*1 Regardless of the other benefits Carbide, NATIONAL signifi there SAFETY CASUALTY
claimed Union Leyva CORP., Agent cant benefit from mandamus relief re Manuel d/b/A gard random-assignment-of-cases Bonds, Appellant, Rocky Bail question. assignment Random of cases is v. designed prevent forum-shopping. assignment
Practices that random subvert of Texas. STATE procedures “disrespect breed for and integrity judicial sys of our No. PD-0413-07. [threaten] Bennett, 35, tem.” See In re 960 S.W.2d Appeals of Texas. Court of Criminal (Tex.1997). We need not consider intended to whether intervention was May 2008. County’s circumvent Galveston local rule requiring assignment random of cases be Rehearing Aug. Denied intent, regardless cause of the Halls’
intervention and the trial court’s abuse of failing
discretion in to rule on grant
the motion to strike resulted in circumven assignment
tion of the random rule.
regard parties, detriment to the
Halls’ claims been have now filed as a that is
separate pending lawsuit Galves County.
ton There be insignificant will party
detriment to either or the judicial
system if mandamus granted. relief is On
balance, mandamus review is warranted establishing
because the benefits of
priority give that trial courts must to rul
ing motions to strike interventions
re-emphasizing the importance ap of both
pearance practice maintaining in
tegrity of assignment random rules out
weigh any detriment to mandamus review Thus,
in this instance. Union Carbide adequate remedy by
does not have an
appeal. hearing argument, oral con-
Without we
ditionally grant the writ mandamus and
direct the trial court to vacate its sever-
ance and enter an order granting order motion to strike. See
Union Carbide’s
Tex.R.App. P. issue writ will 52.8(c).
only if the trial court not do so. does *2 Good, TX, Tyler, for Appellants.
Ken W. County Attor- Schonberger, Arne Asst. Paso, Horn, Jeffrey El L. State’s ney, Van Austin, for Atty., State.
OPINION MEYERS, J., opinion delivered KELLER, P.J., Court, in which JOHNSON, PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and JJ., COCHRAN, joined. National, sought exon-
Appellant, Safety
eration from the forfeiture
bond due
of the defendant. See
incarceration
of the Texas Code
en-
Procedure.1 The trial court
Criminal
for
tered a
in favor of the State
original
one half the amount
findings
concluding
of fact
and entered
22.13(a)(5) unconstitutionally
that Article
discretion
interferes
the trial court’s
with
finality
judgments.2 Ap-
and with
appeals
and the court of
pellant appealed,
the trial court.
affirmed the
State,
FACTS $10,000 be- bond on Appellant posted Guerrero, charged half Willie who misdemeanor, (A) at the specified, in the case of a all future refer- 1. Unless otherwise day refer to the Texas Code of 180th ences to Articles time of or not later than the Criminal Procedure. principal's failure to after the date of the court; appear in 2. The relevant of Article 22.13 states: (B) felony, at the time in the case of a other, causes, (a) following no will day or not later than the 270th sureties, if exonerate the defendant and his appear in principal's failure to date of the any, liability upon the forfeiture taken: from court. principal 5. The incarceration of jurisdiction in the United States: felony controlling judg- theft and was due to the time of trials and hearing on March multiple post- When ments because “to avoid Safety actions, National employee tying up learned that further its docket, Guerrero failed to at hearing, have to 9 months to wait him she located and informed the court judgment” places enter a final and it vir- *3 appear coordinator that Guerrero would tual time and amount limits out of the Instead, court; V, that afternoon. the coordinator of the Article Sec- discretion told Appellant bring Guerrero to court tions 1 and of the Texas Constitution3 following the Guerrero in the morning. ap- power vest over bond forfeitures 22.13(a)(5) peared following the morning gave judicial and branch and Article in- judge trial several reasons for his failure power; pur- terferes with that the stated time, at his including pose scheduled of an orderly a bond is to have dock- weather, trouble, car by and that he had et defendants on time forgotten. judge The trial was offended and for sureties to assist that-to al- with by and, result, Guerrero’s attitude as a low a defendant to interfere entered a nisi forfeiting the bond by showing up court’s docket for trial placed and in custody. Guerrero He any portion was “without forfeiture of later released on a bond. At future, new the final bond would cause similar behavior hearing nisi, on Appellant by the in by defendants this case and argued that it was entitled to exoneration and, other Sureties and persons”; accused under Code of Criminal Procedure Article taking away “discretion to order payment 22.13(a)(5)because Guerrero was incarcer- of all or pur- bond vitiates the ated the day after his appear. pose failure to of a bond and create havoc The court entered a judgment calendar, for the allowing with the Court’s defen- $5,000 State for plus court costs and en- dants to in wonder at a time and [sic] tered findings of fact and choosing.” conclusions of date of their own 22.13(a)(5) stating law that Article is un- Appellant appealed, arguing that the tri- constitutional. al court’s failure to exonerate error was The trial court following included the in legal and that regarding conclusions findings its of fact and conclusions of law: Article were erroneous. The Article affects the timing and court of appeals argu- overruled these finality judgments and interferes ments and considered Appellant’s ar- with the core powers of the gument court and the that it mandatory was entitled to 22.16(a) administration justice; the statute remittitur under Article because hampers the discretion of the court in Guerrero released in on new bond V, ("The sive, judicial § 3. See Article power appellate, original jurisdiction 1 all actions, remedies, Supreme proceedings, this State shall be vested in except one in Court, exclusive, Appeals, appellate, original one Court of Criminal cases where Courts, Appeals, jurisdiction may Courts of in District Coun- be conferred this Consti- Courts, Courts, ty court, in Commissioners in Courts tution or other law on some other Peace, tribunal, of Justices of the and in body. such other or administrative District may provided by Legis- judges courts as be law. The Court have the shall to issue may lature necessary jurisdiction. establish such other courts as it writs to enforce their may necessary prescribe deem juris- appellate juris- The District Court shall have thereof, organization diction and general supervisory diction and control over Court, jurisdiction conform the County of the district and Commissioners with such thereto."); V, § other inferior courts exceptions regulations may Article and under such ("District jurisdiction law.”). Court prescribed by consists of exclu- legislature See amend- appeals case. The held that Article 22.17. 22.16(a) 2003, removing the limi- Chapter current version of Article vio- ed II, section the Texas ability lates trial to enter a tations on the provides for man- Constitution4 because setting out the situa- datory anytime remittitur at to final tions in a bondsman is entitled principal if is re- the defendant if the made request full remittitur while in the case or the case leased new bail jurisdiction the court has over case. given is dismissed. which bond is 22.13(a)(5) apply time limits Article so, the has doing removed They surety, not to the trial court. to remit trial court’s discretion the bond surety’s are an date on the abili- expiration new or the criminal the event bail ty principal use the defense that National, *4 Safety case dismissed. incarcerated, telling a the not mandate S.W.3d 691-92. thus, enter a the judgment; state to when prevent for trial Appellant petition periods filed a discretion- time do not the any ary asking entering review us to determine whether a final at from appeals properly court of found that place the not time. Article 22.16 also does 22.16(a) article of the Texas Code of Crimi- time or on a trial court’s limits restrictions on nal Procedure is unconstitutional based pro- final It ability judgment. to enter a pro- of separation-of-powers a the violation to mandatory prior for remittitur the vides in the addi- Texas Constitution. We vision in final the of the tionally granted on our motion review own being re- of the principal limited situation article of to determine whether if bail in case or the case leased on new the Texas Procedure is the Code Criminal dismissed, discretionary remitti- and for on a violation of the unconstitutional based good tur for cause shown. in Tex-
separation-of-powers provision
the
simply
time limits
the statutes
as Constitution.
file
on
to
a
place the burden
bondsmen
court still
remittitur while the
OF THE PARTIES
motion for
ARGUMENTS
jurisdiction
case and do not
has
over the
Appellant argues that articles 22.13 and
ability
place
to
restrictions
the
not
a trial court to alter a
22.16 do
order
therefore, the statutes do
judgment,
enter
not tell the trial
final
and do
doc-
separation-of-powers
not
the
violate
final judgment.
it can enter a
court when
Finally,
trine of the Texas Constitution.
Rather,
provides
22.13
affirmative
Appellant argues
that the
has
for
Article 22.16
surety,
the
and
defenses
to
an intent
bondsmen
indicated
reward
the
the
sets out
limited situations wherein
to custo-
returning
the state
who assist
remittitur
the bond
seek
fail to
because
dy principals
appear,
who
Even
judgment.
to
pres-
the
the
of bail is to secure
special
purpose
pro-
a
judgment, Chapter
allows
accused,
a revenue
ence of the
not to be
surety may
under
the
seek
cedure
which
punitive
or to be
or to substitute
of the
amount.
device
portion
the return
another;
II,
and
which are Judicial to
and
§
the Division of
those
4. Article
discusses
states,
being
powers
Gov-
person,
persons,
Powers and
"The
of the
collection
no
divided
ernment of the State of Texas shall be
departments,
exercise
one of
shall
these
which
departments,
three distinct
each of
into
the
power properly attached
either of
oth-
to
magis-
separate body
be confided to a
shall
ers,
expressly
except
the instances herein
Legislative to
tracy, to wit:
which are
Those
permitted.”
another,
one;
Executive
those which are
to
bondsmen,
a fíne.
the court dock-
of the forfeiture
mean
Without
remission
would
worse,
really
that the
bound to
ets would
even
and
state
defendant is
appear
either
to hire more officers to
can create continuances at will.
have
the discretion to set
seek out defendants who are on bond and Because the court has
bail,
appear
jails
purpose
fail to
or build more
to hold the amount of the
those
are not released on bond.
the fulfillment of an
who
bond is
assure
pay
obligation
court and
that,
argues
through
The State
Articles
fulfilled,
penalty
obligation
if that
is not
Legislature
“the
told
sepa
that it
State asserts
violates
Court what
must enter
ration-of-powers
Legisla
doctrine for the
doing
improperly
so
has
exercised
ture to make the bond unenforceable
judicial
reserved
branch of
through
exoneration and for the
forced
government to hear
ap
controversies and
surety to have the same risk whether
ply discretion to
determine
amount of
such,
high
court sets a
or low bond. As
judgment”
“by requiring
a zero
Legislature
has made failure to
cases,
judgment in all
no matter
what
penalty,
an
inter
offense without
(i.e.
circumstances,
of the
amount
orderly processes
feres with the
bond,
missing
the reason for
court and the
that,
points
Lyles
courts. The State
out
caused),
delay
Legislature
improper
*5
(Tex.Crim.
State,
v.
850 S.W.2d
501
ly usurping
judicial
function.” This re
that
App.1993), this Court said
the old
power
moves
court’s
to consider facts
requiring mandatory
statute
remittitur at
related to the reason for the failure to
judgment
time
to final
removed
judgment
and to enter a
based on
a trial court’s discretion. Under the same
those facts. Courts are also prevented
reasoning, forcing
enter a
a court to
zero
Article
entering
judg
from
judgment against
sep
a bond also violates
ment for nine months because there is no
of powers.
aration
guidance for
concerning
the court
situa
tions
judgment
wherein a final
CASE LAW
prior to nine months and the defendant is
The former
of Article 22.16 en-
version
judgment
returned after the
but before the
compassed
princi-
both the issues of the
nine
expired.
months have
This interferes
pal’s
principal’s
incarceration and the
re-
ability
with the court’s
to control its docket
lease on new bail. The
because the
would
amended Article
in
22.16
2003
moved
actually
days
passed
be
until 270
had
principal’s
the section that addressed the
since,
entered,
if final
even
were
incarceration to Article 22.13. In Arma-
would
nullified or would
to be
have
dillo Bail Bonds v. State
on the court’s
when
Armadillo, eliminating the
holding in
separation-of-
our
a case violated
decide
22.16(c)
time restrictions
in
of the Texas Constitu
powers provision
remittitur
occur
stated,
repeated
determining
held
that
“We have
tion. We
entry
provision
anytime
forfeiture and
separation
powers
between
ly that
judgment. Matyastik,
ways.
of a final
in either of two
may be violated
this issue
one branch of
at 104. We considered
First,
it is violated when
S.W.2d
Lyles
v. State and held
assumes,
delegated,
again
or is
government
of Article
degree,
mandatory
provisions
more
remittitur
whatever
power
22.16(d)
void,
branch.
22.16 are
but because Article
attached’
to another
‘properly
all or
one
the trial court to remit
also
when
allows
provision
violated
prior to
unduly interferes with
another
the bond at the court’s discretion
branch
that subsec
judgment,
other branch cannot
of a final
so that
branch
separation-of-pow
constitutionally as
tion does not violate the
effectively exercise
its
Armadillo, at
branch has the 22.13 and to Articles 2003 amendments fact, questions decide decide issues that, “the Legislature stated on the facts law, enter a the de state is more interested law, judg execute the final and the receiving forfeited appear than fendant sentence, Legislature has and the ment time limits on when administration, money. Setting authority judicial over result bonds be forfeited would upon the sub infringe it does not long as Id. ultimately appearing judicial branch. more defendants *6 stantive principal has been by ty the is or whether or not expiration the time limits set Subsection shall, article, (c)of jurisdiction and the incarcerated in another on written this the court motion, surety date of the incarceration. the amount of the remit to the court, (c) against a judgment may entered deducting A final the costs of bond after county for the return bond not earlier than: reasonable costs to the (1) forfeiture date the principal, the interest accrued on nine after the of the months entered, the by for provided Subsection was if the offense the bond amount as misdemeanor; (e) given or a bond was is of this article if: (2) (1) date the forfeiture in the months after the incarcerated principal the entered, which the offense for pending; was if the county prosecution is in which the felony. given (2) bond was is a in another principal is incarcerated the (d) of the time limits set expiration After the is verified jurisdiction and the incarceration article; (c) (b) the by article and before Subsection of this by of this provided Subsection as bond, judgment against the (3) entry a principal is released on new bail surety case; may remit to the in its discretion court deceased; of the bond (4) all of the amount or principal is court, any reasonable deducting (5) given the costs of was case for which bond prin- of the county for the return costs to the dismissed. (a)(2) on the bond (b) cipal, accrued and the interest purposes of Subsection For the (e) by of this article, provided Subsection surety may request confirmation amount a this by article. principal written the incarceration of his article, (e) interest purposes this agency For request the law enforcement to from the date of the bond amount pending. A law accrues on county prosecution is where and at the same manner forfeiture in the agency in this state that receives enforcement pre- accrual of provided for the notify same rate as the court request a for verification shall judgment in civil cases. interest pending and the sure- prosecution is in which fact, court says nothing because bondsmen a fi- tered. Article 22.13 would have nancial produce principal incentive to judgment-it about the of a final sim- many originally after he or weeks she ply a defense if provides failed to ... [and] would the defendant is incarcerated within nine give bondsmen consistency principals If appear. months after he fails incarcerated, allowing who were a while term the court a final ends before enters judge adjust the time period as needed judgment bond, on the under Article in a particular case.” Senate Comm, the court must remit the amount of the CRIMINAL JURISPRUDENCE, BlLL ANALYSIS, bond. (2003). Tex. S.B. Leg., 78th R.S. The State also that Article implies Sellers, As we stated in State v. by triggered the defendant’s 321 (Tex.Crim.App.1990), S.W.2d incarceration, whether or not he is re- judgment a nisi alone does not authorize turned, he and that will be exonerated recovery of a bond by amount the State. court, appearing stating without ever
A judgment provisional nisi is a 22.13(a)(5) requires that “Article a zero absolute, that is not final or but be regardless of the crime for come final. See Article 33.14. Nisi means which the defendant is arrested and with- “unless,” a judgment so nisi is valid unless out the actual return Defendant- party why shows cause it should be County Principal prosecu- of his us, withdrawn. In the case Appel before (Emphasis Respondent’s tion.” Brief on argues lant that there are two reasons Merits). simply This is incorrect. As First, should be withdrawn. 22.13(b), specifically stated Article day defendant was incarcerated the (a)(5) surety exonerated subsection under after his initial appear, which, failure to obligated pay remains incurred costs 22.13(a)(5), under Article triggers exonera county princi- to secure the return of the tion from the forfeiture of the bond. Sec pal. Similarly, the court must remit the ond, the defendant was released on new amount of the bond under Article 22.16 if the same case after he arrest the defendant has been new bond in ed on the resulting warrant judg from the nisi, ment same case or the case has been dis- which is a reason for remittitur under missed. It makes sense that when a new *7 22.16(a). case, bond is issued in a the old bond remitted; should be this not mean does The State reads Article to that a defendant can be on bond some- mean that the court cannot enter a final where else for some other case and be judgment for nine months because then entitled to full remittitur. Both Articles “multiple would have post-judgment ac- require 22.13 22.16 remittitur tions” if the defendant after final returned specific, limited situations —situations judgment but within nine months after his the return of the defendant is cer- which However, appear. failure to Article 22.13 (because tain the defendant is incarcerated say does not that the trial court must wait elsewhere), (a)(5) the return is secured anoth- by until lapses the time in subsection to case, er enter a final bond the same or the return is judgment. The statute does (because not prohibit entry unnecessary or the case has been dismissed).6 dictate the judgment must be en- when
6. We note that there are other situations in has limited the circumstances un- may provide requested the Code of Criminal Procedure in which the der a which courts alties, and additional that, contempt such as if point The of Article pursued to charges, that can be or criminal is incarcerated when the defendant appear, to or securing a for failure shortly appear, punish he failed to defendant after cash-only easy does a appear quite require court can return to his 23.05(a). surety See Article require the of a bondsman. lieu of a bond. assistance punitive cost to or county incur the not intended to be And bail is Because juris- bonding another is a defendant from Bail transfer the to be a revenue device. 22.13(b) diction, surety therefore, makes the business; pay court county costs incurred during liable for the time costs and interest of the defendant. But the return to secure is incen- a defendant fails which a court to require statute does not wait at- to secure the for the bondsman tive entering judg- a final nine months before at his scheduled of the defendant tendance thus, a ment, does not interfere with does not have hearing. finality judgments. timing high a bail the court sets same risk when case, day returned the Guerrero was one, this court sets a low it has when in court his failure to was after higher interest high bond has because a He to the forfeiture of bond. prior surety to return time it takes the for the same time the custody at the placed the defendant. forfeiting nisi court entered the Appellant requested remit- the bond. And CONCLUSION under Article 22.13
titur 22.16 do not interfere Articles 22.13 and Therefore, the State’s judgment. of final ability to enter the trial court’s with Article 22.13 forc- regarding hypothetical the time they nor do dictate judgment, nine months the trial court to wait ing may enter a trial court frame which within apply does not entering judgment before do not The statutes judgment. a final this situation. doctrine separation-of-powers violate argument disagree with State’s We are not unconstitutional. and thus guidance no for the there is reversed, appeals is of the court of decision judg- a final concerning situations wherein to the trial the cause is remanded prior to nine months and ment is court. after the
defendant is returned expired. have before the nine months but COCHRAN, J., concurring filed a spe- for a specifically allows Article 22.17 opinion. up years cial bill of review two J., COCHRAN, concurring. entered, has been rea- valid several The State discusses that all or request include 22.13, dealing why Article returned. The State sons forfeited bond be bond, may be a coun- exoneration of bail complete remission also incorrect *8 that ties the hands statute terproductive the defen- mean that
the forfeiture would purpose judges and can thwarts really is not bound to dant Nonetheless, I place. that in the first at will and create continuances these deficits majority agree an has made failure Legislature unconstitu- of an not rise to the level pen- There are do penalty. offense without 07, writ of habeas cor- subsequent application for § 4 remedy. example, in Articles 11. For 5, § tells us under pus. may we consider what limited conditions separation-of-powers tional violation
doctrine. These are matters that are best Legislature
left to the Safety and to Na- Casualty Corp.
tional Concurring Opinion
Page governments local in-
crease their upon non-profit reliance Pre-
trial programs. majority Services notes,
aptly bonding “Bail is a busi- Indeed is. To the extent that
ness[.]”1
the interests of the bail bond business and justice system needs the criminal track,
are not on the same local and state
governments are free appropriate to make
adjustments. Courts do not decide the laws, they
wisdom of such decide
their constitutionality.
I join therefore the majority opinion. OTTO, Appellant,
Adriane Elaine
v.
The STATE of Texas.
No. PD-1311-06.
Court of Appeals Criminal of Texas.
Feb. 2008.
Rehearing April Denied *9 Majority Op. at 164.