,
Court of Criminal
En Banc.
Feb.
498
Carolyn Price, Arlington, Findley G.P. (Pat) Houston, Monks, appellant. McCullough, County Atty., Jimmie Franklin, Huttash, Atty., Robert State’s Austin, State. PETITION FOR
OPINION ON STATE’S DISCRETIONARY REVIEW WHITE, Judge.
This is criminal bail bond forfeiture a petitioned this case. The State Court grounds, one of which we review on two granted in to determine constitu- order tionality of TEX. CODE CRIM.PROC. 22.16(a). Although we find 22.- ANN. Art. 16(a) it utilizes the unconstitutional because TEX. CRIM.PROC. CODE 22.16(c), ANN. we will reverse Art. grounds. on other Appeals Court Initially, whether subsec we will address it a since was is constitutional initially granted re ground on which disposition However, ultimate view. hinge case on our decision will (Tex.Crim. State, 956 Makeig v. 830 S.W.2d and rea App.1992), adopting the decision soning Appeals Makeig of the Court (Tex.App . —Amaril therefore address lo We will the instant resolve case. and then forfei- This arose out of matter County Ver- Court. ture the Robertson bondsman, Lyles, professional P. non bond with Thomas on $1500 defendant-principal. Earl Marks as its in court on Decem- Marks failed to 7, 1989, property misdemeanor on a ber nisi was entered. offense and on December 16 and Marks was rearrested County jail. placed in On the Robertson 7, 1990, en- February Respondent filed tered trial court. the full amount of the his motion to remit 6,1990, along with a motion bond March modify to vacate or The trial court against entered the bond. denied his motions.
Respondent Lyles appealed the Tenth raising points six of er- ror. The Court of sustained the of the State Constitution points three addressed remittitur of government which occurs when one branch of judg the bond and therefore reversed the unduly interferes with another ex- branch’s published opin ment of the trial court in a constitutionally assigned pow- ercise of its (Tex. Lyles ion. ability to ers. Id. at 239. Since the enter *3 1991). App. question The raised in judgments power” final is a “core of the — Waco in Court of this Court is judiciary, legislature found that the un- constitutionality of Art. duly interfered with the exercise of this power by passing suspend- a statute which 22.16(a) provides pertinent part: Art. in up ed the entrance of a final (a) After forfeiture bond and before Thus, year to a and a half. Id. at 241. expiration by of the time limits set statute was found to be a violation of the article, Subsection of this the court separation powers provision of since it al- shall, motion, on written remit to the legislature usurp judicial lowed the surety the amount of the after de- function. Id. ducting court, any the costs of reason- county able costs to the for the return of Matyastik, applied this State v. Court principal, and the interest accrued on reasoning in announced Armadillo provided by the bond amount as Subsec- (c)(1) Bail Bonds to find section (e) of this article if: statute unconstitutional. Matyas State v. (1) is in incarcerated tik, 811 at 102. S.W.2d Where section county in prosecution which the is (c)(2) felonies, (c)(1) addresses pending; prohibits the statute the court from enter
ing
in a
case
misdemeanor
22.16(c) provides:
Art.
until nine months after
Be
forfeiture.
(c)(1)
requirement,
cause of the similar time
(c) A
may be entered
legislatively
was also found to be a
im
against a bond not earlier than:
posed statutory restraint on a trial court’s
(1) nine months after the date the for-
ability
judgments.
to enter final
at 104.
Id.
entered,
feiture was
if the offense for
reasoning
in Armadillo Bail Bonds
given
which the bond was
is a misde-
was therefore extended to also hold section
meanor; or
(c)(1)unconstitutional as a violation of the
(2) 18 months after the date the forfei-
separation
of the State
ture was
if the offense for
Constitution.
which the
felony.
bond was
is a
22.16(a)
22.16(c)
Article
Having
is at issue because it is
found
unconstitutional 1
dependent upon
provided
timeframes
in
this court
then considered in Matyastik
22.16(c).
22.16(c)
Article
22.16(a)
has been held un whether Art.
also interfered with
by
constitutional
this Court in
judicial
State v. Ma
the court’s exercise of the
function.
tyastik,
Article was first addressed this Armadillo Bail Bonds v. After forfeiture of a bond and before State, 802 S.W.2d at analysis 237. Our of the time limits set began by recogniz- article, Armadillo Bail Bonds of this the court ing that a separation added). violation of the (emphasis shall ... holdings Matyastik, 22.16(d)
1. After the expire applies. in Armadillo and must before We held 22.16(c) Article 22.16(c) was considered unconstitutional unconstitutional in Armadillo and Ma- entirety. in its Some confusion has arisen on 22.16(c) tyastik and therefore should not control adoption Ap this issue our of the Court of 22.16(d). applicability It was our peals Makeig decision in by adopting intention to reverse these decisions (Tex.App. opinion, In the — Amarillo Makeig. 22.16(c) there is a reference that the timeframes analysis In our hold that Matyastik, we were longer careful to note that if one a statute are no Remittitur valid. unconstitutional, is “the remainder done the trial court's instead be at if it the statute must sustained is com- anytime at discretion plete being capable itself and execut- judgment.3 Tex.Code CRIM.PROC.Ann. wholly ed in accordance the intent 22.16(d). Art. independent reject- of that which has been holding support Additional 104, quot- ed.” S.W.2d 22.16(d). found in Article ing Tussey discretion, court, permits a trial in its However, (Tex.Cr.App.1973). this Court remit a bond before the contingent found that subsection If to be read upon the forth in sub- time limitations set *4 without reference to the time limitations of (c). Matyastik, 104. section 811 S.W.2d at (c), subsection the trial court would no Therefore, portion we held that the of sub- longer The have this discretion. trial court (a) (c) section that is utilizes subsection have to remit the amount of the would 2, 1 the invalid under Article Section of upon surety. written motion of the bond (a) can- Texas Constitution since subsection reading a render subsection Such would any or have effect not be executed without impotent. construing that When statutes (c). utilizing provisions of the subsection conflict, two to be in the should be possible. harmonized where Tex.Gov’t This is now asked to deter Choice, 311.025(b); parte Ex § Ann. Code (a) to mine whether is read subsection be (Tex.Cr.App.1992); 7 Lind 828 S.W.2d or, (c)2, reference to subsection without (Tex.Cr. sey v. alternatively, find in the entire subsection App.1988); S.W.2d Stanfield latter the valid. We believe that the is (Tex.Cr.App.1986). It would interpretation. in correct As was noted 22.16(a) interpret improper be to therefore (a) contingent is subsection the dis in a manner which would remove upon the time limitations established court in Article cretion to the trial (c). (a) dependent is subsection Subsection 22.16(d). (c) upon to establish the time- subsection Furthermore, important distinc- a most mandatory frames for remittitur. Without 22.16(a)and 22.- between tion can be made deadlines, a these remittitur of forfeited 16(c) discretionary that which demonstrates mandatory any bond would be at Contrary continue. to remittitur should “judg is no the forfeiture because there dissents, position by the sub- (a). the advocated provision in ment” subsection Conse (a) provision does not have a (a) section quently, subsection cannot be executed for be Fi- any to entered. pro kind any or have effect without the invalid of (a) only under can nal subsection Matyastik, 811 at 104. visions. to (a) via the reference subsection void. We therefore be entered Subsection thus 22.16(a), 1§ under Article of specifically refer- invalid 2. More in Article the Thus, language ence made "... before remittitur now the Texas Constitution. expiration of the time limits set anytime may done forfeiture and between (c) of this article ...” judgment.” entry aof final point Respectfully, would out that we disagrees Judge Ma- his Baird that dissent. passage. "mandatory" is not used term discretionary tyastik that remittitur is now mandatory by virtue of the Since remittitur was entry anytime prior a at to of court (c), it follows that time limitations in subsection Instead, Matyastik judgment. he believes longer mandatory limitations it is if the time no actually mandatory, dis- that rather than stated sup- proposition is further are This eliminated. anytime cretionary, be done at remittitur discretionary language ported use of entry judgement. exact In the absence now be done.” "remittitur language Matyastik was follows: as mandatory provisions, that discre- we believe subsection cannot executed "Because 22.16(d) is tionary in Article remittitur as found utilizing provi- any have effect without logical successor. (c), por- we hold that the sions of subsection V.A.C.C.P., 22.16(a), utilizing sub- tion Art. (e), any provision. time after forfeiture as it does when an unconstitutional Alterna- 22.16(a) 22.16(d), if refer- is read without reference to the tively, even read without 22.16(c) (c), provides entry timeframes. ence to distinction, Given this it previously opin- As said we have this should survive even obvious ion, provide any does not 22.16(a) though is invalid. type to be entered. Conse- 22.16(c) quently, mandatory contin- separation violates the remittitur could perpetuity ue time- of the Texas the subsection Constitution pre- any it not utilized. If five imposes because time limits which frames are 22.16(a)(l)-(5) in- entering (principal vent from conditions under a court 22.16(a) Although provide county in which prosecu- ment. does not carcerated in kind, etc.) pending, deceased, tion is are ever reading provide met, trial for mandato- court would be forced to anytime ry at to final remit the when condi- bond matter judgement separation would tion is violate satisfied. Given powers reading provision. originally Such a would remittitur was intended to occur time, statutorily to remit do mandate a court a within a limited believe anytime prior of a final was the intended result. *5 judgment, thereby removing legislatively a view, 22.16(a) In our Article cannot have However, trial court’s discretion. enforce- any utilizing pro- effect without the invalid 22.16(d) ment sepa- of does not violate the 22.16(c). visions of We therefore hold that ration of it since leaves 22.16(a) void; however, is Article this sub- discretion the court a to remit for- in the controlling disposition is not anytime prior feited bond at of to a of the case at bar. judgment. We now turn to the instant case. The pause Judge We here Camp- to answer facts before us this matter are almost argues bell’s concerns. He his dissent Makeig identical to those in that is invalid of because the (Tex.Crim.App.1992), adopting S.W.2d 956 22.16(d) 22.16(c), reference to Article must opinion (Tex.App. — Amarillo also be invalid it because too utilizes 22.- 1990). Makeig, judgment In a nisi was 16(c). distinguish 22.16(d) would by We 19,1989 entered on June after the that, pointing 22.16(a), 22.16(d) out unlike is felony failed to on a court of discretionary 22.16(d) a provision. Article Id. at fense. then judgment Final was provides: approximately entered three months later. After the of the time limits Id. at 61. The appellant made a motion for
set of this article and $50,000 approximately remittitur aof before the judgment a final judgment one month after en was against bond, the the court in its discre- Id. at tered. 61. The trial granted court may remit the surety $25,- to or appellant’s all motion and returned suit, the amount of the bond after deduct- though less costs even court, ing the Id. judgment. costs of reasonable motion made after final costs to court for the return of the at 61. principal, and the interest on the accrued remittitur, reviewing Court provided by
bond amount as
Subsection Appeals
that the trial court
not err
held
did
(e) of this article.
by entering
expi-
before the
22.16(a), 22.16(d)
22.16(c)
Unlike
can
read
ration
be
ab-
of the timeframes
Article
22.16(c)
sent
the reference to
a
since
without
this subsection of
statute had
separation
powers problem
previously
that
is en-
held
been
unconstitutional
22.16(d)
Id.
countered with
When
at
Appellant
court.
61-62.
also
read,
argued
so
discretionary
by failing
remittitur
remains
the trial
erred
that
court
with
court anytime
apply
discretionary
por-
before final
to
statute,
22.16(d).
ment.
does
Id.
It
not become
tion of the
at
Article
Appeals correctly recog-
An abuse of discretion
exist
62. The Court of
showing
there is a
of sufficient cause
22.16(d)
discretionary re- when
nized
directs
that
comply.
for the accused’s failure to
See
judgment has not been
mittitur when final
However,
Makeig, supra at 62.
mere sub
had al-
entered.
Id. Since
sequent appearance by the accused is not
Appeals
ready
the Court of
been
complete remission of
sufficient cause for
apply.
held
did not
Id.
the forfeiture.
Id. at 62. Sufficient cause
support in
Appeals
found
generally
showing
party
that the
did
trial court’s decision to
two areas for the
recognizance intentionally
not break his
First,
partially remit the bond.
the Court
design
evading justice,
or
with
that since the motion for
held
excuse,
out a sufficient cause or reasonable
days
remittitur had been made within
such as unavoidable accident or inevitable
judgment, it
within the trial court’s
necessity preventing
appearance.
his
Id.
power
reform the
plenary
to
Although resulting
at 62-63.
extreme
Additionally,
329b.
Tex.R.Civ.Pro.
considered,
hardship
surety may
on the
be
power
Court of
balancing
consideration
be whether
was also found in
partially remit the bond
surety
compensation was received
22.17,
CRIM.PROC.Ann.
Tex.Code
taking
at 62-63.
the risk.
While
provides
year special
for a
This article
two
seeking
punish
surety
for the
to re-
that enables
bill
review
principal’s
appear,
failure to
the law does
grounds, the reform of
quest,
equitable
contemplate
noncompliance will
that such
remittitur of the bond
a final
result
in forfeiture of the bond amount.
Article, the decision to
amount. Under this
factors,
the court’s
Id. These
material to
grant
deny
entirely
the bill is
within
judgment, continue to
decision before final
the trial court. The
the discretion of
pertinent
subject
while the
request may
granted
part.
in whole or in
plenary powers of reforma
to the court’s
*6
Art.
at 63.
tion.
Id.
Appeals
In
the
of
found
Makeig,
Court
case,
In the
instant
showing of suffi-
that there had not been a
7,
February
Appel
was entered on
the
cient cause or reasonable excuse for
lant did not make a motion for remittitur
supra at 63.
Makeig,
accused’s absence.
6,
until March
1990. Since final
$25,000, less
the trial court remitted
Since
already
discretionary re-
had
been
costs,
$50,000 bond,
Ap-
the Court of
of a
apply.
article
did not
mittitur under
discretion.
peals could not find an abuse of
However,
part
remit
the court’s decision to
so,
of
doing
Id.
In
the Court
power
of the bond was within its
under
1)
following
important:
the
found the
facts
and Art. 22.17 Tex.
Tex.R.Civ.Pro 329b
more than seven
trial court had remitted
determine
Code Crim.Pro. We must now
($3,475) in
surety’s
times the
actual costs
not remit
the
whether
the decision to
client; 2) there
attempting to locate her
$1,500
in the instant case was an
showing of sufficient cause for
had been no
abuse of this discretion.
3)
absence;
principal had
principal’s
the
the
apprehended through the efforts
not been
determining
whether there has
and, 4)
the
had re-
surety;
discretion, it must
been an abuse of
it endured
compensation for the risk
ceived
court acted without refer
determined
the
the
under
bond.
or,
guiding
principles,
any
ence to
rules and
words,
case,
the court acted
appel
in other
whether
In the instant
unreasonably. Makeig,
any
arbitrarily or
that
lant/surety has not demonstrated
62;
attempting
to locate
Montgomery
incurred in
S.W.2d
costs were
372,
from
(Tex.Crim.App.1990). Arti
There is no evidence
principal.
S.W.2d
sufficient cause
guidelines
contains no
for the
the record that there was
cle 22.17
appearance
principal’s
discretion.
Makeig,
exercise of the court’s
absence
no evidence that
day. Additionally, there is
that it was id., unconstitutional,” (c)(1) validity at we implicate not appeals court of did to mean underscored sentence take the in of Article application or remittitur, taking into ac- “discretionary” cases, inconsistent with our manner or more enumerated count whether one including Matyastik.4 in remainder conditions legal con- Therefore, I understand the as 22.13, also Article satisfied. See decisions of this sequences of those three V.A.C.C.P. Court, following parts of Article 22.16 the “decision” of we reviewed Because all unconstitutional: have been declared State, appeals Makeig v. in the court of conditions in subsec- the enumerated but 1990), (Tex.App. S.W.2d — Amarillo (c); (a);5 portion all of subsection “reasoning sound” and its found (d) reading expira- opinion as our own without “After “adopt[ed] of subsection State, Makeig v. further comment” by the time limits set Subsection tion of perhaps (Tex.Cr.App.1992), and....” of this article noticing the Amarillo Court that without judg- entry of final Accordingly, before guidance did not have whatever appeals ment the trial court in its discretion opinion our might provided have been of the part of the amount remit “all or majority State supra, as bond,” making appropriate deductions suggest opinion in its here seems to 22.16(d) and by statute. Article prescribed judg “rushed to may well have n. (e). developed in the mar ment.” For reasons Bonds, Bail decision in Armadillo of this basis of our is removed formulation Court, supra. at 61-62. viz-. Third, portion refusing of forfeit- to remit a appeals [affirm- "The of the court of 22.16(d) and with Article ed bail in accordance ing and the that of the trial is reversed court] " i.e., (e), “[ajfter expiration time limits of the vacated. order the trial court is entry of final and before set say, appeals the court of erred That is to ap- judgment against The court of the bond.” constitutionality upholding of the re- reasoning point, that since peals overruled (a), provision and the mittitur in subsection expired eighteen and final months had not judge belief that the court was erred in the already the remit- been entered before ment had statutorily in full mandated to order remittitur therefore, terms, hearing, "by their subsec- titur nine month limitation. (d) (e) applicable to the not tions and were State, supra, Makeig on a circumstance, court’s actions present and the 550,000 prin- enough bond was certain that the judged by provisions." Id. at 62. their cannot be hearing cipal for a scheduled would Fourth, abusing alternatively, its dis- $3,000 spent that he some to find and surrender by refusing remittitur. to order cretion sufficient pursuant to Articles 17.16- him under a warrant appeal that neither subsec- The court of found 17.19, V.A.C.C.P., successful; but was not point applied, and overruled tions bail, entered nisi trial court forfeited viz', statute, the trial dehors the for reasons Sep- final on in June and made the “plenary power to reform its court retained 8; principal anoth- tember was later arrested in 329b(a), (e) judgment" under Tex.R.Civ.Pro. surety paid transport the costs to er state and being (g), filed the motion or remittitur *8 21; county prosecution September back to the timely may special bill of review be treated as a guilty principal plead to ten and was sentenced V.A.A.C.P.; basis, 22.17, on either under Article confinement; years on October moved discretion. court did not abuse its full, remittitur after forfeiture at 62-63. pursuant 22.- less costs and interest to Article Therefore, affirming judgment below 16(a)(1) (2); and on November the trial court appeals the constitu- court of did not treat $25,000, granted partial sum of (e), viability al- of Article and tional though less costs of suit. Id. at 60-61. position took the both are the State point appeal, error claim- PDR, On as well as two 2). (Appellee's on invalid Brief invalid, ing surety contended the the bond was reading qualifying particulars: condition other 5. That trial court erred in three First, entering judgment not included in than "After forfeiture of a bond” is earlier forfeiture, language eighteen impliedly unconstitutional in Ma- declared months after 22.16(c)(2) practical finding tyastik moment. The issue of Article unconstitutional on is of strength until bail is forfeit- of Armadillo Bail Bonds v. remittitur cannot arise after 22.01, 22.02, 22.10, 22.11, See, (Tex.App. e.g., ed. Articles — Dallas appeals point court of overruled that on the 22.125 and 22.14. cause, however, appellant requiring requested the instant remittitur if fi did not move remittitur until the nal The court reasoned second after judgment nisi was made In this Lyles was entitled to remittitur under final. situation alternative remedies noticed 22.16(a) though “even present [he] appeals in Makeig court of v. State request his ed for remittitur after final available, majority opinion become and the (1) judgment response because his to the properly ultimately addresses them and summary judgment motion for [State’s] the trial concludes court did not abuse its (2) request made such a at the time refusing discretion in remittitur. judgment was entered he could have nine-month-delay provision relied on the join
For those reasons I
22.16(c)(1)
article
which was declared to be
the Court.
Lyles
unconstitutional at a later date.”
CAMPBELL, Judge, concurring (emphasis
origi
majority’s
ap-
conclusion that the court of
surely wrong, however, when it concluded
erred,
peals
disagree completely
but I
Lyles
was entitled to remittitur even
majority’s
reasoning.
though he filed his motion for remittitur
I first review the relevant facts.
Thom-
the trial court rendered final
after
Marks, charged
as Earl
in Robertson Coun- ment.
ty
misdemeanor,
with a
failed to
provides
part:
Article 22.16
in relevant
trial on December
1989. On that date
(a) After forfeiture of a bond and before
the trial court
rendered
nisi for
the time
set
limits
against
the State and
Marks and
sure-
his
article,
the court
ty,
Lyles,
Vernon
jointly and severally, in
shall,
motion,
on written
remit to the
the amount of Marks’ bond. On December
surety the amount of the bond
if:
...
16, 1989, Marks was
placed
re-arrested and
(1)
is incarcerated in the
in the Robertson County Jail. On Febru-
county in
prosecution
which the
7, 1990,
ary
the trial court rendered final
pending;
judgment against
the bond. On March
1990, Lyles filed a
vacate
the bond under Texas Code of Criminal
motion for remittitur of the full amount of
denied both motions.
Procedure article
the final
motion to
The trial court
and a second
modify
against a bond not earlier than:
feiture
(1) nine months after the date the for-
A final
[*]
judgment may
[*]
entered,
[*]
the offense for
Sfc
be entered
‡
[*]
given
which the bond was
is a misde-
The Tenth Court of
subsequent
meanor; or
reversed,
ly
holding that
the trial court
(2) 18
months
the date the forfei-
“should have vacated or modified its Febru
ture was
if the offense for
7, 1990,
ary
granted
[final]
felony.
which the bond was
22.16(a).”
remittitur in accordance with art.
*9
(Tex.
Lyles
(d)
v.
814 S.W.2d
the time lim-
After
App.
appeals,
(c)
The court of
its set by Subsection
this article
— Waco
citing
Matyastik,
v.
entry
State
(Emphasis
concerning
in Matyastik
We have held that sub
discussion
discre-
(d).
(c)
In-
tionary
section
remittitur under subsection
violative of our state constitu
deed,
(d)
in
subsection was never mentioned
separation
tion’s
and
Third,
(a)’s
opinion.
consti-
is, therefore,
our
subsection
of no effect.
Ma
State v.
infirmity
utilization of subsec-
tutional
102;
tyastik, 811 S.W.2d
Armadillo Bail
—its
equal force to
(c) applies
tion
with at least
(Tex.Cr.
Bonds v.
—
(d). Thus,
(a)
if
falls
subsection
subsection
held,
App.1990).
cryp
We have also
albeit
(c),
of its reference to subsection
because
tically, that
(d)
surely fall as
then
must
well.
subsection
(a) contingent upon
subsection
the time
escaping
There
no
this conclusion.
(c),
limitations established in subsection
view,
referring
my
and
must have been
thus has no effect without
inval
we
Matyastik mandatory
to
remittitur un-
provisions. Recently
id
we stated in [Ex
surviving portions of Article 22.-
(Tex. der the
parte
Jones
]
[803
16(a)
(d).
interpretation
This
of Ma-
and
Cr.App.1991)
part
should
“...
]
only
one that is both coherent
tyastik is
be held invalid ...
the remainder
bill
gives
legislative
some effect to
must
sustained if it is
of the statute
in Article 22.16.
scheme embodied
capable
being
complete in itself and
[legisla
executed in accordance with the
originally
by the
As it was
conceived
wholly independent of that
intent
tive]
Legislature,
a scheme
Article 22.16 created
Because
rejected.”
which has been
sub
had an
in which sureties on bail bonds
have
section
cannot be executed or
lengthy
a
right
absolute
to remittitur for
utilizing
provi
any effect without
if one of
period
forfeiture
after
(c),
hold that the
sions of subsection
we
specified
the conditions
subsection
22.16(a), V.A.C.C.P.,uti
portion Art.
period of
Following that set
was met.
(c)
under
is invalid
lizing
(c)
subsection
time—defined
subsection —discretion-
1 of the Texas Constitution.
possible
still
under sub-
ary remittitur was
§
Thus,
any
be done
request
remittitur now
was made
before
Thus,
Legislature
time between
judgment.1
forfeiture
final
good public
that it was
judgment.
apparently believed
strong
incen-
give
policy to
bailbondsmen
(em-
at 104
Matyastik,
811 S.W.2d
State
custody
principals to
to return their
tive
added;
punctua-
some
phasis
citation and
give
can still
judgment.
We
omitted).
principle
of stare
Given
if we
legislative scheme
some effect to this
decisis,
at bar
disposition of the case
holding Matyastik
our
to refer
construe
part
certainly depend
large
must
mandatory remittitur. Because of
Matyastik.
meant in
what we
so,
respectfully
I
to do
majority’s failure
interpre-
concludes from its
majority
dissent.
(a) is
that subsection
Matyastik
tation of
of its reference
in toto because
void
MALONEY, J., joins.
now
that remittitur is
dissenting.
BAIRD, Judge,
trial court before
discretionary with the
(d).
apt
There
appellant
As
under subsection
dissent.
respectfully
I
statutory
majority’s
problems
states,
with the
cardinal rule of
ly
are several
“[t]he
Ap
First,
save,
destroy.”
de-
not
analysis,
is to
however.
construction
discussion,
brief,
Matyas
ex-
11. In
oblique
pg.
State
spite
pellant’s
its somewhat
(Tex.Cr.App.1991),
Art.
portion
tik,
only
“the
plicitly held
that if one
V.A.C.C.P.,
noted,
settled
utilizing
is well
22.16(a),
“[i]t
unconstitutional,
statute is held
of Article
The balance
is invalid.”
unconstitutional,
continues to
the statute
remainder of
and is
remains valid
Indeed,
statuto
principle of
valid.”
any theory yet advanced be
not under
at least
Tex.
codified at
has been
construction
Second,
ry
there was
majority.
approximately thir-
majority
and for
by the
in the result reached
1. I concur
ty days
Lyles
motion to vacate
filed his
because
*10
holding by cre-
justifies its
311.032(c)
majority
The
pro
Ann.
which
Gov’t Code
§
(a) and
subsections
ating a conflict between
vides:
(a)
(d).
majority states
subsection
The
“[i]f
does not contain
In a statute that
time
reference to the
is to
read without
severability or nonsevera-
provision for
(c), the trial court
limitations of subsection
or
bility,
any provision
if
of the statute
the discretion found
longer
no
have”
would
any person or circum-
application
its
to
(d).
majority
the
fails
What
subsection
invalid,
invalidity
the
does
stance is
(d)
re-
recognize
also
to
is that subsection
provisions
applica-
or
not affect other
by
limits set
subsection
upon
lies
the time
of the statute that can be
tions
(a)
un-
(c).2
Consequently,
subsection
provision or
effect without the invalid
constitutional,
is also uncon-
provisions
and to this end the
application,
stitutional.
of the statute are severable.
that,
ignores the fact
majority
The
art. 22.16 to
Legislature
amended
correctly applied
In
Matyastik,
form, providing for
manda-
its current
both
311.032(c)
portion of Art.
and held “the
§
discretionary
tory and
remittitur. Obvious-
V.A.C.C.P.,
(c)
22.16(a),
utilizing subsection
perceive
did
a con-
ly
Legislature
invalid_”
Matyastik,
[was]
(d).
(a)
In-
flict between subsections
concluded, that mandato-
at 104. We then
conflict;
deed,
pro-
there
no such
one
ry
“anytime
could made
be-
remittitur
mandatory remittitur while the
vides for
entry
tween
forfeiture
the discre-
provides for remittitur at
other
judgment.’’1 Id.
words, if
judge.
trial
In other
tion of the
Today,
majority, purporting
rely
to
is forfeited for a reason other
the bond
(a),
Matyastik,
provided by
concludes that without
than one
discretion,
may, at his
neverthe-
judge
time limits in subsection
“remittitur of a
part
of the amount of
less remit all
mandatory
any
forfeited
would be
bond
(d).
under subsection
because there
after
forfeiture
(a). Consequent-
judgment provision
mandatory
Legislature provided for
The
(a)
ly, subsection
cannot be executed or
encourage
making of
remittitur
any
provi-
awaiting
have
effect without the invalid
incarcerated while
bonds for those
Appeals recognized:
As the Court of
trial.
sions. Subsection
is thus void. We
mandatory
ov-
legislature
therefore hold that
has considered the
jails and the
condition of most
provisions
longer
ercrowded
are no
valid.
it to
penitentiary, and determined
state
Remittitur
instead be done at the trial
policy of allow a remittitur
public
be the
any
court’s discretion at
time before
princi-
appearance
of an
bond when
of a final
[Footnote omitted]”
custody
pal is returned to
pursuant
art.
to Tex.Code Crim.Proc.Ann.
determination,
making its
22.16(d).
Lyles v.
made for more serious offend- available
ers. State, (Tex. v. 411, 412
Lyles
App. - Waco
I treatment believe the Court was, respects, this in all correct.3 case CHAPPELL, Wesley Appellant, William Keeping mind the rule of “cardinal save, statutory not construction” can believe, destroy I art. 22.16. consistent Texas, Appellee. The STATE of Bail Armadillo holdings our 71025. No. (Tex.Cr.
Bonds App.1990) art. 22.16 should and Texas, Criminal read as follows: En Banc. Anytime and en- between forfeiture 3, 1993. Feb. judgment, try of a After forfeiture April 7, Rehearing Denied 1993. of a bond and before Subsection limits set article; motion, shall on written court
remit the amount of the
bond....
(b) change. No
(c) A entered judgment-may
against a not than: bond earlier
(1) nine the-for- months after-the date entered,-if-the
feiture-was offense was-given is-a-misde-
which the bond
meanor; or
(2) forfei- after the date the -18-months
ture was if—the offense felony-
whichr-the is a Anytime Mr forfeiture and between limits-set the-expiration of the time
ter this- and-be- article of a final
lere —the
against the bond....
(e)
change.
No
Accordingly,
judgment was
appeals
1990.
Judge Campbell
March
believes the court
(e)
however,
(d),
surely wrong,
329b
it concluded
"was
when
final under Tex.R.Civ.Proc.Ann.
though
329b(5) (Judg-
Lyles
(f).
also,
to remittitur even
that
he filed his motion for remittitur
court rendered final
was entitled
Rule
See
trial
expiration of
after
shall
ments
be come
judgment.” Lyles v.
judg-
(30) days
thirty
date of rendition
J., Concurring
(Campbell,