Tom Benson v. State

Case Information

FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/29/2015 3:22:17 PM JEFFREY D. KYLE Clerk

ACCEPTED 03-15-00121-CR ^[5475449] THIRD COURT OF APPEALS AUSTIN, TEXAS 5/29/2015 3:22:17 PM JEFFREY D. KYLE CLERK NO. 03-15-00121-CR IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS ________________________________________________ TOM BENSON, Appellant v. THE STATE OF TEXAS, Appellee ________________________________________________ Appealed from the County Court at Law No. 7, Travis County, Texas, Cause No. C-1-CV-14-002294 ________________________________________________ APPELLEE’S BRIEF ________________________________________________ Tim Labadie Assistant Travis County Attorney State Bar No. 11784853 P.O. Box 1748 Austin, Texas 78767 (512) 854-5864 (512) 854-9316 (fax) tim.labadie@traviscountytx.gov Attorney for the State of Texas, Appellee

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

TABLE OF CONTENTS ..........................................................................................i INDEX OF AUTHORITIES ................................................................................... ii

I.

STATEMENT REGARDING ORAL ARGUMENT ................................. 1

II.

STATEMENT OF FACTS ............................................................................. 2 III. SUMMARY OF THE ARGUMENT ........................................................... 4 IV. ARGUMENT ................................................................................................. 5

A. Standard of Review and the Applicable Law ..................................... 5 B. Tom Benson did not present any evidence that Brian

Whipple returned to Travis County after his failure to appear ....... 6 IV. PRAYER ....................................................................................................... 14 CERTIFICATE OF SERVICE ............................................................................... 15

i

INDEX OF AUTHORITIES

Page

CASES

Armadillo Bail Bonds. v State,

802 S.W.2d 237 (Tex. Crim. App. 1990 ....................................................... 8 Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993) ................................................. 5, 6 Ex parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) ................................................. 9 Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................................... 9 Gramercy Insurance Co. v State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) ................... 10, 13 Grimes County Bail Board v. Ellen, 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) . 10 KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) ........................................................................... 6 Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d) ............ 5 Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) ..................................................... 8 McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008) ................................................... 13 ii Mendez v. State, No. 03-12-00200-CV, 2013 Tex. App. LEXIS 13278, 2013 WL 5914142, (Tex. App. –Austin Oct. 25, 2013, no pet.)(mem.op) ............................... 5

Nixon v. Mr. Property Management, Co., 690 S.W.2d 546 (Tex. 1985) ........................................................................... 5 Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) ............................................. 7, 8, 9 State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991) ..................................................... 8

STATUTES, RULES AND OTHER

T EX . C ODE C RIM . P ROC . art. 17.01 ........................................................................... 9 T EX . C ODE C RIM . P ROC . art. 17.02 ........................................................................... 9 T EX . C ODE C RIM . P ROC . art. 17.08 ........................................................................... 9 T EX . C ODE C RIM . P ROC . art. 22.10 ........................................................................... 5 T EX . C ODE C RIM . P ROC . art. 22.13 ..................................................................... 8, 11 T EX . C ODE C RIM . P ROC . art. 22.13(a)(1) ................................................................ 11 T EX . C ODE C RIM . P ROC . art. 22.13(a)(2) ................................................................ 11 T EX . C ODE C RIM . P ROC . art. 22.13(a)(3) ................................................................ 11 T EX . C ODE C RIM . P ROC . art. 22.13(a)(4) ................................................................ 11 T EX . C ODE C RIM . P ROC . art. 22.13(a)(5) .................................................. 8, 9, 10, 13 T EX . C ODE C RIM . P ROC . art. 22.13(a)(5)(A) ................................................ 3, 4, 6, 7

iii T EX . C ODE C RIM . P ROC . art. 22.13(b) .................................................. 4, 7, 9, 10, 11 T EX . C ODE C RIM . P ROC . art. 22.16 ..................................................................... 8, 12 T EX . C ODE C RIM . P ROC . art. 22.16(a) .................................................................... 11 T EX . C ODE C RIM . P ROC . art. 22.16(b) .................................................................... 12 T EX . C ODE C RIM . P ROC . art. 22.17 ................................................................... 12, 13 T EX . C ODE C RIM . P ROC . art. 22.17(a) .................................................................... 12 T EX . C ODE C RIM . P ROC . art. 44.42 ........................................................................... 5 T EX . C ODE C RIM . P ROC . art. 44.44 ........................................................................... 5 T EX . R. C IV . P. 166a(c) .............................................................................................. 5 S ENATE C OMM . O N C RIMINAL J URISPRUDENCE , B ILL A NALYSIS , Tex. S.B. 1336, 78th Leg., R.S. (2003) ..................................................................... 9

iv NO. 03-15-00121-CR IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS ________________________________________________ TOM BENSON, Appellant v. THE STATE OF TEXAS, Appellee ________________________________________________ Appealed from the County Court at Law No. 7, Travis County, Texas, Cause No. C-1-CV-14-002294 ________________________________________________

APPELLEE’S BRIEF

________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

The State of Texas, Appellee, files this brief in support of the trial court’s judgment and would respectfully show the Court the following.

I.

STATEMENT REGARDING ORAL ARGUMENT

The State of Texas requests oral argument because the issue presented by this case (i.e., what are the elements of a surety’s defense -1- based on the incarceration of the principal) is extremely important to bond forfeiture jurisprudence in Texas and has yet to be directly considered by any Texas court. The courts are not frequently called upon to address issues considering bond forfeitures because the State does not have the right to appeal adverse judgments in bond forfeiture suits. At oral argument, the Court would be able to draw upon the experience and knowledge of both the State’s attorney and the bondsman in order to better understand the inner workings of bail bonds, the law applicable to bail bonds, and the impact the Court’s decision will have on this integral part of our criminal justice system.

II. STATEMENT OF FACTS

On August 29, 2013, Brian Whipple, as Principal, and Tom Benson, as Surety, executed an appearance bond payable to the State of Texas in the amount of $5,000.00. ^[1] This bond was conditioned on Mr. Whipple’s personal appearance on a misdemeanor charge pending in Travis County. ^[2] On February 14, 2014, Brian Whipple failed to appear when this case was called for trial. ^[3] Thereafter, Mr. Whipple’s name was called distinctly at the door of the courthouse and he was given a reasonable time after which to appear. ^[4] Brian Whipple, however, failed to appear and the bail bond was forfeited. ^[5]

In answering the bond forfeiture suit, Tom Benson did not deny the making and the forfeiture of the bond. Instead, he asserted that Mr. Whipple was incarcerated in Las Vegas, Nevada within 180 days of his failure to appear in Travis County, claiming that this provided him a defense to liability under article 22.13(a)(5)(A) of the Texas Code of Criminal Procedure. ^[6] Mr. Benson did not allege that Mr. Whipple was ever returned to Travis County.

On December 4, 2014, Plaintiff’s Motion for Summary Judgment was filed and set for hearing on January 21, 2015. ^[7] In response, Mr. Benson asked the court to deny the motion, claiming he had raised a fact issue on each element of his defense based on article 22.13(a)(5)(A) of the Texas Code of Criminal Procedure. Mr. Benson asserted that these elements are incarceration of the principal within any jurisdiction in the United States within 180 days from the failure to appear on a misdemeanor charge. ^[8]

The trial court granted the State’s motion and rendered judgment against Brian Whipple and Tom Benson for the full amount of the bond ($5,000.00) plus court costs. ^[9]

III. SUMMARY OF THE ARGUMENT

The elements of the exoneration defense under article 22.13(a)(5)(A) are not, as Tom Benson asserts, simply that a person charged with a misdemeanor is incarcerated in any jurisdiction in the United States within 180 days after the principal’s failure to appear. Another element, found in article 22.13(b), is that the principal must return to the county in which the misdemeanor case is pending. Since Mr. Benson did not provide the trial court with any evidence that Mr. Whipple returned to Travis County after his failure to appear, the trial court was right to grant summary judgment for the State.

IV. ARGUMENT

A. Standard of Review and the Applicable Law Bond forfeiture suits, while criminal in nature, are subject to the rules

of civil procedure and the rules of civil appellate procedure. Tex. Code Crim. Proc. articles 22.10, 44.42 and 44.44. Kubosh v. State , 177 S.W.3d 156, 160 (Tex. App. − Houston [1st Dist.] 2005, pet. ref’d); Mendez v. State, No. 03- 12-00200-CV, 2013 Tex. App. LEXIS 13278, *3, 2013 WL 5914142, *2 (Tex. App. − Austin Oct. 25, 2013, no pet.) (mem. op.). The standard for reviewing a traditional summary judgment, which is what the State obtained in this case, is whether the movant carried its burden of showing there is no genuine issue of material fact and judgment should be granted as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

In order to be entitled to a forfeiture of a bail bond, the State has the burden to show that (1) a valid bond was executed by the principal and surety; (2) the principal’s name was distinctly called at the courthouse door; and (3) the principal failed to appear within a reasonable time of that call. Burns v. State , 861 S.W.2d 878, 888 (Tex. Crim. App. 1993). The bond establishes the first element of the State’s bond forfeiture suit and the

-5- Judgment Nisi is prima facie proof of the second and third elements. Burns v. State , 861 S.W.2d at 887. Attached to the State’s motion were certified copies of the bond and the Judgment Nisi. Thus, the State established as a matter of law that there are no genuine issues of material fact as to any of the elements of the State’s cause of action, as Mr. Benson admits. ^[10]

Thus, to avoid a summary judgment, Mr. Benson was required to present summary judgment evidence sufficient to raise an issue of fact on each element of his defense. KPMG Peat Marwick v. Harrison County Housing Fin. Corp ., 988 S.W.2d 746, 750 (Tex. 1999).

B. Tom Benson did not present any evidence that Brian Whipple returned to Travis County after his failure to appear To determine whether Tom Benson met his burden to defeat the State’s summary judgment, the Court must first determine what are the elements of his defense. Tom Benson pleaded a defense based on article 22.13(a)(5)(A) of the Texas Code of Criminal Procedure, which provides:

(a) The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:

. . . 5. The incarceration of the principal in any jurisdiction in the United States: (A) in the case of a misdemeanor, at the time of or not

later than the 180th day after the date of the principal's failure to appear in court[.]

Tex. Code Crim. Proc. article 22.13(a)(5)(A). Mr. Benson argues that the elements of this defense are that Mr. Whipple was charged with a misdemeanor and that he was incarcerated in any jurisdiction in the United States within 180 days from his failure to appear in court. However, there is another element to this defense: the principal must be returned to the county of prosecution. This element is found not in article 22.13(a)(5)(A), but in article 22.13(b), which provides:

(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs of court, any reasonable and necessary costs incurred by a county to secure the return of the principal , and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal's incarceration.

Tex. Code Crim. Proc. article 22.13(b) (emphasis added). When read together, these provisions limit a surety’s liability if the principle, who is charged with a misdemeanor, is incarcerated within 180 days of his failure to appear and is returned to the county of prosecution.

While no court has directly delineated the elements of this defense, the Texas Court of Criminal Appeals has provided guidance on this issue in Safety National Casualty Corp. v. State , 273 S.W.3d 157 (Tex. Crim. App.

-7- 2008). The main issue in Safety National was whether article 22.13(a)(5) violates the separation of powers provision in the Texas Constitution. ^[11] However, in its attempt to convince the Court that article 22.13(a)(5) can work an unjust result, the State intimated “that Article 22.13(a)(5) is triggered by the defendant’s incarceration, whether or not he is returned, and the he will be exonerated without ever appearing in court[.]” Safety National Casualty Corp. v. State , 273 S.W.3d at 163. The Court found this reading of article 22.13(a)(5) “simply incorrect,” because article 22.13(a)(5) is limited to those situations where the principal’s return to the county of prosecution is certain. Id.

Also instructive to the determination of the elements of this defense are the Legislature’s reasons for adding subsections (a)(5) and (b) to article 22.13 in 2003:

. . . the state is more interested in having the defendant appear than in receiving forfeited bond money. Setting time limits on when bonds would be forfeited would result in more defendants ultimately appearing in court because bondsmen would have a financial incentive to produce the principal many weeks after he or she originally failed to appear in court . . . [and] would give bondsmen consistency for principals who were incarcerated, while allowing a judge to adjust the time period as needed in a particular case. SENATE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS, Tex. S.B. 1336, 78th Leg., R.S. (2003).

Quoted in Safety National Casualty Corp. v. State , 273 S.W.3d at 162-63 (emphasis added).

In these few words, the Legislature encapsulates the role of article 22.13(a)(5) in fulfilling the primary purpose of a bail bond, which is to ensure that the principal will appear and answer the charges brought against him or her. ^[12] This purpose is not abrogated by the principal’s failure to appear; the State would still rather have the principal appear than collect on a forfeited bond, as the Legislature noted above. ^[13] Indeed, the presence of a bail bond encourages the surety’s participation in the return of the principal. Grimes County Bail Bond Board v. Ellen , 267 S.W.3d 310, 317 (Tex. App. − Houston [14th Dist.] 2008, pet. denied).

The principal’s return is, of course, important to the State so that the criminal case against the principal can be resolved. To help fulfill this purpose, the Legislature, in articles 22.13(a)(5) and (b), has given the surety financial incentive to bring the principal back to court after the principal’s failure to appear – and the quicker the better for the surety. To reward the surety with very limited liability when the principal is incarcerated but not returned to the prosecuting county does not fulfill the primary purpose of a bail bond.

The incarceration exoneration under article 22.13(a)(5) is but one of several mechanisms available to the surety to minimize its bond forfeiture liability. Like article 22.13(a)(5), most of these contemplate the return of the promise by the principal and surety promise that the principal will appear before the proper court to answer the accusation against him). See also , Gramercy Insurance Co. v. State, 834 S.W.2d 379, 381-82 (Tex. App. − San ^[13] Antonio 1992, no pet.) (a bail bond is not intended to function as a revenue device for the government).

-10- principal to the county of prosecution. ^[14] For example, a surety is completely exonerated from liability if the principal was prevented from appearing because he was sick or because of an uncontrollable circumstance, provided that the principal had no fault in causing the situation that prevented his appearance. Tex. Code Crim. Proc. art. 22.13(a)(3). However, before the surety can take advantage of this exoneration, the principal must “appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appearing.” Tex. Code Crim. Proc. art. 22.13(a)(3).

Additionally, if, before a final judgment is rendered in the bond forfeiture suit, the principal is arrested and released on a new bond or the criminal case in which the forfeited bond was made is dismissed, the surety’s liability is reduced to court costs, interest on the bond akin to prejudgment interest, and, just like article 22.13( b), “any reasonable and necessary costs to the county for the return of the principal.” Tex. Code Crim. Proc. art. 22.16(a). This same reduction of liability can also be given to the surety by the court “for other good cause shown.” Tex. Code Crim. Proc. art. 22.16(b). ^[15] By retaining the surety’s liability for return costs, both provisions contemplate the return of the principal.

A surety has been given another avenue for reducing its liability if the principal is returned to the county of prosecution. However, unlike the ones discussed above, this one can be utilized any time within two years after a final judgment is rendered. This mechanism is known as the special bill of review and is governed by article 22.17 of the Code of Criminal Procedure.

A surety can file a special bill of review to request, “on equitable grounds, that the final judgment be reformed and that all or part of the bond amount be remitted to the surety, after deducting the costs of court, any reasonable costs to the county for the return of the principal , and the interest accrued on the bond amount form the date of forfeiture.” Tex. Code Crim. Proc. art. 22.17(a) (emphasis added). Because this statute does not specify the equitable grounds that would justify a reformation of the judgment, the courts have fashioned several factors for trial courts to consider. One of these factors is whether the surety participated in the re- arrest of the principal. Another factor is the cost and inconvenience to the State in regaining custody of the principal. McKenna v. State , 247 S.W.3d 716, 719 (Tex. Crim. App. 2008); Gramercy Insurance Co. v. State , 834 S.W.2d 379, 382 (Tex. App. − San Antonio 1992, no pet.)

Thus, the question under article 22.17 is not if the principal returned to the county of prosecution, but whether the surety helped get the principal arrested and how much did it cost the State to return the principal to the county of prosecution. Since the surety remains liable for return costs under both article 22.17 and article 22.13(a)(5), the principal’s return to the county of prosecution is an element of the incarceration exoneration just as it is an element of an equitable special bill of review.

Thus, in order to avoid summary judgment, Mr. Benson was required to raise a fact issue on Mr. Whipple’s incarceration within 180 days of his failure to appear and Mr. Whipple’s return to Travis County. He failed to meet this burden because he did not present any evidence that Mr. Whipple was ever returned to Travis County. Thus, summary judgment was proper.

-13-

IV. PRAYER

The State established as a matter of law that Brian Whipple and Tom Benson made a $5,000.00 appearance bond, which forfeited after Mr. Whipple failed to appear in the court in which his misdemeanor case is pending. Tom Benson does not dispute these facts. Instead, he tried to defeat summary judgment by providing evidence that Brian Whipple was arrested in Nevada within 180 days of his failure to appear in the Travis County misdemeanor case. However, this defense is limited to those situations where the principal is returned to the county of prosecution. Since Tom Benson did not provide the trial court any evidence that Mr. Whipple ever returned to Travis County after the bond forfeited, the trial court correctly rendered summary judgment in favor of the State.

Accordingly, the State of Texas respectfully requests that this Court affirm the judgment of the trial court. Respectfully submitted, DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY By: /s/ Tim Labadie

Tim Labadie Assistant Travis County Attorney State Bar No. 11784853

-14- P.O. Box 1748 Austin, Texas 78767 (512) 854-5864 (512) 854-9316 (fax) tim.labadie@traviscountytx.gov

Attorneys for the State of Texas, Appellee

CERTIFICATE OF COMPLIANCE

By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby certify that the foregoing Appellee’s Brief contains 3,163 words and is compliant as to form pursuant to Tex. R. App. P. 9.4.

/s/ Tim Labadie

CERTIFICATE OF SERVICE

I hereby certify that on May 29, 2015, and in accordance with Texas Rule of Appellate Procedure 9.5, a true and correct copy of the foregoing was emailed to Mr. Tom Benson at tomrbenson@gmail.com.

/s/ Tim Labadie -15- APPENDIX Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990) ARMADILLO BAIL BONDS, Appellant v. THE STATE

OF TEXAS, Appellee No. 1049-89

COURT OF CRIMINAL APPEALS OF TEXAS

802 S.W.2d 237 ; 1990 Tex. Crim. App. LEXIS 198

December 5, 1990, Delivered PRIOR HISTORY: [**1] Petition In this criminal bail bond forfeiture for Discretionary Review from the Fifth case, we granted Armadillo Bail Bonds' Court of Appeals; Dallas County. petition for discretionary review, pursuant to Texas Rule of Appellate

COUNSEL: Attorneys for appellant: G. Procedure 200(c)(4), in order to P. (Pat) Monks, Houston, Texas, Randy determine whether Article 22.16(c)(2) of Adler, Dallas, Texas. the Texas Code of Criminal Procedure violates the separation of powers

Attorneys for State: John Vance, D. A. provision of the Texas Constitution. See & Alec B. Stevenson, III & Michael J. Tex. Const. art. 2, § 1 . Having found the Watts, Asst. D. A's., Dallas, Texas, statute unconstitutional, we will affirm Robert Huttash, State's Attorney, Austin, the judgment of the court of appeals. Texas. Alejandro de Jesus Carreon, charged in Dallas County with a felony, failed to JUDGES: En Banc. Campbell, Judge. appear for trial on November 19, 1987. Judges Teague & Miller dissent without On that date the trial court rendered opinion. Sturns, Judge not participating. judgment nisi for the State [**2] and against de Jesus Carreon and his surety,

OPINION BY:

CAMPBELL Armadillo Bail Bonds, jointly and severally, in the amount of de Jesus

OPINION

Carreon's bond. Nine months later, on [*238] OPINION ON August 15, 1988, at a hearing before the

APPELLANT'S

PETITION FOR trial court, Armadillo was given an

DISCRETIONARY REVIEW

opportunity to show good cause for de Jesus Carreon's failure to appear for

Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990) trial. No such cause was shown, and the A proper understanding of the issue judgment of forfeiture was made final presented requires an examination of the the next day. Armadillo then moved for complete text of Article 22.16(a) and a new trial on the basis of Tex. Code (c): Crim. Pro. art. 22.16(c)(2) , which

(a) After forfeiture of a bond and provides that "[a] final judgment may be before the expiration of the time limits entered against a bond not earlier than . . set by Subsection (c) of this article the . 18 months after the date the forfeiture court shall, on written motion, remit to was entered, if the offense for which the the surety the amount of the bond after bond was given is a felony." Armadillo's deducting the costs of court, any motion for new trial was denied, and the reasonable costs to the county for the Fifth Court of Appeals affirmed on the return of the principal, and the interest ground that Article 22.16(c)(2) is invalid accrued on the bond amount . . . if: under the Texas Constitution's (1) the principal is incarcerated in the separation of powers provision. county in which the prosecution is Armadillo Bail Bonds v. State, 772 pending; S.W.2d 193 (Tex.App. -- Dallas 1989) . (2) the principal is incarcerated in In its petition for discretionary another jurisdiction and [**4] the review, Armadillo contends that Article incarceration is verified . . .; 22.16(c)(2) "is a valid enactment of law to regulate the trial court's . . . power to

(3) the principal is released on new grant [a] certain type of relief, a final bail in the case; judgment." Appellant's [**3] Brief at (4) the principal is deceased; or 18. Armadillo argues further that the (5) the case for which bond was statute is constitutional because it "does given is dismissed. not prevent the courts from managing their affairs . . .; it only controls the type

* * * of relief a court can grant at certain (c) A final judgment may be entered times." Appellant's Brief at 12. The State against a bond not earlier than: responds that "by ordering trial courts [*239] (1) nine months after the not to enter bond forfeiture judgments date the forfeiture was entered, if the until the expiration of . . . eighteen months in a felony case, . . ., the offense for which the bond was given is legislature is usurping a judicial a misdemeanor; or function. This is certainly violative of

(2) 18 months after the date the [the separation of powers provision] of forfeiture was entered, if the offense for the Texas Constitution." State's Brief at which the bond was given is a felony. 7. (Emphasis added.) Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990) It seems probable that Article others, except in the instances herein 22.16(c), enacted in 1987, resulted from expressly permitted. our decision in Williams v. State, 707

This separation of powers provision S.W.2d 40 (Tex.Cr.App. 1986) . ^[1] In reflects a belief on the part of those who Williams we held unconstitutional a drafted and adopted our state statute that entitled the surety to an constitution that one of the greatest automatic ninety-five percent remittitur threats to liberty is the accumulation of if the defendant appeared within two excessive power in a single branch of years after a final judgment and the government. The provision also has the surety claimed responsibility for the [**6] incidental effect of promoting return. We concluded that the automatic effective government by assigning remittitur provision impermissibly functions to the branches that are best interfered with judicial power by suited to discharge them. See H. Bruff, requiring the modification of a final Separation of Powers Under the Texas judgment. It appears the Legislature has Constitution, 68 Texas L. Rev. 1337, tried to circumvent the Williams holding 1341 (1990) . by denying the courts the authority to We have held repeatedly that the [**5] render a final judgment for a set separation of powers provision may be period of time. violated in either of two ways. First, it is violated when one branch of government

1 See Senate Comm. on Crim. assumes, or is delegated, to whatever Juris., Bill Analysis, Tex. S.B. 185, degree, a power that is more "properly 70th Leg., R.S. (1987) (discussing attached" to another branch. Ex parte Williams v. State, 707 S.W.2d 40 Giles, 502 S.W.2d 774, 780 (Tex.Cr.App. (Tex.Cr.App. 1986)) . 1973) . The provision is also violated Article 2, § 1 of the Texas when one branch unduly interferes with Constitution provides: another branch so that the other branch The powers of the Government of the cannot effectively exercise its constitutionally assigned powers. Rose State of Texas shall be divided into three distinct departments, each of which shall v. State, 752 S.W.2d 529, 535 be confided to a separate body of (Tex.Cr.App. 1987) ; Meshell v. State, magistracy, to wit: Those which are 739 S.W.2d 246, 252 (Tex.Cr.App. Legislative to one, those which are 1987) ; see 16 C.J.S. Constitutional Law Executive to another, and those which § 112 (1984). The undue interference are Judicial to another; and no person, or test collection of persons, being of one of

takes the middle ground between these departments, shall exercise any those who would seek rigid power properly attached to either of the compartmentalization and those who Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990) would find no separation of powers explicitly grants the Legislature ultimate violation until one branch completely authority over judicial "administration," disrupted another branch's ability to Tex. Const. art. 5, § 31 ; Meshell v. State, function. The rigid 739 S.W.2d at 255 , although this compartmentalization [**7] theory authority does not permit the Legislature undermines the efficiency of "to infringe upon the substantive power government and undervalues the of the Judicial department under the guise of establishing 'rules of court,' thus availability of checks and balances. The other extreme looks only for the rendering the separation of powers completed coup and underestimates the doctrine meaningless." Meshell v. State, incremental effect of interbranch 739 S.W.2d at 255 . Given these intrusions. constitutional provisions, it is no simple

task to determine whether any given N. McCabe, Four Faces of State legislative action that affects the Constitutional Separation of Powers: exercise of judicial power is a violation Challenges to Speedy Trial and of the separation of powers provision. Speedy Disposition Provisions, 62 Helpful to our inquiry in this case, we Temple L. Rev. 177, 218 (1989). believe, is the Montana Supreme Court's The State argues, and the court of decision in Coate v. Omholt, 203 Mont. appeals held in effect, that Article 488, 662 P.2d 591 (Mont. 1983) . There, 22.16(c)(2) unduly interferes with the the court held unconstitutional, as courts' exercise of the "judicial" power. violations of the separation of powers Our inquiry must begin, then, with the principle, two Montana statutes that nature of this power and the extent to placed time limits on district and which the Legislature may inject itself supreme court cases and imposed into this arena. financial sanctions on judges for failure to comply. Although the facts of Omholt

The Texas Constitution explicitly are different from those in the case vests the judicial power of the state in before us today, we believe the the courts. Tex. Const. art. 5, § 1 . The reasoning of the decision is instructive core of this judicial power embraces the and sound: power (1) to hear evidence; (2) to decide the issues [*240] of fact raised by the

. . . We [**9] conclude that, based pleadings; (3) to decide the relevant on the separation of powers clause of questions of law; (4) to enter a final our state constitution, the question of judgment on the facts and the law; and when cases shall be decided and the (5) to execute the final judgment or manner in which they shall be decided, sentence. Kelley v. State, 676 S.W.2d is a matter solely for the judicial branch 104, 107 (Tex.Cr.App. 1984) . On the of government. other hand, the constitution [**8] Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990) * * * realm of judicial affairs as to dictate to a judge how he shall judge or how he shall By [the separation of powers] comport himself in judging or which provision, each branch of government is seeks to surround the act of judging with made equal, coordinate, and hampering conditions clearly offends the independent. By this we do not mean constitutional scheme of the separation absolute independence because of powers and will be held invalid." "absolute independence" cannot exist in The courts have recognized, as the our form of government. It does mean, however, ". . . that the powers properly authors state, that certain judicial belonging to one department shall not be functions require that the courts alone exercised by either of the others." With determine how those functions are to be only one exception ( State ex rel. exercised. Even assuming the right Emerald People's Util. v. Joseph (Ore. under many state constitutions, and 1982), 292 Or. 357, 640 P.2d 1011 ), the indeed, the need for the legislature to be supreme courts of those states called on involved in rule-making where the to answer the question have declared courts and the legislature have that the essential nature of a concurrent rule-making power, the authors state: constitutional court encompasses the right to determine when a judicial

"Grant the necessity for concurrent decision will be made. jurisdiction in the field of procedure, These holdings are best summarized immediately another problem presents in a law review article entitled, itself. Should [**11] there not be some Legislative Control Over Judicial Rule- realm of judicial administration entirely Making: A Problem in Constitutional free from legislative supervision? Or Revision (1958), 107 U. Pa. L. Rev. 1, shall the legislature be permitted to 31-32: dictate to the courts every detail of their

internal regimen: command appellate "What the holdings do suggest is that courts to issue written opinions in every there is a third realm of judicial activity, case, declare within what time cases [**10] neither substantive nor adjective shall be heard, [*241] deny to the court law, a realm of 'proceedings which are the power to issue its mandate until a so vital to the efficient functioning of a prescribed period of time after judgment court as to be beyond legislative power. shall have passed? There are spheres of 'This is the area of minimum functional activity so fundamental and so necessary integrity of the courts, 'what is essential to a court so inherent in its very nature to the existence, dignity and functions of as a court, that to divest it of its absolute the court as a constitutional tribunal and command within these spheres is to from the very fact that it is a court.' Any make meaningless the very phrase statute which moves so far into this Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990) judicial power." 107 U. Pa. L. Rev. at separation of powers principle 29-30. necessarily contemplates a zone of

judicial power which must be free of 662 P.2d at 594 (emphasis in legislative interference. ^[2] The question in original; some citations omitted). See each case is whether the legislation in also Sands v. Albert Pike Motor Hotel, issue is grounded on the Legislature's 245 Ark. 755, 434 S.W.2d 288 (Ark. own constitutionally assigned power 1968) ; Holliman v. State, 175 Ga. 232, and, if so, whether the legislation 165 S.E. 11 (Ga. 1932) ; Waite v. nevertheless unduly interferes, or [**13] Burgess, 69 Nev. 230, 245 P.2d 994 threatens to unduly interfere, with the (Nev. 1952) ; Schario v. State, 105 Ohio Judiciary's effective exercise of its St. 535, 138 N.E. 63 (Ohio 1922) ; constitutionally assigned power, and we Complaint Against Grady, 118 Wis. 2d so hold. 762, 348 N.W.2d 559 (Wis. 1984) (all cases holding legislature may not dictate

2 We should not be understood to to judiciary when [**12] or how cases approve the court of appeals' shall be decided). sweeping statement that "a statute Article 22.16(c)(2) requires that the which requires the judicial branch Judiciary refrain from exercising a part to act or refrain from acting within of its core power for a period of a year a specified time is [always] and a half. If this requirement is, as unconstitutional as an unwarranted Armadillo argues, a valid exercise of the encroachment by the legislative Legislature's power over judicial branch upon the prerogatives and administration, then, as the court of functions of the judiciary." 772 appeals noted, "nothing prevents the S.W.2d at 196 . There are many legislature from imposing an instances where the Legislature interminable delay in obtaining final may pass legislation that affects in judgment." 772 S.W.2d at 197 (emphasis some way how or when judicial added). In other words, if Article power may be exercised. 22.16(c)(2) is valid, then the Legislature In our view, Article 22.16(c)(2) has the power to render the Judiciary unduly interferes with the Judiciary's impotent with respect to the entry of effective exercise of its constitutionally final judgments. assigned power. We hold, therefore, that We adhere to our holdings in Meshell the statute is invalid under Article 2, § 1 and Williams that the Legislature may of the Texas Constitution. The judgment not unduly interfere with the judicial of the court of appeals is affirmed. function under the guise of establishing Teague and Miller dissent without an rules of court. We also agree with the opinion. Omholt court's reasoning that the Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) JOHN BURNS, Appellant v. THE STATE OF TEXAS, Appellee No. 1111-91

COURT OF CRIMINAL APPEALS OF TEXAS

861 S.W.2d 878 ; 1993 Tex. Crim. App. LEXIS 129

June 23, 1993, Delivered SUBSEQUENT HISTORY: [**1] 861 S.W.2d 878 at 886 . OPINION BY: MILLER PRIOR HISTORY: Petition for OPINION Discretionary Review from the Fourteenth Court of Appeals. [HARRIS [*886] OPINION ON STATE'S County] MOTION FOR REHEARING

Original Opinion of December 23, This appeal arose from a bond 1992, Reported at: 1992 Tex. Crim. App. forfeiture. The trial judge granted LEXIS 248 . summary judgment in favor of the State,

and the surety, John Burns, appealed. ^[1] In the court of appeals, appellant raised

COUNSEL: For Appellant: Stanley G. nine points of error which the court Schneider, Houston, Tx. W. Troy overruled, and the judgment was McKinney, Houston, Tx. affirmed. Burns v. State, 814 S.W.2d

768 (Tex.App. - Houston [14th Dist.] For Appellee: John B. Holmes, Jr., D. A. 1991). This Court granted appellant's & Kathleen A. B. Braddock & Mark A. petition for discretionary review on the Font, Asst. D. A's., Houston, Tx. Robert two grounds presented therein, to-wit: Huttash, State's Attorney, Austin, Tx. (1) "whether the court of appeals used

the proper standard of review by failing JUDGES: En Banc. Miller, Judge, to review the evidence [**2] in the light McCormick, Presiding Judge & most favorable to appellant[,]" and (2) Overstreet, Judge, concur in the result "whether a bond may be forfeited due to

Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) a principal's failure to appear in court on addresses summary judgment, so we a certain date absent proof of notice to find it useful to consult decisions from the principal that he is to appear in court our sister court on this standard. The on that date when the principal has purpose of the summary judgment rule is previously been ordered to appear at a to provide a method of summarily date after the date on which the terminating a case when it clearly judgment nisi issued." appears that only a question of law is

involved and that no genuine issue of 1 The principal in this cause, fact remains. Gaines v. Hamman, 163 Pedro Alvarez, is not a party to this Tex. 618, 358 S.W.2d 557, 563 (Tex. appeal. 1962) . The issue in a summary judgment

proceeding, therefore, is whether there is On original submission, we found a a genuine issue of fact in the case. Id. at substantial material fact regarding notice 562 . The party moving for summary was presented which defeated summary judgment has the burden of showing that judgment, and we therefore sustained there is no such fact question and that he appellant's second ground for review. is entitled [**4] to judgment as a matter Alvarez & Burns v. State, S.W.2d of law. Nixon v. Mr. Property (Tex.Crim.App. No. 1111-91, delivered Management Company, Inc, 690 S.W.2d December 23, 1992), slip op. at p. 8. ^[2] In 546, 548 (Tex. 1985) . In deciding its motion for rehearing, the State whether there is a disputed material fact presents three reasons why this Court issue precluding summary judgment, the erred in finding a substantial material court takes as true the evidence [*887] fact was presented which favorable to the non-moving party. Id. defeated summary judgment. The State at 548-49 . Every reasonable inference alleges the opinion omits a material fact, from the evidence must be indulged in omits and improperly recites [**3] the favor of the non-movant, and any doubts law applicable to summary judgment resolved in its favor. Id. at 549 . See also cases, and improperly applies the law to Montgomery v. Kennedy, 669 S.W.2d the facts. 309 (Tex. 1984) ; City of Houston v. Clear Creek Basin Authority, 589

2 Finding merit in appellant's S.W.2d 671 (Tex. 1979) . Hence, the second ground for review, we did applicable standard of review is to view not address his first ground for the evidence in the light most favorable review. Id. at p. 9. to the party opposing the summary In order to address the State's judgment motion. Gaines v. Hamman, contentions we must first articulate the 358 S.W.2d at 562 . ^[3] appropriate standard of review in a summary judgment case. Rule 116a of the Texas Rules of Civil Procedure

Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) 3 In his first ground for review in shown why the defendant did his petition, appellant contended not appear. the court of appeals utilized an incorrect standard of review and viewed the evidence in the light It is well-settled that the State's proof in most favorable to the movant, a bond forfeiture proceeding consists of rather than the non-movant. Given the bond and the judicial declaration of our disposition of this motion for the forfeiture of the bond, which is the rehearing, we express no opinion judgment nisi. Tocher v. State, 517 on the merits of this ground for S.W.2d 299, 301 (Tex.Crim.App. 1975) . review, but only note that this is The judgment nisi is prima facie proof the proper standard to apply. that the statutory requirements of Art.

22.02 have been satisfied. Id. The [**6] [**5] We now review the elements burden then shifts to the defendant to of the State's cause of action in a bond affirmatively show otherwise. Id. forfeiture from which this summary Indeed, "the court will presume that the judgment action arose. Bond forfeiture, judgment nisi was taken in accordance although in the nature of a civil with the statutory requirements, unless it proceeding, ^[4] is governed by the Code of affirmatively appear otherwise." Id., Criminal Procedure. Article 22.02 citing Thompson v. State, 31 Tex. 166 directs the manner of taking a forfeiture (1868) . In moving for summary and provides in pertinent part: judgment in an appearance bond forfeiture case, the State must therefore

The name of the defendant establish as a matter of law that there are shall be called distinctly at the no genuine issues of material fact as to courthouse door, and if the any of the elements of the State's cause defendant does not appear of action, which are proved by the bond within a reasonable time after and the judgment nisi. Deckard v. State, such call is made, judgment 615 S.W.2d 717, 718 (Tex.Crim.App. shall be entered that the State 1981) (panel opinion). of Texas recover of the defendant the amount of

4 See Art. 22.10, V.A.C.C.P. money in which he is bound, and of his sureties, if any, the With this review in mind, we now amount of money in which address the merits of the State's motion they are respectively bound, for rehearing which raises an issue which judgment shall state regarding its burden of proof in this that the same will be made case. In its motion, the State argues inter final, unless good cause be alia that in our opinion on original

submission we improperly assigned the Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) burden of proof in a summary judgment forfeiture. Art. 22.02 (emphasis action [*888] on a bond [**7] supplied). Thus, to be entitled to forfeiture. In that opinion we stated: forfeiture of a bond [**8] the State need

only show (1) a valid bond; (2) that the Therefore, the fact issues defendant's name was distinctly called at which must be proven in a the courthouse door; and (3) the motion for summary defendant failed to appear within a judgment on a bond forfeiture reasonable time of that call. At the risk are: (1) a valid bond executed of being redundant, we reiterate that the by the surety (Article burden of proof on the second and third 17.08(5)); (2) failure of a prongs is satisfied by the judgment nisi. defendant bound by bail to

Article 22.02 further provides that appear in a court in which his this judgment will be made final unless case is pending when his "good cause be shown why the personal appearance is defendant did not appear." This proviso required under the Code operates like an affirmative defense in (Article 22.01); (3) the name that the defendant admits he failed to of the defendant shall have appear but asserts he has good cause been called distinctly at the which excuses his failure to do so. This courthouse door (Article burden is appropriately placed on the 22.02); and (4) no valid defendant. reason for the principal not The court of appeals, relying upon appearing (Article 22.13). Lopez v. State, 678 S.W.2d 197 (Tex.App. - San Antonio 1984, no pet.), recognized that there are only four fact

Alvarez & Burns, slip op. at p 3; see also issues in a motion for summary Burns, 814 S.W.2d at 770 . The State judgment on a bond forfeiture. See contends this fourth issue is not a fact Burns, 814 S.W.2d at 770 . Those issues, which it must prove in a bond forfeiture per Art. 22.02, are: whether there is a proceeding. A plain reading of Art. valid bond; whether the principal's name 22.02, along with the Tocher decision, was called at the courthouse door; reveals the State is correct. whether the principal failed to appear; Article 22.02 directs that the and whether the principal had a valid defendant's name be called "distinctly" reason for not appearing. While there are at the courthouse door. The defendant is four [**9] fact issues under Art. 22.02, given a "reasonable time after such call the State bears only the burden of proof is made" in which to appear. Upon his on three of them. As the State points out failure to do so, "judgment shall be in its motion for rehearing, this Court entered" for the State on the bond "inexplicably" stated these issues as the Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) State's burden of proof in our opinion on and his surety from liability upon original submission. See Alvarez & the forfeiture taken. Allegedly Burns, slip op. at p. 4. We therefore germane to this cause is section (3) sustain the State's ground for rehearing which provides: on this burden of proof issue.

The sickness of the In his second ground for review in principal or some his petition, appellant contended the uncontrollable State failed to establish as a matter of circumstance which law that the principal had notice of the prevented his court setting and "that the summary appearance at court, and judgment evidence created a substantial it must, in every such and genuine issue of material fact case, be shown that his concerning notice to the principal, thus failure to appear arose precluding summary judgment." On from no fault on his part. original submission we agreed with The causes mentioned in appellant and concluded "the amended this subdivision shall not affidavits of the principal's attorney and be deemed sufficient to the affidavit of the surety which present exonerate the principal evidence that the principal did not and his sureties, is any, receive notice of the setting raises (sic) unless such principal material facts reflecting the appear before final contradiction and inconsistency of the judgment on the bond to principal's lack of notice to defeat answer the accusation summary judgment." Id., slip op. at p. 8. against him, or show In its motion for rehearing, the State sufficient cause for not argues that we misapplied the law to the so appearing. facts. [**10] The State asserts that the dispositive issue before this Court is whether the appellant, as non-movant,

Pursuant to the express terms of presented summary judgment evidence Art. 22.13, to controvert the State's on every element of his defense, viz: his prima facie proof, appellant must failure to appear was due to an show (1) that some uncontrollable uncontrollable circumstance pursuant to circumstance prevented the Art. 22.13, V.A.C.C.P. ^[5] We disagree principal's appearance at court, (2) with the State's argument. that the principal's failure to appear arose from no fault on his part, and

5 Article 22.13, V.A.C.C.P. , (3) that the principal appeared provides an exclusive list of causes before final judgment on the bond which will exonerate the principal Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) to answer the accusation against summary judgment boils down to the him (or had sufficient cause for not allegation . . . that it is entitled to so appearing). summary judgment 'as matter (sic) of

law by virtue of the fact that no good In the motion for rehearing, the cause exists for the Defendant- State asserts pursuant to Art. 22.13 Principal's failure to appear.'" Appellant that we omitted the fact that the then asserts in his response that there are record is wholly void of any genuine issues of material fact which evidence that, after forfeiture, the preclude the State's entitlement to principal appeared prior to summary judgment, including lack of judgment in the forfeiture case. notice to appear. Nowhere in his Hence the State argues that even response (as opposed to his answer) though there may have been a lack does appellant assert he is entitled to of notice to appear, appellant has exoneration of [**12] liability on the failed to meet his burden of proof bond forfeiture via Art. 22.13. on this affirmative defense by not presenting any evidence that, in the

6 See Burns, 814 S.W.2d at 770 . 23 months between forfeiture and 7 See Alvarez & Burns, slip op. at judgment, he had been returned to p. 5. custody in Harris County. See 8 Specifically, appellant filed an Fernandez v. State, 516 S.W.2d 677 original answer and two amended (Tex.Crim.App. 1974) . answers. [**11] [*889] In spite of In his brief in the court of appeals statements in the court of appeals' appellant contended, inter alia, that the opinion ^[6] and this Court's opinion on trial court erred in granting summary original submission, ^[7] appellant has not judgment because a fact issue existed raised or argued an "uncontrollable concerning notice to the principal to circumstance" affirmative defense under appear. Again, appellant did not argue Art. 22.13. The record reveals that he was entitled to exoneration pursuant citation issued on April 15, 1988, on the to Art. 22.13. ^[9] In his petition for bond forfeiture. See Art. 22.10. discretionary review before this Court, Appellant filed an answer ^[8] generally appellant contended lack of notice was a denying the allegations and providing a fact issue in this case but not under Art. laundry list of defenses, including 22.13. Thus, the affirmative defense of "[appellant] is entitled to be exonerated an uncontrollable circumstance was not under the provisions of Article 22.13 an issue before either the court of T.C.C.P." The State then filed its motion appeals or this Court, and any statements for summary judgment. Appellant filed addressing that issue are dicta. his reply in response to this motion asserting "the State's entire motion for

Burns v. State , 861 S.W.2d 878 (Tex. Crim. App. 1993) 9 Appellant's only argument summary judgment. The State presented mentioning Art. 22.13 is in a the bond and the judgment nisi to the constitutional challenge. trial court, thus making a prima facie Appellant's point of error states: case for the bond forfeiture. Appellant

presented evidence concerning a lack of The trial court erred in notice to appear and providing good granting summary cause for his failure to appear. See Art. 22.02. On original submission we held judgment because if no actual notice is required, the evidence raised a material fact issue TEX. CODE CRIM. and the trial judge erred in granting PROC. ANN. art. 17.09 summary judgment. In reviewing that (Vernon 1977), TEX. holding on this motion for rehearing, we CODE CRIM. PROC. conclude our decision was correct. ANN. art 22.13 (Vernon

The State's motion for rehearing is 1989), and the bond are granted only to the extent that we void as unconstitutional corrected our statement of the State's under the Fourteenth burden of proof in a [*890] bond Amendment of the forfeiture case. See pp. 4-5, supra. The United States other grounds are denied. Constitution and Art. I, Miller, J. sec's. (sic) 13 and 19 of the Texas Constitution.

Delivered: June 23, 1993 En Banc McCormick, PJ., and Overstreet, J.,

[**13] The issue presented here is concur in result. whether there is a material fact issue regarding notice which would preclude

Ex Parte Reis , 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) Ex Parte Thomas Reis Alias Tommy Reis. No. 14091

COURT OF CRIMINAL APPEALS OF TEXAS

117 Tex. Crim. 123 ; 33 S.W.2d 435 ; 1930 Tex. Crim. App.

LEXIS 948

December 17, 1930, Delivered SUBSEQUENT HISTORY: [***1] felony, bail was granted as in case of Reported in 33 S.W.2d 435 . ordinary offense, the court was

authorized at the same term of court PRIOR HISTORY: Appeal from the during which the order granting bail was District Court of Galveston County. entered to set aside the order and relator Tried below before the Hon. J. C. Canty, was properly remanded to the custody of Judge. the sheriff.

Habeas corpus proceeding on the Habeas Corpus. relation of Thomas Reis, alias Tommy The court had the inherent power to Reis, who, after a hearing, was deal with the person of relator in the remanded to the custody of the sheriff. manner manifested by the record, since Affirmed. the purpose of a bail bond is not only to effectuate the release from custody of a DISPOSITION: Affirmed. person accused of crime, but "to secure his presence in order that he may be HEADNOTES tried upon the charge against him." Habeas Corpus -- Bail. Habeas Corpus. The court should not be deprived of Where indictment against relator,

charging a capital offense, was handed its authority to correct a mistake of the to the judge with numerous other character of the one here presented indictments charging ordinary felonies, during the term at which the improper and without hearing the evidence, under order was entered under a the mistaken belief that the offense misapprehension of the true facts and charged against relator was an ordinary conditions.

Ex Parte Reis , 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) was returned, the sheriff released relator COUNSEL: Marsene Johnson, Jr., of on a bond in the sum of five hundred Galveston, for appellant. dollars. The matter having been brought

to the attention of the trial judge, the Lloyd W. Davidson, State's Attorney, of order fixing bond was vacated and an Austin, for the State. alias capias issued upon which relator

was arrested and incarcerated in jail. The vacating order was entered at the same JUDGES: Christian, Judge. term of court at which the indictment OPINION BY: CHRISTIAN had been returned, and during that term relator sought to be released, upon a OPINION hearing on a writ of habeas corpus, under the bond he had theretofore

[*123] [**436] CHRISTIAN,

executed in the sum of five hundred Judge. -- Upon a hearing on a writ of dollars. The testimony adduced upon the habeas corpus before the district court of hearing was uncontroverted to the effect Galveston County, relator was remanded that relator entered the home of Mrs. to the custody of the sheriff. Hence this Carrie Moeller, exhibited a pistol, bound appeal. [*124] Relator is under and gagged her, struck her on the head indictment charging him with robbery with the pistol and robbed her of two with firearms, a capital offense. The thousand dollars. indictment against him was returned into court with numerous other indictments It is relator's contention that the trial charging ordinary felonies against court was without authority to vacate the various persons. As the indictments were order granting bail, notwithstanding the handed to the judge of the district court fact that [***3] he acted upon a mistake he was advised by the county attorney, of fact at the time bail was granted. He upon having made inquiry of him, that relies upon the holding in the cases of all of the indictments charged ordinary Jenkins v. State, 45 Tex. Crim. 253, 76 S.W. 464, 77 S.W. 224 , and the felonies. It being the custom of the judge to set the bond in cases of ordinary announcement in Augustine v. State, 33 felony at five hundred dollars, he Tex. Crim. 1, 23 S.W. 689 . In the latter indorsed [***2] on each of the case the accused was indicted for murder indictments such sum as the amount to on the 21st of December, 1876. On the be required as bail. Among the 29th of the same month the case was indictments upon which this transferred to Bexar County. In indorsement appeared was that charging December, 1882, the accused was relator with the offense of robbery with admitted to bail in the sum of ten firearms. Thereafter, during the same thousand dollars on account of sickness rendering it dangerous to longer confine term of court at which the indictment

Ex Parte Reis , 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) him. A month thereafter the prosecution order granting bail. Contending that was dismissed. In December, 1891, the when the district court granted him bail accused was re-indicted for the same and the order thereof was spread of murder and the venue changed to record, such order was final and Gonzales County, the facts supporting conclusive and became res adjudicata in the charge being identical with those all subsequent proceedings in the case, upon which the first indictment had been and that the district judge was without power or authority to vacate or withdraw returned. After the second indictment, bail was refused. In reversing the such order, Starritt filed an original judgment and granting bail, the court, [***5] action in the Supreme Court speaking through Judge Davidson, held praying for a writ of mandamus. It that "when bail is once granted after appears that the order granting bail was indictment found, it is beyond the power vacated at the same term of the court at of the state to re-arrest for that offense, which it was made. It was the State's the right to bail being res adjudicata." contention that the district judge had Subsequently, in the case of Jenkins v. jurisdiction to vacate, withdraw, or set State, 45 [***4] Tex. Crim. 253, 76 aside the order, even upon his own motion and without notice, at the same S.W. 464 , Augustine's Case was cited in support of the rule in holding that when term of the court at which the order was bail is granted after indictment it is made. In holding that the order granting beyond the [*125] power of the trial bail was res adjudicata and final as to the judge to increase the amount thereof. State, and that the district judge had no Again, in Jenkins v. State, 77 S.W. 224 , authority to vacate it, it was said that the the rule laid down in Augustine's Case authorities supporting the right of the was approved. court to vacate or modify its own

judgments or orders were not applicable, Looking to other jurisdictions, it is in that in such cases the court had under observed that the Supreme Court of consideration property interests of the Oklahoma, in the case of State ex rel. parties rather than the liberties of the Starritt v. Newman, 114 Okla. 228, 245 citizens. P. 999 , cited with approval the holding in the cases above discussed. Starritt was It is unquestionably the rule in civil incarcerated on a charge of murder. cases that it is "within the power of the Upon a proper application, he was court at the same term, to revise or granted bond in the sum of twenty-five vacate any of its judgments, decrees, or thousand dollars. Thereafter he orders." Gulf C. and S. F. Ry. Co. v. presented a bond in said sum in due Muse, District Judge, 109 Tex. 352, 207 form to the district judge, who declined S.W. 897 . [**437] Touching the power to approve the bond, and entered an of the court in such matters in criminal cases, we quote from Bishop's New order setting aside and withdrawing the

Ex Parte Reis , 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) Criminal Procedure2d Ed., vol. 2, sec. granting bail in a capital case during the 1298, as follows: [***6] "The power of term of court at which the order was the court to alter its docket entries and entered, but concerned the power to records during the term wherein they are increase bail or deny bail after a proper made, includes the right within such order had been duly and legally entered time to revise, correct and change its fixing the amount of bond, or granting sentences, however formally bail. pronounced, if nothing has been done

Without approving the doctrine under them. But steps taken under a announced by the Supreme Court of sentence, -- for example, a substantial Missouri, in the case of The State v. part execution thereof, -- will cut off the Eyermann, 172 Mo. 294, 72 S.W. 539 , it right to alter it even during the term." is observed that it was held that the court It is obvious that the power of the had the power at any time during the court in the respect mentioned in term at which the accused was let to criminal cases is not as broad as in civil bail, to alter, amend, cancel, or set aside cases. However, it is unnecessary at this any order made with respect thereto, time to discuss the limitations upon such notwithstanding the accused may have complied with its order fixing his bond. power.

The cases relied upon by relator are Under our Constitution, bail is a distinguishable upon the facts from the matter of right, except in capital offenses case at bar. As reflected by the record in when the proof is evident. Section 11 of such cases, no mistake [*126] entered Art. 1, Constitution of Texas. In into the order granting bail. It was determining whether a capital offense is granted upon a proper and legal order bailable, the practice ordinarily pursued duly entered after legal investigation and in this state is to hear the evidence upon proper exercise of discretion upon the a writ of habeas [***8] corpus. Upon a part of the judge. In the present case, hearing the burden is upon the State to being misinformed by the prosecuting show that the accused is not entitled to bail. Otherwise he is entitled to bail as a attorney as to the nature of the offense, the court granted bail in a capital case, in matter of right. Ex parte Powell, 107 the absence of an agreement on the part Tex. Crim. 648, 298 S.W. 575 . Unless of the State that the case was bailable, the evidence heard by the court is clear and without an examination upon [***7] and strong, leading a well-guarded and a writ of habeas corpus, or otherwise. In dispassionate judgment to the conclusion short, the record shows that there was no that an offense has been committed, that exercise of judicial discretion. The the accused is the guilty agent, and that question decided in the cases relied upon he would probably be punished capitally by relator was not related to the power if the law is administered, bail is a matter of right. Ex parte Alford, 97 Tex. of the court to correct a mistake in

Ex Parte Reis , 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) Crim. 410, 261 S.W. 1041 . If the learned contrary, the statute might be susceptible trial judge had heard the evidence now of the construction that it is only in cases reflected by the record before he had where bond has been granted after granted bail in the sum of five hundred investigation on habeas corpus that the dollars he would have been fully accused is exempt from being again warranted in reaching the conclusion placed in custody for the same offense. that the case was not bailable. If relator's

We quote from Corpus Juris, vol. 6, contention be sustained, he is entitled to page 952, as follows: "Upon admission be enlarged on a bond in an amount to bail the accused [***10] is regarded generally required in cases of ordinary as in the custody of his bail from the felony, notwithstanding a mistake of fact moment a bond or recognizance is as to the character of the offense executed until he is discharged or prevented the exercise of proper recommitted; but he is also in the discretion on the part of the court. custody of the law, and it does not In prohibiting the re-arrest of one deprive the court of its inherent power to granted bail after indictment, the statute deal with the person of the prisoner." provides that in "cases where, [***9]

The purpose of a bail bond is not after indictment is found the cause of the only to effectuate the release from defendant has been investigated on custody of a person accused of crime, habeas corpus, and an order made, either but "to secure his presence in order that remanding him to custody, or admitting he may be tried upon the charge against him to bail, he [*127] shall neither be him." Tex. Jur., vol. 5, page 802. We subject to be again placed in custody, think the court had the inherent power to unless when surrendered by his bail, nor deal with the person of relator in shall he be again entitled to the writ of [**438] the manner manifested by the habeas corpus, except in the special record. In Ex parte Calloway, 98 Tex. cases mentioned in this chapter." Article Crim. 347, 265 S.W. 699 , this court 169, C. C. P. We mention this for the sustained the action of the trial court in purpose of showing that it is the policy raising the amount of bail theretofore of the law that bail be not granted in required after indictment in a felony less capital cases until the facts have been than capital on the ground that the properly investigated. Intention to hold accused had made threats that he would that a proper agreement approved by the not be tried and had failed to appear on judge authorized to grant bail is invalid several occasions, with the result that is disclaimed. Nothing in the statute several bonds had been forfeited. We referred to can properly be construed to think the principle upon which the prevent the re-arrest of one indicted for a decision rested relates to the inherent capital offense under the facts power to deal with the person of the manifested by this record. On the Ex Parte Reis , 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) accused in order to secure his presence We have decided this case on its at the trial. merits without reference to the statute

(article 260, C. C. P.) under which the To deprive the court of the [***11] cases relied upon by appellant seem to authority to correct a mistake of the have been decided. The soundness of nature in question during the term at such decisions is seriously questioned. which it was made would render it powerless to perform its constitutional The judgment is affirmed. and statutory functions. An inherent

Affirmed . power would be destroyed. The [*128] The foregoing opinion of the administration of justice would be Commission of Appeals has been hampered, if not entirely defeated. We examined by the Judges of the Court of are constrained to hold that the action of Criminal Appeals and approved by the the trial court should be sustained. Court. Ex Parte Vasquez , 558 S.W.2d 477 (Tex. Crim. App. 1977) Ex Parte Gilbert Vasquez No. 56,242 The Texas Court of Criminal Appeals 558 S.W.2d 477 ; 1977 Tex. Crim. App. LEXIS 1290 Nov. 30, 1977 PRIOR HISTORY: [**1] Habeas attempting to commit robbery. Bail was Corpus Application from Bexar County set at $100,000.

On August 9, 1977 appellant filed his COUNSEL: For Appellant: Thomas petition for writ of habeas corpus Rocha, Jr. - San Antonio, TX seeking reduction of bail. A hearing on said petition was held on August 16,

For Appellee: Bill White, D.A. - San 1977, following which the court refused Antonio, TX to reduce bail. The twenty year old petitioner

OPINION BY:

ONION testified that he was in jail, that he was unable to make the amount of bond set,

OPINION

that he did not own any real estate, no [*478] Onion, Presiding Judge stocks or bonds, had no money in the This appeal is taken from an order bank and no cash anyplace. He related entered in a habeas corpus proceeding in he had a ten year old automobile, but he the 227th District Court of Bexar County gave it to "another lawyer" and that refusing to reduce bail. [**2] it did not belong to him anymore.

He testified he had made a $10,000 bond The record reflects that on August 3, in an aggravated robbery case, ^[1] / and 1977 the appellant was indicted for could possibly make a $10,000 bond in capital murder. The said indictment [*479] the instant case. ^[2] / He told the charged that appellant intentionally and court he was paying his lawyer $35 ^[3] / a knowingly caused the death of Maria week on his fee, and if released could Guajardo by shooting her with a gun find a job with an uncle at $80 or $85 a while in the course of committing and week. Ex Parte Vasquez , 558 S.W.2d 477 (Tex. Crim. App. 1977) Rodriquez, who had been running, the 1 The aggravated robbery court sustained the objection to further apparently grew out of the same interrogation by the State. transaction as the instant case.

The State offered no evidence ^[4] / and 2 The record is somewhat at the conclusion of the hearing the court confusing on this fact. When asked refused to reduce bail. In its findings the what kind of bond he, his family or hearing the court refused to reduce bail. friends could make, petitioner In its findings the court found, among answered: other things, that the petitioner had "A. I think that the same failed to show he is financially unable to amount I had at first. make bond in the amount of $100,000. On the same date as the hearing the "Q. Do you mean another petitioner filed a pauper's oath for the $10,000 or the same -- the original purposes of obtaining a record on appeal $10,000 bond? of the habeas corpus proceedings. The "A. The original $10,000." court on the same date ordered the transcription furnished without cost,

The witness was then passed. finding petitioner [**4] was a pauper. 3 The source of the $35 weekly payments was not revealed.

4 The State has not filed a brief in Petitioner testified he did not have a this cause. pistol inside the grocery store and did Article 17.15, Vernon's Ann.C.C.P. , not shoot the deceased as alleged. On provides: cross-examination he acknowledged that he drove co-defendant Magdalino

"The amount of bail to be required in Rodriquez [**3] to the grocery store, any case is to be regulated by the court, but stated he did not know Rodriquez judge, magistrate or officer taking the was going to shoot anyone, that he did bail; they are to be governed in the not give Rodriquez a gun, and that he exercise of this discretion by the did not wait for Rodriquez. He admitted Constitution and by the following rules: he later saw Rodriquez running several "1. The bail shall be sufficiently high blocks away from the store and inquired to give reasonable assurance that the as to his running, but Rodriquez "didn't undertaking will be complied with. say nothing. He was afraid." Petitioner related that Rodriquez had no gun in his "2. The power to require bail is not hand and no bag with money in it. He to be so used as to make it an instrument denied splitting the money with of oppression. Rodriquez. When asked where he and Rodriquez went after he picked up

Ex Parte Vasquez , 558 S.W.2d 477 (Tex. Crim. App. 1977) "3. The nature of the offense and the The nature of the offense was shown circumstances under which it was to be capital murder (V.T.C.A., Penal committed are to be considered. [*480] Code, § 19.03 ), which carries a

penalty of life imprisonment or death "4. The ability to make bail is to be (V.T.C.A., Penal Code, § 12.31 ). And regarded, and proof may be taken upon when considering the nature of the this point." offense in setting bail, the punishment The burden of proof is on petitioner permitted by law may be considered. for reduction in bail to show that bail set [**6] Ex parte Clark, supra ; Ex parte is excessive. Ex parte August, 552 Bufkin, 553 S.W.2d 116 (Tex.Cr.App. S.W.2d 169 (Tex.Cr.App. 1977) ; Ex 1977) . As to the circumstances under parte Clark, 537 S.W.2d 40 (Tex.Cr.App. which the offense was committed, there 1976) ; Holliman v. State, 485 S.W.2d was also little evidence offered. While 912 (Tex.Cr.App. 1972) . the return of an indictment establishes probable cause as a matter of law, Ex The primary [**5] object or purpose parte Branch, 553 S.W.2d 380 of an appearance bond is to secure the (Tex.Cr.App. 1977) ; Ex parte Preston, presence of the defendant in court upon 533 S.W.2d 820 (Tex.Cr.App. 1976) ; Ex the trial of the accusation against him.

parte Sellers, 516 S.W.2d 665 Fly v. State, 550 S.W.2d 684 (Tex.Cr.App. 1974) ; Ex parte White, 486 (Tex.Cr.App. 1977) ; McConathy v. State, S.W.2d 301 (Tex.Cr.App. 1972) , the only 528 S.W.2d 594 (Tex.Cr.App. 1975) . testimony as to the circumstances under While bail should be sufficiently high to which the offense was committed came give reasonable assurance that the from the petitioner. He denied his guilt undertaking will be complied with, the rf that he was implicated with power to require bail is not to be used so Rodriquez, the apparent trigger man in as to make it an instrument of the murder-robbery alleged. He did oppression. See Article 17.15(1) and (2), admit he drove Rodriquez to the grocery supra; Ex parte Kerr, 549 S.W.2d 6 store and subsequently picked him up (Tex.Cr.App. 1977) ; Ex parte Clark, several blocks from the store. He stated supra. he did not know that Rodriquez had a The evidence was meager, but did gun or had shot anyone and denied he show that petitioner's home was in San split the money with Rodriquez. From Antonio and that he had a construction the evidence offered, it would appear job with an uncle if he were to be that petitioner's criminal responsibility, released on bail. There was nothing to if any, would fall under the provisions of show that petitioner had a criminal V.T.C.A., Penal Code, § 7.01 and $7.02. record and no showing as to whether or It appears to be undisputed that not petitioner had a past history of appellant was indigent, ^[5] / and while he failing to appear while on bond. Ex Parte Vasquez , 558 S.W.2d 477 (Tex. Crim. App. 1977) indicated that [**7] he might be able to undisputed. On the same date as post a $10,000 bond, he did not reveal the habeas corpus hearing the how he would be able to do so. court, upon petitioner's affidavit, Appellant's indigency is a circumstance found the petitioner a pauper for to be considered, but it is not a the purposes of appeal. controlling circumstance nor the sole

When appellant's indigency is criterion in determining the amount of considered along with the nature of the bail. Ex parte Sierra, 514 S.W.2d 760 offense and the only testimony as to the (Tex.Cr.App. 1974) ; Ex parte Runo, 535 circumstances under which the offense S.W.2d 188 (Tex.Cr.App. 1976) ; Ex was committed which was offered, as parte Clark, supra ; Ex parte McClellan, well as all other testimony introduced, 545 S.W.2d 483 (Tex.Cr.App. 1977) ; Ex we conclude that the bail [**8] of parte Kerr, supra. $100,000 was excessive. The power to require bail is not to be used as an

5 While the trial court found that instrument of oppression. Article 17.15, the petitioner had not shown he supra; Ex parte Bufkin, supra. Bail is was financially unable to make a reduced and set in the sum of $20,000. $100,000 bond, appellant's It is so ordered. testimony as to his indigency was Gramercy Ins. Co. v. State , 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)

GRAMERCY INSURANCE CO. D/B/A BEXAR COUNTY

BAIL BONDS, Appellant v. STATE OF TEXAS, Appellee

Appeal No. 04-91-00536-CV COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO 834 S.W.2d 379 ; 1991 Tex. App. LEXIS 3287 May 6, 1991, Delivered May 6, 1991, Filed SUBSEQUENT HISTORY: [**1] Rainey, Becky, Assistant Criminal Motion for Rehearing Denied July 6, District Attorney, Bexar County Justice 1992. State's Petition for Discretionary Center, 300 Dolorosa, San Antonio, TX Review Refused November 25, 1992. 78205. JUDGES: Sitting: Alfonso Chapa, PRIOR HISTORY: Appeal from the 227th District Court of Bexar County. Justice, Fred Biery, Justice, Orlando Trial Court Nos. 91-CI-07569 and 89- Garcia, Justice SF-0209. Honorable Mike Machado, Judge Presiding. OPINION BY: FRED BIERY

DISPOSITION:

AFFIRMED AS OPINION

MODIFIED

[*380] OPINION Opinion by: Fred Biery, Justice

COUNSEL: ATTORNEYS FOR Gramercy Insurance Co. D/B/A APPELLANT: Hitchings, Barry P., Bexar County Bail Bonds, appellant, HITCHINGS, POLLOCK &

sought a remittitur from a bail bond BERNARD, 512 Highland, Suite 200, forfeiture final judgment in the amount San Antonio, TX 78210. of $ 10,000. Notwithstanding the state's election not to pursue a $ 10,000

ATTORNEYS OF APPELLEE: Hilbig, judgment on a separate and distinct $ Steven C., Criminal District Attorney, 10,000 personal recognizance bond Gramercy Ins. Co. v. State , 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) signed by the same defendant arising out correctional Institution at Bastrop, of the same criminal charge, the Texas. remittitur request related to the surety

July 1990 bond [**2] was denied. For the reasons An employee of the appellant bail stated below, we modify the trial court bond company determined that Gonzales action and, as modified, on affirm the had been incarcerated in the Nueces judgment. county jail since February 1990. Bexar A chronology of events is helpful: county authorities [**3] did not have April 17, 1989 this information until it was provided to them by appellant's employee. Appellant (Bexar County Bail Bonds) executed a bail bond in the amount of $ July 20, 1990 10,000 to secure the pretrial release from

Final judgment in the amount of $ jail of the principal, Rudolfo Lira 10,000 was granted against the appellant Gonzales. bail bond company. October 25, 1989 [*381] January 16, 1991 Because of Gonzales' failure to For the first time, Bexar County appear, the trial court signed a judgment placed a detainer on Gonzales with the nisi. United States Marshall's Office. November 28, 1989 April 18, 1991 Gonzales was arrested again and Gonzales was transferred to the placed in the Bexar County jail. Bexar County jail for disposition of his December 1, 1989 Bexar County indictment. He was convicted and sentenced to five years Notwithstanding Gonzales' failure to imprisonment in the Texas Department appear pursuant to the terms of the of Corrections. surety bond, he was granted a $ 10,000 personal recognizance bond, again June 14, 1991 securing his release from jail.

A hearing was conducted concerning January 16, 1990 the appellant surety company's petition for a bill of review and special bill of Gonzales once again failed to appear review and a hearing was conducted on and the personal recognizance bond was the amended judgment nisi forfeiting also forfeited. Gonzales' personal recognizance bond. June 27, 1990 Notwithstanding the disposition and conviction on Gonzales' criminal case

The surety company learned that and notwithstanding the state's insistence Gonzales was incarcerated at the Federal that the bail bond company pay $ 10,000 Gramercy Ins. Co. v. State , 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) on the forfeiture of the surety bond, the of action accrued. TEX. CIV. PRAC. state dismissed it's cause of action REM. CODE [**5] ANN. § 16.051 against Gonzales on the $ 10,000 (Vernon 1986) (residual limitations personal recognizance bond, presumably period). A general bill of review because of an uncollectability factor. proceeding requires a petitioner to prove Appellant surety's petition [**4] for bill (1) a meritorious defense, (2) which the of review and special bill of review was party was prevented from making by the opposite party (3) unmixed with any denied.

fault or negligence of the petitioner's The procedural vehicle by which the own. Alexander v. Hagedorn, 148 Tex. appellant surety sought relief is found in 565, 568-69, 226 S.W.2d 996, 998 article 22.17(a) of the Texas Code of (1950) . Criminal Procedure: Apparently, the state convinced the trial judge that the general bill of review Not later than two years after the date requirements must be applied to article a final judgment is entered in a bond 22.17, the statutory special bill of forfeiture proceeding, the surety on the review. We are persuaded, however, bond may file with the court a special that such is not the case and hold that a bill of review. A special bill of review statutory bill of review petitioner under may include a request, on equitable article 22.17 need not conform to the grounds, that the final judgment be rules of the equitable practice applicable reformed and that all or part of the bond to bills of review and is not limited by amount be remitted to the surety, after those restrictions. See Westchester Fire deducting the costs of court, any Ins. Co. v. Nuckols, 666 S.W.2d 372, reasonable costs to the county for the 374-375 (Tex. App.--Eastland 1984, writ return of the principal, and the interest ref'd n.r.e.) (citing Norton v. Cheney, accrued on the bond amount from the 138 Tex. 622, 161 S.W.2d 73, 74 date of forfeiture. The court in its (1942)) ; see also Pure Oil Co. v. Reece, discretion may grant or deny the bill in 124 Tex. 476, 479, 78 S.W.2d 932, 934 whole or in part. (1935) . Further, we presume the legislature intended to abrogate the

A surety also has a right to an Alexander v. Hagedorn general bill of equitable proceeding through the review requirements when it passed procedure of a general bill of review. article [**6] 22.17 in 1987. Williams v. State, 670 S.W.2d 717, 722 Accordingly, a petitioner under article (Tex. App.--San Antonio 1984), aff'd as 22.17 is not required to allege and prove modified 707 S.W.2d 40 (Tex. Crim. the Alexander v. Hagedorn elements of a App. 1986) . An original petition for a meritorious defense which could not be general bill of review must be brought presented because of conduct by the within four years after the date the cause Gramercy Ins. Co. v. State , 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) opposing party unmixed with any fault United States v. Mizani, 605 F. 2d or negligence of the petitioner's own. 739, 740 (4th Cir. 1979) ; Johnson

v. State, 172 Tex. Crim. 624, 361 On the other hand, a special bill of S.W.2d 574, 575-76 (Tex. Crim. review proceeding under article 22.17 App. 1961) , cert. denied, 371 U.S. should take into account that the object 828, 9 L. Ed. 2d 66, 83 S. Ct. 20 and purpose of bail is to secure the (1962) ; Ricard v. State, 171 Tex. presence of the accused for disposition Crim. 456, 350 S.W.2d 938, 938-40 of the criminal charges against him and (Tex. Crim. App. 1961) ; Williams v. consider other factors including, but not State, 159 Tex. Crim. 443, 265 necessarily limited to the following: S.W.2d 92, 94 (Tex. Crim. App. 1954) .

1) a bail bond is not punitive, nor is it intended to be a substitute for a fine or In applying these factors to the case [*382] a revenue device to enrich the before us, the record reflects the government's coffers. See Carbo v. following: United States, 7 L. Ed. 2d 769, 82 S. Ct.

1) There is no evidence in the record 662, 665 (1962) ; United States v. Bass, regarding any cost or inconvenience to 573 F.2d 258, 260 (5th Circ. 1978) ; the state in regaining custody of Trammel v. State, 529 S.W.2d 528, 529 Gonzales. (Tex. Crim. App. 1975) . 2) A brief thirty-four day delay was 2) The government's cost and occasioned by Gonzales' failure to inconvenience in regaining custody. appear. 3) The delay caused by the principal's [**8] 3) There apparently was no failure to appear. evidence of any willfulness of the breach 4) The willfulness of the principal's of conditions in view of the undisputed breach of the bond conditions. 5) The fact that Mr. Gonzales was given a public [**7] interest in insuring the personal recognizance bond three days after his rearrest and in view of the principal's appearance.

state's decision not to pursue a $ 10,000 6) The participation of the surety in judgment against Mr. Gonzales on his rearresting the principal. 7) The personal recognizance bond. prejudice suffered by the government. ^[1] 4) The public interest in law 1 enforcement was served by Mr. Gonzales' quick reapprehension. See, e.g., United States v. Cervantes, 672 F.2d 460, 461 (5th 5) The government suffered no Cir. 1982) ; United States v. Parr, prejudice in prosecuting the criminal 594 F.2d 440, 444 (5th Cir. 1979) ; case against Mr. Gonzales and, in fact,

Gramercy Ins. Co. v. State , 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) the appellant surety was the party who surety is able to pay the $ 10,000 to the located Mr. Gonzales in the Nueces government. We hold that equity, due County Jail and informed Bexar County process and basic concepts of fairness authorities. require that Chapter 22 of the Texas

code of criminal Procedure be applied We are also troubled by the apparent similarly to surety bonds and personal double standard of due process applied recognizance bonds alike. by the state to Mr. Gonzales and the Accordingly, we sustain the appellant appellant surety. On the same day that the state vigorously pursued the $ surety's point of error. There is authority 10,000 judgment against the appellant for the proposition that an appropriate surety, it filed a motion for nonsuit as to remittitur can be ordered by the Mr. Gonzalez' $ 10,000 obligation and appellate court. Johnson v. State, 361 said: S.W.2d at 575-76 ; Ricard v. State, 350

S.W.2d at 938-40 ; Williams v. State, 265 Plaintiff [THE STATE] no longer S.W.2d at 95 . Taking into account the desires to prosecute [its] suit against requirements of article 22.17 concerning Rudolfo L. Gonzales, who is principal deduction for court costs, costs for and surety on this [personal bond] as returning Gonzales to Bexar county and defendant Rudolfo L. Gonzales has been the interest accrued on the bond from the returned to custody [**9] and the case is date of forfeiture to the date of rearrest closed, therefore the purpose of the (thirty two days), we order that the [personal bond] has been satisfied. judgment of the trial [**10] court be (emphasis added). reformed to reflect a remittitur of $ The rationale for not pursuing a $ 9,500. As modified, the judgment of the 10,000 judgment against Mr. Gonzales trial court is affirmed. could and should equally be applied to

FRED BIERY,

the appellant surety. The only apparent difference between the appellant surety Justice and Mr. Gonzales is that the appellant

Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) GRIMES COUNTY BAIL BOND BOARD, Appellant v.

SONNY ELLEN D/B/A SONNY ELLEN BAIL BONDS,

Appellee NO. 14-06-00906-CV, NO. 14-06-00907-CV COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON 267 S.W.3d 310 ; 2008 Tex. App. LEXIS 5489 July 22, 2008, Judgment Rendered July 22, 2008, Opinion Filed SUBSEQUENT HISTORY: Petition for review filed by, 10/15/2008 OPINION BY: William J. Boyce PRIOR HISTORY: [**1] OPINION On Appeal From The 12th District

[*313] The Grimes County Bail Court, Grimes County, Texas. Trial Bond Board suspended and later Court Cause No. 30,088 and 30,140. revoked Sonny Ellen's bail bond surety Ellen v. Brazos County Bail Bond Bd., license after he failed to disclose unpaid 127 S.W.3d 42, 2003 Tex. App. LEXIS judgments for bail bond forfeitures in his 6159 (Tex. App. Houston 14th Dist., license application. In a de novo appeal, 2003) the trial court found that Ellen had failed to pay judgments but nonetheless reinstated his license. Because Ellen had

COUNSEL: For APPELLANTS: Jon unpaid judgments at the time of trial, the Christopher Fultz, Anderson, TX. trial court abused its discretion in reinstating his license. We therefore

For APPELLEES: Lane D. Thibodeaux, reverse the trial court's judgment and Bryan, TX. remand for further proceedings consistent with this opinion.

JUDGES: Panel consists of Chief Justices Hedges, and Justices Brown and

BACKGROUND

Boyce. Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) The Board issued a bail bond surety section 1704.252 to provide discretion to license to Sonny Ellen in April 2005. reinstate, which it employed to reinstate Ellen's license. The Board appealed. ^[3] Two months later, the Board suspended Ellen's license for failing to pay or supersede 26 judgments and instructed 2 The Board also concluded that him to pay all outstanding judgments to Ellen made a false statement on his avoid license revocation. In 23 of those license application. The trial court cases, Ellen filed special bills of review noted on the record that Ellen had in which he sought to reduce the answered a license application amounts owed. ^[1] On July 8, 2005, those

question incorrectly, but those special bills were denied. Ellen comments were [**3] not reduced subsequently paid most -- but [**2] not to a formal finding of fact; all -- of the outstanding judgments. therefore, we will not consider

them. See Stevens v. Snyder, 874 1 Filing a special bill of review S.W.2d 241, 243 (Tex. App.--Dallas does not obviate the bondsman's 1994, writ denied) . The record does obligation to pay or supersede a not demonstrate that the Board forfeiture judgment. See Tex. Occ. requested an additional finding of Code Ann. § 1704.204(a) (Vernon fact on this ground, and the trial 2004); In re Casteneda, No. 04-04- court's lack of such finding 00152-CV, 2004 Tex. App. LEXIS therefore is not preserved for 2552, 2004 WL 572355, at *1 (Tex. review. See Robles v. Robles, 965 App.--San Antonio March 24, S.W.2d 605, 611 (Tex. App.-- 2004, orig. proceeding [mand. Houston [1st Dist.] 1998, pet. denied]) (mem. op.) . denied) .

3 Ellen separately appealed the The Board revoked Ellen's license on Board's rulings suspending and July 15, 2005 for failing to pay later revoking his license. The trial judgments pursuant to Occupations court consolidated those two de Code sections 1704.204 [*314] and novo proceedings, and we resolve 1704.252 . ^[2] Ellen appealed the Board's both together. decision to the district court, which conducted a trial de novo on appeal. The

STANDARD OF REVIEW

court found that Ellen failed to pay judgments in accordance with A bail bond licensee may appeal a Occupations Code section 1704.204 , board order suspending or revoking a which is a stated reason for suspending license by filing a petition in the trial or revoking a bail bond surety license. court. Tex. Occ. Code Ann. § 1704.255(a) (Vernon 2004). The trial See Tex. Occ. Code Ann. § 1704.252(8) (Vernon 2004). The court interpreted court is to review the appeal "by trial de

Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) novo in the same manner as an appeal factual sufficiency of the evidence from a justice court to a county court." supporting a jury's answer to a jury Tex. Occ. Code Ann. § 1704.256 question. Blackwood, 2 S.W.3d at 33 (Vernon 2004). Therefore, in the district (citing Catalina v. Blasdel, 881 S.W.2d court both sides present evidence to the 295, 297 (Tex. 1994)) . In reviewing the trial judge for a determination on the trial court's conclusions [**5] of law, evidence introduced. See Harris County we will uphold on any legal theory supported by the evidence. Burns, 881 Bail Bond Bd. v. Burns, 881 S.W.2d 61, 62 (Tex. App.--Houston [14th Dist.] S.W.2d at 62 . 1994, writ denied) . [**4] The board's decision to revoke a license enjoys no ANALYSIS deference during the de novo appeal. See

The governing statute provides that id. Instead, the trial court is vested with "[a]fter notice and hearing, a board may full power to determine the issues and revoke or suspend a license if the license rights of all parties, and to try the case as holder ... fails to pay a judgment in though it had been filed originally in that accordance with Section 1704.204 ." Tex. court. See Harris County Bail Bond Bd. Occ. Code Ann. § 1704.252(8) . Section v. Blackwood, 2 S.W.3d 31, 33 (Tex. 1704.204 requires a bondsman to pay a App.--Houston [1st Dist.] 1999) , rev'd final judgment on a bail bond forfeiture on other grounds, 41 S.W.3d 123 (Tex. not later than the 31st day after the date 2001) . ^[4] of the final judgment unless such judgment [*315] has been appealed, in

4 Although the Texas Supreme which case the bondsman must deposit Court reversed Blackwood, it with the court either cash or a nonetheless upheld the principle supersedeas bond in the amount of the that a board's decision is entitled to judgment. See id. § 1704.204(a) . no deference. See Harris County In 1994, we examined the Bail Bond Bd. v. Blackwood, 41 predecessor statute to section 1704.252 S.W.3d 123, 127 (Tex. 2001) ("[I]n and concluded that a trial court may not a de novo proceeding it was renew the license of a bondsman who necessary that the [evidence] has failed to pay or supersede judgments required by the statute be before arising from bond forfeitures. Burns, the trial court, which was required 881 S.W.2d at 64 . The only choices in to pass on [the license] application that circumstance are revocation or without regard to the Board's suspension. See generally id. at 64-65 decision. ") (emphasis added). (applying the grounds for revocation or We review the trial court's factual suspension to license renewal). We findings under the same standards that rejected a suggested interpretation that would be used in reviewing the legal or would have allowed a board or trial Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) court to permit persons to work as revoke his license based upon the bondsmen even though [**6] they were presence of unpaid, unsuperseded statutorily disqualified from doing so. judgments. He urges us to overrule See id. at 63 . We concluded that such a Burns, contending that the decision statutory interpretation would defeat the violates the Code Construction Act's legislative purpose of protecting the definition of the term "may;" defeats the public's interest in securing the purpose of de novo appeal; and renders an accompanying statutory provision appearance of the accused. See id.; In re Canales, 52 S.W.3d 698, 702 (Tex. meaningless. 2001) (orig. proceeding) (court may

We decline the invitation to overrule consider the statute's objectives and the Burns, and we re-affirm that the bail consequences of a particular bond act gives a trial court discretion to construction). choose between suspending or revoking Almost a decade later, we concluded the license of a bondsman who has that Burns survived the Legislature's unpaid judgments at the time of the de 1999 recodification of the bail bond act. novo hearing. The trial court does not See Ellen v. Brazos County Bail Bond have discretion to reinstate a license because the statute does not provide this Bd., 127 S.W.3d 42, 47-48 (Tex. App.-- Houston [14th Dist.] 2003, no pet.) . We option under these circumstances. We presume that the Legislature knew of our reach this conclusion based not only on interpretation in Burns when it the continuing vitality of Burns, but also recodified the statute. See Coastal Indus. because of the statute's unambiguous Water Auth. v. Trinity Portland Cement language. Div., 563 S.W.2d 916, 918 (Tex. 1978) . The recodified statute carried forward A. Stare Decisis the same language we interpreted in

Given Burns, a discussion of stare Burns, thereby indicating a legislative decisis is warranted at the outset. Our adoption of our prior construction. See prior opinions have continuing authority, id. even when a party contends that a Although Burns involved license precedent was incorrectly decided. See renewal rather than suspension or Guest v. Cochran, 993 S.W.2d 397, 404 revocation, the legal justifications for n.6 (Tex. App.--Houston [14th Dist.] refusing to renew a license apply with 1999, no pet.) . [**8] We generally equal force to suspension or revocation. adhere to our precedents pursuant to See id. at 64-65 . Ellen candidly [**7] stare decisis because consistency acknowledges that, under Burns's promotes efficiency, fairness, and interpretation of the bail bond act, the legitimacy. See Weiner v. Wasson, 900 trial court could not reinstate his license; S.W.2d 316, 320 (Tex. 1995) . If we did not follow our own decisions we would its only choices were to suspend or

Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) not be giving due consideration to the legislative intent. Canales, 52 S.W.3d at settled expectations of litigants because 702 . If a statute is clear and no issue could ever be considered truly unambiguous, we need not resort to resolved. See id. In addition, the rules of construction. Id. We may legitimacy of the [*316] judiciary rests consider, among other things, the in significant part "upon a stable and statute's objectives and the consequences predictable decisionmaking process." Id. of a particular construction. Id. We read

the statute as a whole and interpret it to Stare decisis is strongest in cases effectuate every part. See City of involving statutory construction because Houston v. Jackson, 42 S.W.3d 316, the Legislature may correct perceived 319-20 (Tex. App.--Houston [14th Dist.] construction errors through statutory 2001, pet. dism'd w.o.j.) . amendment. See Fiess v. State Farm Lloyds, 202 S.W.3d 744, 749-50 (Tex. Ellen focuses on the word "may" in 2006) . As noted above, the Legislature the phrase "may revoke or suspend" met after Burns was issued and appearing in section 1704.252 . Ellen recodified the bail bond act without argues that "may" is permissive rather substantive change. See Tex. Occ. Code than mandatory so as to give a trial court discretion to reinstate if it so chooses. Ann. § 1.001 (Vernon 2004). We therefore presume that the Legislature Ellen stresses that the term "may" intended the same construction to signifies "discretionary authority or continue to apply. See Fiess, 202 S.W.3d grants permission or a power." See Tex. at 749-50 . This presumption underscores Gov't Code Ann. § 311.016(1) (Vernon that Burns was correctly decided. [**10] 2005). This is true as far as it

goes -- but it does not go as far as Ellen In light of Ellen's challenge to the contends. correctness and wisdom of Burns, however, we do not rely solely upon The word "may" must be analyzed, stare [**9] decisis in concluding that but it must not be analyzed in isolation; the trial court lacked discretion to statutory context must be considered. See, e.g., Aaron Rents, Inc. v. Travis reinstate Ellen's license in the face of unpaid judgments. We reach this Cent. Appraisal Dist., 212 S.W.3d 665, decision because we adhere to our 671 (Tex. App.--Austin 2006, no pet.) precedent, and because this result is ("[W]hether a statute requires the dictated by legislative intent reflected in imposition of attorney's fees or vests the the operative statutory language. trial court with the discretion to decide

does not depend exclusively on whether the statute uses the word 'may' or B. Statutory Construction 'shall.'"); BWI Cos. v. Beck, 910 S.W.2d In construing a statute, our primary 620, 623 (Tex. App.--Austin 1995, orig. goal is to determine and effectuate proceeding [mand. overruled]) . Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) Additionally, the Code Construction Act mentioned in section 1704.252 . The does not elevate any particular rule over word "may" cannot be divorced from its another. See Tex. Gov't Code Ann. § surrounding language to change the 311.003 (Vernon 2005). We note that statute's meaning, or to add an option the several other provisions of the Code statute does not provide under these Construction Act support our conclusion circumstances. See Jones v. Liberty Mut. in this case, including: Ins. Co., 745 S.W.2d 901, 902 (Tex.

1988) ; see also Morales v. Liberty Mut. . The entire statute is Ins. Co., 241 S.W.3d 514, 517-18 (Tex. presumed to be effective. Id. 2007) (requiring that statutes be read in § 311.021(2). context).

. A just and reasonable Section 1704.252 's unambiguous result is intended. Id. § language effectuates the statute's 311.021(3) . purpose. The bail bond act was intended

to ensure the financial security and . Public interests are integrity of bondsmen, "whose business favored over private interests. the Act deems to be in the public interest Id. § 311.021(5) . aimed at securing the appearance of the . The Court may consider accused." Burns, 881 S.W.2d at 63 ; the objects to be attained and [**12] Blackwood, 41 S.W.3d at 128 . the consequences of a Consistent with that purpose, the Act -- particular construction. Id. § when read as a whole -- evinces a 311.023 . consistent legislative intent to prevent bondsmen with unpaid judgments from

We agree [**11] that the word "may" continuing to issue bail bonds. See, e.g., vests the trial court with discretion, but Code Crim. Proc. Ann. art. 17.11, § 2 that discretion does not encompass (Vernon 2005) (disqualifying defaulting reinstatement. sureties from signing as sureties on additional bonds). Accordingly, license

Section 1704.252 's key language applicants must disclose any unpaid provides that "a board may revoke or judgments; until such judgments are suspend a license if the license holder ... paid, applicants are expressly barred fails to pay [*317] a judgment[.]" Tex. from licensure. See Tex. Occ. Code Ann. Occ. Code Ann. § 1704.252(8) § 1704.154(b) , (d) . Had Ellen disclosed (emphasis added). This language is the unpaid judgments, the Board would unambiguous. It gives the trial court have been required to deny his discretion to choose between revocation application. See Blackwood, 41 S.W.3d and suspension. It does not give the trial at 126 ("The Act therefore makes all court discretion to choose a application requirements mandatory."). reinstatement option that is nowhere Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) We will not embrace an interpretation of Consistent with this purpose, a proper section 1704.252 that ignores unpaid bail bond must contain the surety's judgments foreclosing Ellen's licensure. binder that the defendant will appear to

answer the charges. Tex. Code Crim. Enforcement of the bail bond act's Proc. Ann. art. 17.08, § 2 . An officer unambiguous provisions is important for who accepts a bail bond must verify the the proper functioning of the bail sufficiency of the [**14] security mechanism. Bail is the security a offered. Id. art 17.11, § 1 ; art. 17.13 . criminal defendant gives to evidence his Those who would act as sureties must promise that he will appear and answer pass several eligibility requirements, the accusations brought against him. including possession of sufficient Tex. Code Crim. Proc. Ann. art. 17.01 financial resources; experience in the (Vernon 2005). The primary purpose bail bond business; and education from [**13] of a bail bond is to secure the an accredited [*318] institution of presence of the defendant in court for higher learning. See Tex. Occ. Code trial on the offense with which he has Ann. § 1704.152 . been charged. McKenna v. State, 247 S.W.3d 716, 719 (Tex. Crim. App. 2008) . After becoming licensed, a bondsman

is prohibited from writing bail bonds Bail bonds are contracts between the totaling more than ten times the value of surety and the State of Texas. Reyes v. the deposited security. Id. § State, 31 S.W.3d 343, 345 (Tex. App.-- 1704.203(a) . Further, a bondsman may Corpus Christi 2000, no pet.) . The not execute additional bail bonds if the contract consists of the surety's promise amount of liability on pending that the defendant will appear before the judgments nisi equals or exceeds twice court. See id. at 346 . Forfeiture the amount of the deposited security. Id. judgments recognize that the State may § 1704.203(c) . A bondsman must incur costs or suffer inconvenience in re- promptly pay all forfeiture judgments arresting an accused who fails to appear. not later than the 31st day after the date See McKenna, 247 S.W.3d at 719 . While of the judgment, unless superseded on bail bonds are neither punitive nor a appeal. Id. § 1704.204(a) . A licensing substitute for fines or revenue devices, board that learns of unpaid final they protect the public's interest by judgments must immediately notify the ensuring the defendant's appearance and sheriff, who is prohibited from accepting encouraging the surety's participation in any bonds from that surety until the re-arrest when the defendant does not judgments have been paid. See id. § appear. See Gramercy Ins. Co. v. State, 1704.2535 . These enforcement 834 S.W.2d 379, 381-82 (Tex. App.--San provisions protect against a bondsman's Antonio 1992, no writ) . insolvency. Font v. Carr, 867 S.W.2d Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) 873, 880 (Tex. App.--Houston [1st Dist.] determination to revoke, therefore enjoy 1993, writ dism'd w.o.j.) . no deferential treatment. See Burns, 881

S.W.2d at 62 . In [**15] light of this detailed structure, the existence of multiple But the power to try a case de novo unpaid judgments is no mere does not confer unbridled discretion to technicality. A bondsman's accumulation pick an outcome the statute does not of unpaid judgments undermines the specify for a bondsman with unpaid judgments. Section 1704.252 limits the entire bail process. The Legislature consistently has spoken to prevent trial court's options if it finds one of the defaulting sureties from continuing to enumerated statutory violations. See id. act as bail bondsmen. Interpreting (providing that a license may be revoked section 1704.252 to permit reinstatement or suspended if the bondsman is found in the face of unpaid judgments would to have committed one of the listed eviscerate legislative intent to prevent violations). The terms "revoke" and bondsmen in default from continuing to "suspend" are not interchangeable. A issue bail bonds. See Burns, 881 S.W.2d suspended license is subject to at 63 . reinstatement if the violation that led to

suspension can be cured. See, e.g., Tex. C. Trial De Novo Occ. Code Ann. § 1704.253(a) (providing for reinstatement of a Ellen contends that continued suspended license after the deposit of adherence to Burns is incompatible with additional security). By contrast, a judicial review of a board's decision by bondsman whose license has been trial de novo in the district court. See revoked must reapply for a new license. Tex. Occ. Code Ann. §§ 1704.255(a) , See, e.g., Austin v. Harris County Bail 1704.256 . The basis for this contention Bond Bd., 756 S.W.2d 65, 66 (Tex. App.- is not clear. The district court's power to -Houston [1st Dist.] 1988, writ denied) . conduct a trial "de novo," that is, a "trial anew," vests the court with full power to Allowing a trial court to re-hear the evidence and reach its own determine the issues and parties' rights, and to try the case as though suit had determination while confining its been filed originally in that court. See options within the boundaries of section Lone Star Gas Co. v. State, 137 Tex. 1704.252 harmonizes [**17] statutory 279, 153 S.W.2d 681, 692 (Tex. 1941) ; language with legislative intent to Blackwood, 2 S.W.3d at 33 . The trial prevent sureties from issuing bail bonds court, as the trier of fact, weighs the while in default of forfeiture judgments. evidence and assesses credibility. See [*319] The trial court need not make the Jones v. Tarrant Util. Co., 638 S.W.2d same ruling as the licensing board. For 862, 866 (Tex. 1982) . [**16] The example, although a board may revoke a license for unpaid judgments, the trial Board's factual findings, and ultimate

Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) court may opt to consider mitigating § 311.024 . Accordingly, we will factors and decide upon suspension not consider the title when pending payment of the outstanding interpreting the statute. judgments. Moreover, if the license

Under section 1704.252(8) , the board holder can cure a section 1704.252 "may revoke or suspend a license" if the violation at the time of the de novo license holder fails to pay or supersede a hearing by paying outstanding judgment. Under section 1704.253(a) , judgments, the license then may be the board "shall immediately suspend a reinstated because section 1704.252 no license" if the license holder fails to longer would require suspension or maintain the aggregate security required revocation. In short, our interpretation under section 1704.160 . Under section does not conflict with the concept of de 1704.253(b) , the board "shall revoke a novo review. license" if the license holder fails to maintain the aggregate security required

D. Role of Section 1704.253 under 1704.160 , and also fails to pay or Ellen argues that our interpretation of supersede a judgment. section 1704.252 is erroneous because it Section 1704.252(8) vests the trial renders meaningless an accompanying court with discretion to suspend or provision, section 1704.253 . We revoke a license if the bondsman fails to disagree. pay or supersede a judgment. See Tex. Section 1704.252 provides for Occ. Code Ann. § 1704.252(8) . In "Discretionary License Suspension or contrast, section 1704.253(a) gives the Revocation," while section 1704.253 trial court no discretion if the bondsman provides for "Mandatory License fails to maintain the aggregate security Suspension or Revocation." ^[5] Ellen

required [**19] under section 1704.160 ; contends that interpreting section suspension is the only option. Similarly, 1704.252 to require suspension or section 1704.253(b) gives a trial court no discretion if the bondsman fails to revocation -- and to exclude pay or supersede a judgment, and also reinstatement -- [**18] makes section 1704.253 meaningless because this latter fails to maintain the aggregate security provision also requires suspension or required under section 1704.160 . In that revocation. This argument fails to latter circumstance -- which couples an recognize that sections 1704.252 and unpaid and unsuperseded judgment with 1704.253 address different insufficient aggregate security -- circumstances. revocation is the only option. See id. §

1704.253(b) . Because sections 1704.252 5 The title of a section does not and 1704.253 address different circumstances, our interpretation of limit or expand the statute's meaning. See Tex. Gov't Code Ann. section 1704.252 does not render section

Grimes Co. Bail Bond Board v. Ellen , 267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) 1704.253 meaningless. See Helena still has unpaid judgments against him. Chem. Co. v. Wilkins, 47 S.W.3d 486, If so, the trial court can decide [*320] 493 (Tex. 2001) . whether to revoke [**20] Ellen's license

or suspend it until all outstanding judgments have been paid. CONCLUSION Section 1704.252 vests the trial court Accordingly, we reverse the July 18, with the discretion to revoke or suspend 2006 judgments in cause numbers a bondsman's license when there are 30,088 and 30,140, and remand to the unpaid judgments. Because the trial trial court for further proceedings court found that Ellen had unpaid consistent with this Opinion. judgments but nevertheless reinstated his

/s/ William J. Boyce license, we must reverse. The Board Justice asks that we render judgment in its favor. However, we believe that remand

Judgment Rendered and Opinion is appropriate. We remand these filed July 22, 2008. proceedings to the trial court for a determination as to whether Sonny Ellen

KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) KPMG Peat Marwick, Petitioner v. Harrison County Housing Finance Corp., Respondent No. 97-0729,

SUPREME COURT OF TEXAS

988 S.W.2d 746 ; 1999 Tex. LEXIS 39 ; 42 Tex. Sup. J. 428 October 20, 1998, Argued March 25, 1999, Delivered

PRIOR HISTORY: [**1] On We are asked to decide whether Petition for Review from the Court of Harrison County Housing Finance Appeals for the Sixth District of Texas. Corporation's (HCH) claims against KPMG Peat Marwick, LLP for

DISPOSITION: Court of appeals' violations of the Deceptive Trade judgment reversed and judgment Practices Act and negligence are barred rendered that HCH take nothing. by the two-year statute of limitations. The trial court granted summary

COUNSEL:

FOR PETITIONER: judgment for Peat Marwick on all of Mountz, Mr. Timothy W., Baker & HCH's claims. But the court of appeals Botts, Dallas, TX. reversed the trial court's summary judgment on the DTPA and negligence

FOR RESPONDENT: Grajczyk, Mr. claims and remanded these for trial. ^[1] Gregory P., Boos Law Office, Milbank,

SD.

1 948 S.W.2d 941 . Applying the discovery rule, the JUDGES: Justice Enoch delivered the court of appeals held that neither claim opinion of the Court. was time-barred. It reasoned that Peat Marwick had not presented conclusive

OPINION BY:

CRAIG T. ENOCH evidence that HCH discovered or in the exercise of reasonable diligence should

OPINION

have discovered the wrongful [**2] act [*747] Justice Enoch delivered the opinion of the Court. KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) which allegedly caused its injury more alleged that in February 1989, First than two years before HCH filed suit. ^[2]

Interstate prematurely sold assets in the capital reserve fund, resulting in a loss in

2 Id. at 947 . excess of $ 621,000 when the bonds were refunded in December 1991. First To the contrary, we conclude that Interstate and its shareholder moved for Peat Marwick has conclusively summary judgment on several grounds, established that HCH's claims against including that the bank had not Peat Marwick accrued more than two mismanaged the trust funds, that HCH years before suit was filed. Accordingly, was well informed of the bank's actions we reverse the court of appeals' through monthly reports, and that HCH's judgment on both the DTPA and claims were barred by the applicable negligence claims and render judgment [*748] statutes of limitations. Without that HCH take nothing. specifying the grounds, the trial court From 1980 to 1990, Peat Marwick granted First Interstate's motion for provided accounting and auditing summary judgment. HCH did not services to HCH for a series of bonds appeal. HCH had issued. In addition, Peat On October 1, 1993, while the First Marwick was to ensure that the trustee Interstate lawsuit was still pending, for the bonds, First Interstate Bank of HCH learned about Peat Marwick's 1985 California, complied with the trust agreement with First Interstate and that indenture. Peat Marwick's 1985 audit of First Under the trust indenture, one of First Interstate's records had revealed Interstate's duties as trustee was irregularities in First Interstate's overseeing a capital reserve fund accounting of the trust assets. According established to pay principal or to redeem to HCH, Peat Marwick informed [**4] bonds. And during the period of the First Interstate but not HCH of the auditing services, specifically in 1985, irregularities. HCH further claims it then First Interstate hired, on its own behalf, discovered that Peat Marwick had a partner from Peat Marwick to prepare advised First Interstate that the capital a special procedures report about the reserve fund could be set at an amount trust [**3] assets. But Peat Marwick did lower than what the trust indenture not tell HCH about this dual required. And HCH asserts that Peat representation. Marwick did not report that advice to

HCH.

On February 1, 1993, HCH filed suit against First Interstate and one of its HCH sued Peat Marwick in federal shareholders, alleging breach of court on July 14, 1995, but the case was fiduciary duty, breach of contract, dismissed for lack of subject matter negligence, and gross negligence. HCH jurisdiction. HCH then filed suit in state KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) court. For this appeal, Peat Marwick Summary Judgment Standard of concedes that July 14, 1995, is the Review The standard for reviewing a applicable date to determine whether summary judgment under Texas Rule of HCH's claims were barred when filed. ^[3]

Civil Procedure 166a(c) is whether the successful movant at the trial level

3 See Tex. Civ. Prac. & Rem. carried its burden of showing that there Code § 16.064(a) . is no genuine issue of material fact and

that judgment should be granted as a In this case, HCH alleged that Peat matter of law. ^[4] In conducting our Marwick, as the trust's auditor, either review, we take as true all evidence negligently or intentionally failed to favorable [**6] to the nonmovant, and disclose First Interstate's we make all reasonable inferences in the mismanagement of the trust. HCH nonmovant's favor. ^[5] further alleged causes of action for breach of warranty (which is not part of

4 See, e.g., Lear Siegler, Inc. v. this appeal) and violations of the DTPA. Perez , 819 S.W.2d 470, 471 (Tex. In support of its motion for summary 1991) ; Nixon v. Mr. Property judgment on limitations grounds, [**5] Management Co. , 690 S.W.2d 546, Peat Marwick attached HCH's original 548-49 (Tex. 1985) . petition in the suit against First 5 See Nixon , 690 S.W.2d at 548- Interstate. That petition sought recovery 49 . for the same injury -- the premature A defendant moving for summary selling of the fund assets in 1989 judgment on the affirmative defense of resulting in a loss in excess of $ 621,000 limitations has the burden to -- that HCH alleges in this suit was conclusively establish that defense. ^[6] caused by Peat Marwick's wrongful Thus, the defendant must (1) conduct. Peat Marwick contends that the conclusively prove when the cause of petition against First Interstate action accrued, and (2) negate the demonstrates that HCH knew of its discovery rule, if it applies and has been claim no later than February 1, 1993. pleaded or otherwise raised, by proving Apparently in response, HCH amended as a matter of law that there is no its petition to allege that not until genuine issue of material fact about October 1, 1993, did it learn of Peat when the plaintiff discovered, or in the Marwick's role in the disputed financial exercise of reasonable diligence should irregularities. But it does not appear that have discovered the nature of its injury. ^[7] HCH filed a formal response to Peat If the movant establishes that the statute Marwick's motion for summary [**7] of limitations bars the action, the judgment or produced any evidence to nonmovant must then adduce summary defeat the motion. As mentioned, the trial court granted summary judgment. I.

KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) judgment proof raising a fact issue in 11 See Tex. Bus. & Com. Code § avoidance of the statute of limitations. ^[8]

17.49(c) . Contending that during the relevant 6 See Velsicol Chem. Corp. v. time period Peat Marwick had worked Winograd , 956 S.W.2d 529, 530 for First Interstate independently as well (Tex. 1997) . as for [**9] HCH, HCH argues that its 7 See Burns v. Thomas , 786 claims against Peat Marwick did not S.W.2d 266, 267 (Tex. 1990) ; accrue until October 1, 1993, when it Woods v. William M. Mercer, Inc. , learned through discovery in the First 769 S.W.2d 515, 518 n.2 (Tex. Interstate suit that Peat Marwick knew 1988) . of financial irregularities in the bond 8 See City of Houston v. Clear issue but failed to report them to HCH. Creek Basin Auth. , 589 S.W.2d In agreeing with HCH, the court of 671, 678 (Tex. 1979) . appeals erroneously concluded that in recent decisions this Court employed a

[*749] II. Accrual of HCH's DTPA "new formulation" of the discovery rule. Claim ^[12] The court of appeals held that under A DTPA claim is subject to a two- this "new formulation," a claim does not year statute of limitations. The claim accrue until plaintiff knows not only of accrues when "the consumer discovered the injury, but the specific nature of each or in the exercise of reasonable diligence wrongful act that may have caused the

injury. ^[13] This is incorrect. The rule in should have discovered [**8] the occurrence of the false, misleading, or those cases was, as it is in this one, that deceptive act or practice." ^[9] Thus, the

accrual occurs when the plaintiff knew discovery rule applies to HCH's DTPA or should have known of the wrongfully claim. ^[10] We note caused injury. ^[14]

that effective September 1, 1995, the Legislature amended the DTPA to exempt 12 See 948 S.W.2d at 946 (citing professional services with some Diaz v. Westphal , 941 S.W.2d 96, exceptions. But because this suit was 99 (Tex. 1997) ; S.V. v. R.V. , 933 originally filed before that date, the 1995 S.W.2d 1, 4 (Tex. 1996)) . amendments do not apply. ^[11]

13 See 948 S.W.2d at 947 . [**10] 9 Tex. Bus. & Com. Code § 17.565 .

14 See Murphy , 964 S.W.2d at 10 See Burns , 786 S.W.2d at 267 ; 271 ; Diaz , 941 S.W.2d at 99 ; S.V. , see also Murphy v. Campbell , 964 933 S.W.2d at 4 ; see also Childs v. S.W.2d 265, 271 (Tex. 1997) . Haussecker , 974 S.W.2d 31, 40 (Tex. 1998) ; Russell v. Ingersoll

KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) Rand Co ., 841 S.W.2d 343, 344 n.3 also asserts that its pleading is sufficient (Tex. 1992) ; Moreno v. Sterling summary judgment evidence of the Drug, Inc. , 787 S.W.2d 348, 351 affirmative defense of fraudulent (Tex. 1990) . concealment to defeat Peat Marwick's

summary judgment motion. In both The summary judgment evidence respects, HCH is incorrect. established that the wrongful injury HCH alleges it suffered is the loss of First, a party asserting fraudulent over $ 621,000 in December 1991 when concealment as an affirmative defense to it refunded the bonds following the the statute of limitations has the burden premature sale in 1989 of the reserve to raise it in response to the summary

judgment motion ^[15] and to come forward fund assets. Significantly, HCH sued First Interstate over this precise injury in with summary judgment evidence early 1993, less than two years later. raising a fact issue on each element of

the fraudulent concealment defense. ^[16] A Indisputably, HCH was aware by then of its injury and that its injury was caused mere pleading does not satisfy either

[*750] burden. ^[17] Thus, even assuming by the wrongful conduct of another. that HCH pled fraudulent concealment The loss from the premature sale of as an affirmative defense to Peat [**12] the fund assets should have caused HCH Marwick's answer pleading limitations, to investigate not only the possibility HCH still had to respond to Peat that First Interstate had mismanaged the Marwick's summary judgment motion. fund assets, as HCH apparently did There is no such response in the record. because it sued First Interstate, but also Therefore, HCH did not carry its burden Peat Marwick's possible [**11] to both plead the defense and support it involvement in the mismanagement and with summary judgment evidence. loss. HCH had hired Peat Marwick to do annual trust asset audits, including the

15 See Tex. R. Civ. P. 166a(c) ; reserve fund, to ensure compliance with Hudson v. Wakefield , 711 S.W.2d the trust indenture. Therefore, the loss 628, 630 n.1 (Tex. 1986) ; City of should have caused HCH to also Houston , 589 S.W.2d at 679 . investigate why its auditor, Peat 16 See American Petrofina, Inc. Marwick, did not discover or report the v. Allen 887 S.W.2d 829, 830 (Tex. mismanagement. 1994) ; Nichols v. Smith , 507 As an independent ground to defeat S.W.2d 518, 521 (Tex. 1974) . summary judgment, HCH asserts that 17 See City of Houston , 589 Peat Marwick fraudulently concealed its S.W.2d at 678 . wrongful conduct, and limitations did Second, when a defendant has not begin to run until HCH knew or fraudulently concealed the facts forming should have known of its injury. HCH the basis of [**13] the plaintiff's claim, KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999) limitations does not begin to run until 20 See Childs , 974 S.W.2d at 36 ; the claimant, using reasonable diligence, Murphy , 964 S.W.2d at 270 . discovered or should have discovered

HCH argues that its negligence claim the injury. ^[18] Because Peat Marwick's against Peat Marwick did not accrue summary judgment evidence until it learned through discovery in the conclusively established that HCH First Interstate suit of Peat Marwick's discovered its injury more than two wrongful conduct. We disagree. years before it sued Peat Marwick, Peat This Court has never considered Marwick is entitled to summary whether the discovery rule applies to judgment. As with the discovery rule, auditing malpractice claims. Assuming once HCH knew that it had been injured without deciding that it does, however, by fund mismanagement, it should have the summary judgment evidence investigated why its auditor, Peat establishes that HCH knew or should Marwick, had failed to discover or have known of its negligence claim report the mismanagement to HCH. more than two years before it filed suit. Accordingly, fraudulent concealment HCH relies on the same wrongfully pleadings do not rescue HCH's DTPA [**15] caused injury asserted in the claim. III. Accrual of HCH's DTPA cause of action to claim that Peat Negligence Claim Marwick was negligent. And as we have mentioned, the evidence conclusively

18 See Computer Assocs. Int'l, establishes that HCH knew of the Inc. v. Altai, Inc. , 918 S.W.2d 453, reserve fund's mismanagement, at least, 455 (Tex. 1995) ; Estate of no later than when it filed the first suit Stonecipher v. Estate of Butts , 591 against First Interstate, February 1, S.W.2d 806, 809 (Tex. 1979) . 1993. Consequently, HCH's negligence Under Section 16.003 of the Civil claim is also time-barred. Furthermore, Practice and Remedies Code , negligence as with HCH's DTPA claims, its claims, including accounting fraudulent concealment pleadings do not malpractice, must be brought "not later rescue the negligence claim. than two years after [**14] the day the Peat Marwick has established the cause of action accrues." ^[19] Because the

affirmative defense of limitations by statute does not define or specify when conclusively showing that HCH's causes accrual occurs, we look to the common of action accrued more than two years law to determine when a cause of action before HCH filed suit. As a result, accrues. ^[20]

limitations bars HCH's claims for DTPA violations and negligence and Peat

19 Tex. Civ. Prac. & Rem. Code § Marwick is entitled to summary 16.003(a) ; see also Murphy , 964 judgment. Therefore, we reverse the S.W.2d at 270 . KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)

court of appeals' judgment and render Craig T. Enoch, Justice judgment that HCH take nothing.

Opinion delivered: March 25, 1999 Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1 st Dist.] 2005, pet. ref’d) FELIX MICHAEL KUBOSH, Appellant v. THE STATE OF TEXAS, Appellee NO. 01-04-00268-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON 177 S.W.3d 156 ; 2005 Tex. App. LEXIS 948 February 3, 2005, Opinion Issued SUBSEQUENT HISTORY: petition Kubosh, Law Offices of Paul Kubosh, for discretionary review dismd In re Houston, Tx. Kubosh, 2005 Tex. Crim. App. LEXIS 1140 (Tex. Crim. App., July 27, 2005) For Appellee: Charles A. Rosenthal, Jr., Petition for discretionary review refused District Attorney - Harris County, by In re Kubosh, 2005 Tex. Crim. App. Houston, TX; Ms. Juliane Phillips Crow, Houston, TX. LEXIS 1627 (Tex. Crim. App., Sept. 14, 2005) Motion for rehearing on petition for JUDGES: Panel consists of Justices discretionary review denied by In re Nuchia, Jennings, and Alcala. Kubosh, 2005 Tex. Crim. App. LEXIS 1846 (Tex. Crim. App., Oct. 26, 2005) OPINION BY: Elsa Alcala PRIOR HISTORY: [**1] On OPINION Appeal from the 228th District Court.

[*157] Appellant, Felix Michael Harris County, Texas. Trial Court Cause Kubosh, a surety on a bail bond No. 904739-A. executed for Gustavo Casas, Sr., challenges the trial court's final

DISPOSITION: Affirmed. judgment in favor of the State for the full amount of a $ 75,000 bond plus costs of court, which resulted from

COUNSEL: For Appellant: David A. Casas's failure to appear in court, as Furlow, Stacy L. Kelly, Thompson & required by the bail bond. In four issues, Knight L.L.P., Houston, TX; Paul Kubosh contends that the trial court Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1 st Dist.] 2005, pet. ref’d) erred by rendering judgment in favor of Kubosh filed an amended answer that the State. Kubosh contends that the bail included a general denial and two bond was invalid as a contract under "affirmative defenses authorized under affirmative defenses recognized by the TEX. R. CIV. P. 94 : failure [**3] of

consideration and legal excuse." ^[2] The Rules of Civil Procedure, and therefore, that the agreement was invalid under premise underlying Kubosh's purported Chapter 22 of the Code of Criminal "affirmative defenses" was his Procedure , ^[1] which exonerates the surety

contentions that, (1) after Casas failed to from liability if "the bond is, for any appear in court, the State failed to cause, not a valid undertaking in law. procure the Mexican government's [**2] " Kubosh also challenges the trial timely issuance of a "provisional court's failure to order civil discovery warrant," due to the Harris County concerning the bond forfeiture and the District Attorneys Office's inadequate State's extradition policies and extradition policies concerning bail- procedures. We affirm. jumping defendants, and that, (2)

although Mexican officials knew where 1 See TEX. CODE CRIM. PROC. Casas was, he could not be arrested ANN. art. 22 (Vernon Supp. 2004- without the provisional warrant. 2005).

2 Rule 94 states, Background "AFFIRMATIVE DEFENSES[:] In pleading to a preceding Casas was charged by indictment pleading, a party shall set forth with felony possession of more than affirmatively accord and 2,000 pounds of marihuana. Kubosh, a satisfaction, arbitration and award, licensed bail bondsman, and Raul assumption of risk, contributory Ruvalcaba executed a bail bond in the negligence, discharge in amount of $ 75,000, as sureties on the bankruptcy, duress, estoppel, bond for Casas, the principal on the failure of consideration, fraud, bond, to secure Casas's [*158] release illegality, injury by fellow servant, from custody pending resolution of the laches, license, payment, release, charges. Casas failed to appear and res judicata, statute of frauds, answer the charge against him as statute of limitations, waiver, and required, and the State moved for bond any other matter constituting an forfeiture. The trial court signed a avoidance or affirmative defense . . judgment of forfeiture (judgment nisi) ." for the full amount of the bond plus costs of court, and an alias capias was Kubosh [**4] gave the State notice issued to arrest Casas. of intent to take the deposition of a

Harris County District Attorney's office Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1 st Dist.] 2005, pet. ref’d) employee, Kim Bryant, but the State 3 Neither the principal on the moved to quash the deposition and for bond, Gustavo Casas Sr., nor protection. The State also filed a motion cosurety, Raul Ruvalcaba, are to strike Kubosh's amended answer. parties to this appeal, although they Kubosh subsequently filed applications were parties to the underlying for subpoenas for witnesses and proceedings. production of documents.

Exoneration From Liability Upon When the trial court began the bond- Forfeiture forfeiture bench trial on November 19, 2003, the State offered a certified copy Kubosh contends that he is of the judgment nisi. Kubosh objected to exonerated from liability for Casas's admitting this evidence by asserting that failure to appear based on Chapter 22 of the State had not complied with his the Code of Criminal Procedure , which discovery requests. The trial was exonerates the defendant and his sureties continued until December. In a hearing if "the bond is, for any cause, not a valid held on December 18, 2003, the trial undertaking in law." TEX. CODE CRIM. court ruled that Kubosh's motions to PROC. ANN. art. 22.13(a)(1) (Vernon compel discovery were untimely, and Supp. 2004-2005). Chapter 22 allows a that the discovery he requested was surety to offer proof on the affirmative irrelevant. defense of exoneration to avoid liability

for a bail bond under the following On December 22, 2003, the State circumstances only: again presented certified copies of the judgment nisi and the bail bond executed

[*159] (a) The following by Kubosh, Casas, and Raul Ruvalcaba. [**6] causes, and no other, After the trial court admitted the State's will exonerate the defendant exhibits over Kubosh's objections that and his sureties, if any, from the State had failed to comply with his liability upon the forfeiture discovery motions, the State rested. taken: Kubosh attempted to offer exhibits related to the State's extradition policies, 1. That the bond is, for any [**5] but the trial court ruled that the cause, not a valid and binding exhibits were inadmissible. The trial undertaking in law. If it be court ruled in favor of the State and valid and binding as to the signed a final judgment of forfeiture principal, and one or more of against Kubosh, Casas, and Ruvalcaba, his sureties, if any, they shall jointly and severally, on the full amount not be exonerated from of the bond plus costs of court. ^[3]

liability because of its being invalid and not binding as to another surety or sureties, if

Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1 st Dist.] 2005, pet. ref’d) any. If it be invalid and not indictment or information, binding as to the principal, and the prosecution has not each of the sureties, if any, been continued by order of shall be exonerated from the court. liability. If it be valid and binding as to the principal, but not so as to the sureties, if TEX. CODE CRIM. PROC. ANN. art. 22.13(a) (Vernon Supp. 2004-2005); see any, the principal shall not be exonerated, but the sureties, if Spradlin v. State, 100 S.W.3d 372, 379 any, shall be. (Tex. App.--Houston[1st Dist.] 2002, no

pet.) . 2. The death of the principal before the forfeiture Article 22.13(a) 's four enumerated was taken. causes provide the sole bases by which a

defendant and his sureties may be 3. The sickness of the exonerated upon forfeiture of a bond. principal or some See id. (The following causes, and no uncontrollable circumstance other . . . .) (emphasis added); Lyles v. which prevented his State, 587 S.W.2d 717, 717 (Tex. Crim. appearance at court, and it App. 1979) ; Rodriguez v. State, 673 must, in every such case, be S.W.2d 635, 636 (Tex. App.--San shown that his failure to Antonio 1984, no writ) . appear arose from no fault on his part. The causes When asked by the trial court mentioned in this subdivision whether he had a binding agreement shall not be deemed sufficient with Casas, or whether he would be to exonerate the principal and presenting any evidence that they did not his sureties, if any, unless have a binding agreement, Kubosh such principal appear before responded, "I'm not presenting any final judgment on the bond to evidence on that issue, your honor. [**8] " When asked further if he would answer the accusation against [**7] him, or show sufficient be presenting evidence on any of the cause for not so appearing. three other affirmative defenses

available under article 22.13 , Kubosh 4. Failure to present an responded, "no." We conclude that indictment or information at Kubosh presented no evidence of an the first term of the court affirmative defense that would exonerate which may be held after the himself from liability upon the forfeiture principal has been admitted to of the bond under Chapter 22 of the bail, in case where the party Code of Criminal Procedure . was bound over before Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1 st Dist.] 2005, pet. ref’d) Although Kubosh does not dispute release the principal because of that the State met the statutory contractual consideration between requirements of the judgment nisi, he the State and the surety, but claims that he asserted defenses of because of constitutional and failure of consideration and legal excuse, statutory rights of the principal. Id .; in accordance with rule 94 of the Rules TEX. CONST. art. I, § 11 ; TEX. of Civil Procedure , and that, because of CODE CRIM. PROC. ANN. art. 1.07 (Vernon 1977). these affirmative defenses, the bond is "not a valid undertaking in law" under

After a forfeiture has been declared article 22.13(a)(1) of the Code of on a bond, the case is placed on the civil Criminal Procedure . TEX. CODE docket with the State of Texas as the CRIM. PROC. ANN. art. 22.13(a)(1) [**10] plaintiff, and the defendant and (Vernon Supp. 2004-2005). Kubosh any sureties as defendants. TEX. CODE further contends that civil law of CRIM. PROC. ANN. art. 22.10 (Vernon contract applies ^[4] [*160] because the Supp. 2004-2005). A bond forfeiture bail bond is a three-way contractual action is a criminal proceeding that agreement among the State, the principal utilizes the Rules of Civil Procedure. Id . defendant, and the bail-bond surety, (stating that a bond-forfeiture case is which requires that the State take governed by same rules governing other reasonably timely steps to secure the civil suits); State v. Sellers, 790 S.W.2d issuance of provisional [**9] warrants 316, 321 (Tex. Crim. App. 1990) . The for the arrest of bond-skipping civil rules apply procedurally, however, defendants who flee the country. and not substantively. See Sellers, 790 S.W.2d at 321 . Article 22.10 does not

4 We disagree with Kubosh's transform a bond forfeiture proceeding contention that the State is a party from a criminal case into "a civil case." to the bail-bond contract. The bond Sellers, 790 S.W.2d at 321 . is "a written undertaking entered "It is well-settled that the State's case into by the defendant and his in a bond-forfeiture proceeding consists sureties. . ." TEX. CODE CRIM. of the bond and the judicial declaration PROC. ANN. art. 17.02 (Vernon of the forfeiture of the bond, which is 1977); Rodriguez v. State, 673 the judgment nisi. Once this has been S.W.2d 635, 640 (Tex. App.--San established, the defendant must then Antonio 1984, no writ) . The prove that one of the elements has not sureties agree to assume the bond been complied with." Tocher v. State, obligation in return for 517 S.W.2d 299, 301 (Tex. Crim. App. consideration, usually a fee, paid 1975) ; Spradlin, 100 S.W.3d at 377 ; by the principal. Rodriguez, 673 McCluskey v. State, 64 S.W.3d 621, 623 S.W.2d at 640 . The State does not Kubosh v. State, 177 S.W.3d 156 (Tex. App.-Houston [1 st Dist.] 2005, pet. ref’d) (Tex. App.--Houston [**11] [1st Dist.] Kubosh's complaints concerning 2001, no pet.) . discovery all pertain to his contention

that [**12] the contract was invalid By presenting the bond and the under defenses recognized by the Civil judgment nisi to the trial court, the State Rules of Procedure, which we have made a prima facie case for forfeiture of rejected above. A trial court does not err the bond. See Alvarez v. State, 861 by excluding evidence if the evidence S.W.2d 878, 881 (Tex. Crim. App. 1992) . does not show that the accused is The burden then shifted to Kubosh, who entitled to the defense to which it had the burden to either (1) prove that applies. Reed v. State, 794 S.W.2d 806, the State did not satisfy one of the 809-11 (Tex. App.--Houston [14th Dist.] statutory requirements of the judgment 1990, pet. ref'd) . Thus, any discovery nisi, or (2) raise a fact issue on his related to equitable affirmative defenses affirmative defense of exoneration. Id. not recognized under article 22.13 at 881 ; Hill v. State, 955 S.W.2d 96, [*161] is irrelevant. See In re Am. 100-01 (Tex. Crim. App 1997) . Optical Corp., 988 S.W.2d 711, 713, 41 We conclude that the defenses listed Tex. Sup. Ct. J. 1146 (Tex. 1998) in rule 94 of the Texas Rules of Civil (holding that discovery requests must be Procedure do not apply to a bond reasonably tailored to include only forfeiture proceeding, and thus hold that matters relevant to the case). the trial court did not err by finding that We overrule Kubosh's issues Kubosh was liable for the bail bond. concerning the trial court's discovery We overrule Kubosh's first issue. rulings. State's Failure to Comply with Conclusion Discovery We affirm the judgment of the trial In his remaining issues, Kubosh court. challenges the State's alleged failure to Elsa Alcala comply with his discovery requests Justice concerning his claimed "affirmative defenses" of failure of consideration and legal excuse.

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) VERNON P. LYLES, et. al, Appellant v. THE STATE OF TEXAS, Appellee No. 1302-91

COURT OF CRIMINAL APPEALS OF TEXAS

850 S.W.2d 497 ; 1993 Tex. Crim. App. LEXIS 29

February 3, 1993, Delivered SUBSEQUENT HISTORY: [**1] As Corrected March 8, 1993. [*498] OPINION ON STATE'S

PETITION FOR DISCRETIONARY

PRIOR HISTORY: Petition for REVIEW Discretionary Review from the Tenth

This is a criminal bail bond forfeiture Court of Appeals. (Robertson County) case. The State petitioned this Court for review on two grounds, one of which we granted in order to determine the

COUNSEL: For Appellant: Carolyn constitutionality of TEX. CODE CRIM. Findley Price, Arlington, Tx. G. P. (Pat) PROC. ANN. Art. 22.16(a) . Although we Monks, Houston, Tx. find 22.16(a) unconstitutional because it utilizes the provisions of TEX. CODE

For State: Jimmie McCullough, C. A., CRIM. PROC. ANN. Art.22.16(c) , we Franklin, Tx. Robert Huttash, State's will reverse the Court of Appeals on Attorney, Austin, Tx. other grounds. Initially, we will address whether JUDGES: En Banc. White, Judge, subsection (a) is constitutional since it Clinton, Judge concurring opinion, was a ground on which we initially Campbell, Judge joined by Maloney, granted review. However, the ultimate Judge concurring in part & dissenting in disposition of this case will hinge on our part, Baird, Judge dissenting opinion prior decision in Makeig [**2] v. State, 830 S.W.2d 956 (Tex. Crim. App. 1992) ,

OPINION BY:

WHITE adopting the decision and reasoning of the Court of Appeals in Makeig v. State,

OPINION

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) 802 S.W.2d 59 (Tex.App. - Amarillo set by Subsection (c) of this article, the 1990). We will therefore address Article court shall, on written motion, remit to 22.16(a) and then resolve the instant the surety the amount of the bond after case. deducting the costs of court, any

reasonable costs to the county for the This matter arose out of a bond return of the principal, and the interest forfeiture in the Robertson County accrued on the bond amount as provided Court. Vernon P. Lyles, a professional by Subsection (e) of this article if: bondsman, was the surety on a $ 1500 bond with Thomas Earl Marks as its (1) the principal is incarcerated in the defendant-principal. Marks failed to county in which the prosecution is appear in court on December 7, 1989, on pending; a misdemeanor property offense and

. . . judgment nisi was entered. Marks was Art. 22.16(c) provides: rearrested on December 16 and placed in the Robertson County jail. On February

(c) A final judgment may be entered 7, 1990, final judgment was entered by against a bond not earlier than: the trial court. Respondent filed his (1) nine months after the date the motion to remit the full amount of the forfeiture was entered, if the offense for bond on March 6, 1990, along with a which the bond was given is a motion to vacate or modify the final misdemeanor; or judgment entered against the bond. The (2) 18 months after the date the trial court denied his motions. forfeiture was entered, if the offense for Respondent Lyles appealed to the which the bond was given is a felony. Tenth Court of Appeals raising six Article 22.16(a) is at issue because it points of error. [*499] The Court of is dependent upon timeframes provided Appeals sustained the three points which for in 22.16(c). Article 22.16(c) has been addressed remittitur of the bond and held unconstitutional by this Court in therefore reversed the judgment of the State v. Matyastik, [**4] 811 S.W.2d trial court in a published opinion. Lyles 102 (Tex.Cr.App. 1991) and Armadillo v. State, [**3] 814 S.W.2d 411 Bail Bonds v. State, 802 S.W.2d 237 (Tex.App.-Waco 1991). The question (Tex.Cr.App. 1990) . raised in the Court of Appeals and in this Court is the constitutionality of Art.

Article 22.16(c) was first addressed 22.16(a). by this Court in Armadillo Bail Bonds v. State, 802 S.W.2d at 237 . Our analysis in

Art. 22.16(a) provides in pertinent Armadillo Bail Bonds began by part: recognizing that a violation of the (a) After forfeiture of a bond and separation of powers provision of the before the expiration of the time limits Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) State Constitution occurs when one Matyastik, 811 S.W.2d at 104 . This issue branch of government unduly interferes arose because Article 22.16(a) refers to with another branch's exercise of its 22.16(c) in the body of the statute. Art. constitutionally assigned powers. Id., at 22.16(a) provides in pertinent part: 239 . Since the ability to enter final

After forfeiture of a bond and before judgments is a "core power" of the the expiration of the time limits set by judiciary, we found that the legislature Subsection (c) of this article, the court unduly interfered with the exercise of shall . . . (emphasis added). this power by passing a statute which [*500] In our analysis in Matyastik, suspended the entrance of a final we were careful to note that if one part judgment for up to a year and a half. Id., of a statute is held unconstitutional, "the at 241 . Thus, the statute was found to be remainder of the statute must be a violation of the separation of powers sustained if it is complete in itself [**6] provision since it allowed the legislature and capable of being executed in to usurp a judicial function. Id. accordance with the intent wholly In State v. Matyastik, this Court independent of that which has been applied the reasoning announced in rejected." Matyastik, 811 S.W.2d at 104 , Armadillo Bail Bonds to find section quoting Tussey v. State, 494 S.W.2d 866, (c)(1) of the statute unconstitutional. 870 (Tex.Cr.App. 1973) . However, this State v. Matyastik, 811 S.W.2d at 102 . Court found that subsection (a) is Where section (c)(2) addresses felonies, contingent upon the time limitations set section (c)(1) of the statute [**5] forth in subsection (c). Matyastik, 811 prohibits the court from entering final S.W.2d at 104 . Therefore, we held that judgment in a misdemeanor case until the portion of subsection (a) that utilizes nine months after forfeiture. Because of subsection (c) is invalid under Article 2, the similar time requirement, (c)(1) was Section 1 of the Texas Constitution since also found to be a legislatively imposed subsection (a) cannot be executed or statutory restraint on a trial court's have any effect without utilizing the ability to enter final judgments. Id., at provisions of subsection (c). Id. 104 . The reasoning in Armadillo Bail Bonds was therefore extended to also

1 After the holdings in Armadillo hold section (c)(1) unconstitutional as a and Matyastik, Article 22.16(c) violation of the separation of powers was considered unconstitutional in provision of the State Constitution. Id. its entirety. Some confusion has Having found 22.16(c) arisen on this issue by our adoption unconstitutional ^[1] , this court then of the Court of Appeals decision in considered in Matyastik whether Art. Makeig v. State, 802 S.W.2d 59 (Tex.App. - Amarillo 1990). In the 22.16(a) also interfered with the court's exercise of the judicial function. State v. opinion, there is a reference that

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) the 22.16(c) timeframes must language ". . . and before the expire before 22.16(d) applies. We expiration of the time limits set by held 22.16(c) unconstitutional in Subsection (c) of this article . . ." Armadillo and Matyastik and [**8] therefore 22.16(c) should not 3 In his dissent, Judge Baird control the applicability of disagrees that Matyastik held that 22.16(d). It was not our intention to remittitur is now discretionary with reverse these decisions by adopting the court at anytime prior to entry Makeig. of a final judgment. Instead, he

believes Matyastik actually stated [**7] This Court is now asked to that mandatory, rather than determine whether subsection (a) is to be discretionary, remittitur may be read without reference to subsection (c) done at anytime before entry of a ^[2] , or, alternatively, find the entire final judgement. The exact subsection invalid. We believe that the language in Matyastik was as latter is the correct interpretation. As follows: was noted in Matyastik, subsection (a) is contingent upon the time limitations "Because subsection (a) cannot established in subsection (c). Subsection be executed or have any effect (a) is dependent upon subsection (c) to without utilizing the provisions of establish the timeframes for mandatory subsection (c), we hold that the remittitur. Without these deadlines, portion of Art. 22.16(a), remittitur of a forfeited bond would be V.A.C.C.P. , utilizing subsection (c) mandatory at any time after the is invalid under Article 2, § 1 of the forfeiture because there is no "judgment" Texas Constitution. Thus, remittitur provision in subsection (a). now may be done anytime between Consequently, subsection (a) cannot be forfeiture and entry of a final executed or have any effect without the judgment." invalid provisions. Matyastik, 811

Respectfully, we would point S.W.2d at 104 . Subsection (a) is thus out that the term "mandatory" is void. We therefore hold that mandatory not used in the passage. Since remittitur provisions of 22.16(a) are no remittitur was mandatory by virtue longer valid. Remittitur may instead be of the time limitations in done at the trial court's discretion at subsection (c), it follows that it is anytime before entry of a final no longer mandatory if the time judgment. ^[3] TEX. CODE CRIM. PROC. limitations are eliminated. This ANN. Art. 22.16(d) . proposition is further supported by the use of the discretionary

2 More specifically in Article language "remittitur now may be 22.16(a), the reference made by the done." In the absence of mandatory Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) provisions, we believe that the reference to subsection [*501] (c), discretionary remittitur as found in an unconstitutional provision. Article 22.16(d) is the logical Alternatively, 22.16(d), even if read successor. without reference to subsection (c),

provides for entry of final judgment. [**9] Additional support for this Given this distinction, it is obvious that holding is found in Article 22.16(d). 22.16(d) should survive even though Article 22.16(d) permits a trial court, in 22.16(a) is invalid. its discretion, to remit a bond before the entry of a final judgment. If subsection Article 22.16(c) violates the (a) is to be read without reference to the separation of powers provision of the time limitations of subsection (c), the Texas Constitution because it imposes trial court would no longer have this time limits which prevent a court from discretion. The trial court would have to entering a final judgment. Although remit the amount of the bond upon 22.16(a) does not provide for entry of a written motion of the surety. Such a judgment of any kind, a reading of reading would render subsection (d) 22.16(a) to provide for mandatory impotent. When construing statutes that remittitur at anytime prior to final judgement would violate the separation appear to be in conflict, the two should be harmonized where possible. TEX. of powers provision. Such a reading GOV'T CODE ANN § 311.025(b) ; Ex would statutorily mandate a trial court to Parte Choice, 828 S.W.2d 5, 7 remit a bond at anytime prior to entry of (Tex.Cr.App. 1992) ; Lindsey v. State, a final judgment, thereby legislatively 760 S.W.2d 649, 654 (Tex.Cr.App. removing a trial court's discretion. 1988) ; Stanfield v. State, 718 S.W.2d However, enforcement of 22.16(d) does 734, 736 (Tex.Cr.App. 1986) . It would not violate the separation of powers therefore be improper to interpret provision since it leaves discretion in the 22.16(a) in a manner which would trial court to remit a forfeited bond at remove the discretion given to the trial anytime prior to entry of a final judgment. court in Article 22.16(d).

Furthermore, a most important We pause here to answer Judge distinction can be made between Campbell's concerns. He argues [**11] 22.16(a) and 22.16(c) which in his dissent that if 22.16(a) is invalid demonstrates that discretionary because of the reference to Article remittitur should continue. Contrary to 22.16(c), 22.16(d) must also be invalid the position advocated by the dissents, because it too utilizes 22.16(c). We subsection (a) does not have a provision would distinguish 22.16(d) by pointing for any kind of judgment [**10] to be out that, unlike 22.16(a), 22.16(d) is a entered. Final judgment under discretionary provision. Article 22.16(d) provides: subsection (a) can only be entered via

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) After the expiration of the time limits In our view, Article 22.16(a) cannot set by Subsection (c) of this article and have any effect without utilizing the before the entry of a final judgment invalid provisions of 22.16(c). We against the bond, the court in its therefore hold that Article 22.16(a) is discretion may remit to the surety all or void; however, this subsection is not part of the amount of the bond after controlling in the disposition of the case deducting the costs of court, any at bar. reasonable costs to the court for the

We now turn to the instant case. The return of the principal, and the interest facts before us in this matter are almost accrued on the bond amount as provided identical to those in Makeig v. State, 830 by Subsection (e) of this article. S.W.2d 956 (Tex.Crim.App. 1992) , Unlike 22.16(a), 22.16(d) can be read adopting opinion 802 S.W.2d 59 absent the reference to 22.16(c) without (Tex.App. - Amarillo 1990). In Makeig, a separation of powers problem that is a judgment nisi was entered on June 19, encountered with 22.16(a). When 1989 after the principal failed to appear 22.16(d) is so read, remittitur remains in court on a felony offense. Id. at 60 . discretionary with the court anytime Final judgment was then entered approximately three months later. before final judgment. It does not become mandatory at any time after [**13] Id. at 61 . The appellant made a forfeiture as it does when 22.16(a) is motion for remittitur of a $ 50,000 bond read without reference to the 22.16(c) approximately one month after final timeframes. judgment was entered. Id. at 61 . The

trial court granted the appellant's motion As we have said previously in this and returned $ 25,000, less costs of suit, opinion, subsection (a) does not provide even though the motion was made after for any type of judgment [**12] to be final judgment. Id. at 61 . entered. Consequently, mandatory remittitur could continue in perpetuity if In reviewing the remittitur, the Court the subsection (c) timeframes are not of Appeals held that the trial court did not err by entering final judgment before utilized. If any of the five conditions under 22.16(a)(1)-(5) (principal the expiration of the time frames in incarcerated in county in which the Article 22.16(c) since this subsection of prosecution is pending, principal the statute had previously been held deceased, etc.) are ever met, the trial unconstitutional by this court. Id. at 61- court would be forced to remit the bond 62 . Appellant also argued that the trial no matter when the condition is court erred by failing to apply the satisfied. Given that mandatory discretionary remittitur portion of the remittitur was originally intended to statute, Article 22.16(d). Id. at [*502] occur within a limited time, we do not 62 . The Court of Appeals correctly recognized that 22.16(d) directs believe this was the intended result.

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) discretionary remittitur when final remit the $ 1,500 bond in the instant judgment has not been entered. Id. Since case was an abuse of this discretion. final judgment had already been entered,

In determining whether there has the Court of Appeals held that 22.16(d) been an [**15] abuse of discretion, it did not apply. Id. must be determined if the court acted The Court of Appeals found support without reference to any guiding rules in two areas for the trial court's decision and principles, or, in other words, whether the court acted arbitrarily or to partially remit the bond. First, the Court of Appeals held that since the unreasonably. Makeig, 802 S.W.2d at motion for remittitur had [**14] been 62 ; Montgomery v. State, 810 S.W.2d made within 30 days of the judgment, it 372, 380 (Tex.Crim.App. 1990) . Article was within the trial court's plenary 22.17 contains no guidelines for the power to reform the judgment. exercise of the court's discretion. Tex.R.Civ.Pro. 329(b). Additionally, the Makeig, 802 S.W.2d at 62 . Court of Appeals held that the power to

An abuse of discretion may exist partially remit the bond was also found when there is a showing of sufficient in Article 22.17, TEX. CODE CRIM. cause for the accused's failure to PROC. ANN. This article provides for a comply. See Makeig, supra at 62 . two year special bill of review that However, mere subsequent appearance enables a surety to request, on equitable by the accused is not sufficient cause for grounds, the reform of a final judgment complete remission of the forfeiture. Id., and remittitur of the bond amount. at 62 . Sufficient cause is generally a Under this Article, the decision to grant showing that the party did not break his or deny the bill is entirely within the recognizance intentionally with the discretion of the trial court. The request design of evading justice, or without a may be granted in whole or in part. Art. sufficient cause or reasonable excuse, 22.17(a). such as unavoidable accident or In the instant case, final judgment inevitable necessity preventing his appearance. Id., at 62-63 . Although was entered on February 7, 1990. Appellant did not make a motion for resulting extreme hardship on the surety remittitur until March 6, 1990. Since may be considered, a balancing final judgment had already been entered, consideration may be whether discretionary remittitur under article compensation was received by the surety 22.16(d) did not apply. However, the for taking the risk. Id., at 62-63 . While court's decision to remit part of the bond not seeking to punish the surety for was within its power under [**16] the principal's failure to appear, Tex.R.Civ.Pro 329b and Art. 22.17 Tex. the law does contemplate that such Code Crim. Pro. We must now noncompliance will result in forfeiture of the bond amount. Id. These factors, determine whether the decision to not

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) material to the court's decision before charge. Under these circumstances, we final judgment, continue to be pertinent cannot say that it was an abuse of while the judgment is subject to the discretion for the trial court to deny court's plenary powers of reformation. appellant's motion to remit the $ 1,500 Id., at 63 . bond.

In Makeig, the Court of Appeals Since the partial remittitur was found that there had not been a showing clearly within the power of the court and there was no abuse of discretion in the of sufficient cause or reasonable excuse for the accused's absence. Makeig, exercise of this power, the judgment of supra at 63 . Since the trial court the Court of Appeals is reversed and the remitted $ 25,000, less costs, of a $ judgment of the trial court is affirmed. 50,000 bond, the Court of Appeals could On the issue presented for our review, not find an abuse of discretion. Id. In we hold Article 22.16(a) doing so, the Court of Appeals found the unconstitutional because it relies on the following facts important: 1) the trial invalid provisions of 22.16(c). court had remitted more than seven

WHITE, Judge times the surety's actual costs ($ 3,475) (Delivered February 3, 1993) in attempting to locate her client; 2) there had been no showing of sufficient En Banc cause for the principal's absence; 3) the principal had not been apprehended

CONCUR

BY: CLINTON; through the efforts of the surety; and, 4) CAMPBELL (In Part) the surety had received compensation for the risk it endured under the bond.

CONCUR

Id.

CONCURRING OPINION ON

In the instant case, the

STATE'S

PETITION FOR appellant/surety has not demonstrated

DISCRETIONARY REVIEW

that any costs were incurred in Because Article 22.16(c)(2), attempting to locate [**17] the V.A.A.C.P., "requires that the Judiciary principal. There is no evidence from the refrain from exercising [**18] a part of record that there was sufficient cause for its core power for a period of a year and the principal's absence on appearance a half," and thus "unduly interferes with day. Additionally, there is no evidence the Judiciary's effective exercise of its that [*503] the principal was constitutionally assigned power," the apprehended as the result of the efforts Court held it invalid under Article II, § of the surety. While there is no evidence 1, Constitution of The State of Texas , in of the amount of the bonding fee Armadillo Bail Bonds v. State, 802 assessed by surety against the principal, it is unlikely that it was done free of

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) S.W.2d 237, at 241 (Tex.Cr.App. 1990) . court shall . . . ." First, he recalled the ^[1]

settled rule that "if one part of a statute is held unconstitutional, the remainder of

1 Conforming to procedure the statute continues to be valid;" he prescribed in germane provisions then noted that "subsection (a) is of Chapter Twentytwo, the trial contingent upon the time limitations court entered judgment nisi, surety established in subsection (c), and thus answered to show cause, the court has no effect without the invalid found no good cause and made the provisions." Drawing from a recent judgment final -- all prior to opinion of this Court that "the remainder expiration of eighteen months; of the statute must be sustained if it is surety filed a motion for new trial complete within itself and capable of relying on the bar in Article being executed in accordance with the 22.16(c)(2), and the trial court intent wholly independent of that which denied relief. The Dallas Court of has been rejected," Judge Miller Appeals affirmed the judgment on concluded [**20] for the Court: the ground that the prohibition is invalid under Article II, § 1. ". . . Because subsection (a) cannot be Armadillo Bail Bonds, supra, at executed or have any effect without 238 . As reported in the text above, utilizing the provisions of subsection (c), this Court agreed and affirmed the we hold that the portion of Art. 22.16(a), judgment of the court of appeals. V.A.C.C.P. , utilizing subsection (c) is

invalid under article 2, § 1 of the Texas Because Article 22.16(c)(1), Constitution. [note omitted]. Thus, V.A.C.C.P. , "prohibits [**19] the court remittitur now may be done anytime from entering a final judgment in such a between forfeiture and entry of a final case for a nine month period," the Court judgment." extended the reasoning and holding in Armadillo Bail Bonds, supra , to

Id., at 164 . ^[3] While it is not free from misdemeanor cases, and held subsection doubt, since the Court announced at the (c) (1) unconstitutional as well, in State outset [*504] that it was finding v. Matyastik, 811 S.W.2d 102, at 104 "Article 22.16(a) and (c)(1) ^[2] Turning (Tex.Cr.App. 1991) . to unconstitutional," id., at 102 , we may determine "whether the same is true of take the underscored sentence to mean Art. 22.16(a)," for the Court, Judge "discretionary" remittitur, taking into Miller underscored the pertinent account whether one or more statutory language under consideration, enumerated conditions in the remainder viz: "(a) After forfeiture of bond and of subsection (a) is satisfied. See also before the expiration of the time limits Article 22.13, V.A.C.C.P. set by Subsection (c) of this article, the Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) That is to say, the court of 2 As in Armadillo Bail Bonds so appeals erred in upholding also in State v. Matyastik, all constitutionality of the mandatory proceedings from forfeiture of bail remittitur provision in subsection to grant of remittitur occurred (a), and the trial judge erred in the within the time limits set by belief that the court was statutorily subsection (c). Unlike the outcome mandated to order remittitur in full before expiration of the nine month of proceedings in Armadillo Bail Bonds, however, in State v. limitation. Matyastik, supra , after the trial

Because we reviewed the "decision" court rendered judgment nisi, later of the court of appeals in Makeig v. made the judgment final and surety State, 802 S.W.2d 59 (Tex.App. -- moved for remittitur relying in part Amarillo 1990), found its "reasoning is on Article 22.16(a)(1), the trial sound" and "adopt[ed] the opinion as our court ordered remittitur in full; the own without further comment" in State filed a motion to vacate the Makeig v. State, 830 S.W.2d 956 order which the trial court denied. (Tex.Cr.App. 1992) , perhaps without The Waco Court of Appeals found noticing that the Amarillo Court of Article 22.16 "constitutional in its appeals did not have whatever guidance entirety," and affirmed the [**22] might have been provided by our judgment below. Matyastik, supra, opinion in State v. Matyastik, supra , as at 102-103 . the majority here seems to suggest in its All emphasis here and opinion at 3, n. 1, we may well have throughout this opinion is mine "rushed to judgment." For reasons unless otherwise indicated. developed in the margin, however, my

[**21] view is that the Makeig court of appeals 3 In his separate opinion Judge did not implicate validity or application Campbell characterizes our holding of Article 22.16(d) in any manner inconsistent with our prior cases, as stated "cryptically," following

including Matyastik. ^[4] "somewhat oblique discussion." Slip opinion at 2 and 3, respectively. My own view is that 4 In Makeig v. State, supra , the whatever ambiguity may be seen in surety on a $ 50,000 bond was the formulation is removed by the certain enough that the principal judgment of this Court, viz: would not appear for a scheduled

hearing that he spent some $ 3,000 "The judgment of the court of to find and surrender him under a appeals [affirming that of the trial warrant pursuant to Articles 17.16- court] is reversed and the remittitur 17.19, V.A.C.C.P. , but was not order of the trial court is vacated." Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) successful; the trial court forfeited the time limits set by Subsection bail, entered judgment nisi in June (c) and before entry of final and made the judgment final on judgment against the bond." The September 8; principal was later court of appeals overruled that arrested in another state and surety point, reasoning that since eighteen paid the costs to transport back to months had not expired and final the county of prosecution judgment had already been entered before the remittitur hearing, September 21; principal plead guilty and was sentenced to ten therefore, "by their terms, years confinement; on October 5, subsections (d) and (e) were not surety moved for mandatory applicable to the present remittitur after forfeiture in full, circumstance, and the court's less costs and interest pursuant to actions cannot be judged by their Article 22.16(a)(1) and (2); on provisions." Id., at 62 . November 2, the trial court granted

Fourth, and alternatively, in partial remittitur in the sum of $ abusing its discretion by refusing to 25,000, less costs of suit. Id., at 60- order sufficient remittitur. The 61 . court of appeal found that neither On appeal, as well as point of subsections (a) or (d) applied, and error two claiming the bond was overruled that point for reasons invalid, surety contended the trial dehors the statute, viz: the trial court erred in three other court retained "plenary power to particulars: reform its judgment" under

Tex.R.Civ.Pro. 329b (a) , (e) and First, in entering final judgment (g) , and the motion or remittitur earlier than eighteen months after being filed timely may be treated forfeiture, on impliedly finding as a special bill of review under Article 22.16(c)(2) unconstitutional Article 22.17, V.A.A.C.P.; on on the strength of Armadillo Bail either basis, the trial court did not Bonds v. State, 772 S.W.2d 193 abuse its discretion. Id., at 62-63 . (Tex.App. -- Dallas 1989). The court of appeals overruled that Therefore, in affirming the point on the basis of our decision in judgment below the court of Armadillo Bails Bonds, supra. Id., appeals did not treat the at 61-62 . constitutional viability of Article

22.16(d) and (e), although the State Third, in refusing to remit a took the position both are invalid portion of forfeited bail in (Appellee's Brief on PDR, at 2). accordance with Article 22.16(d) and (e), i.e., "after the expiration of

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) [**23] Therefore, as I understand For those reasons I join the judgment the legal consequences of those three of the Court. decisions of this Court, the following

CLINTON, Judge parts of Article 22.16 have been DELIVERED: February 3, 1993 declared unconstitutional: all but the enumerated conditions in subsection (a);

EN BANC

^[5] all of subsection (c); the portion of subsection (d) reading "After the DISSENT BY: CAMPBELL (In Part); expiration of the time limits set by BAIRD Subsection (c) of this article and . . . ."

DISSENT

5 That part of the qualifying condition reading "After forfeiture

CONCURRING AND DISSENTING

of a bond" is not included in the

OPINION ON STATE'S PETITION

language declared unconstitutional

FOR DISCRETIONARY REVIEW

in Matyastik is of no practical

CAMPBELL, J.

moment. The issue of remittitur We granted review of this cause, cannot arise until after bail is pursuant to Texas Rule of Appellate forfeited. See, e.g., Articles 22.01, Procedure 200(c)(1), to determine 22.02, 22.10, 22.11, 22.125 and whether the court of appeals erred in 22.14. holding that the trial court erred in Accordingly, before entry of final refusing to remit the full amount of a judgment the trial court in its discretion bond to the surety. I agree with the may remit "all or part of the amount of majority's conclusion that the court of the bond," after making appropriate appeals erred, but I disagree completely deductions prescribed by statute. Article with the majority's reasoning. 22.16(d) and (e). I first review the relevant facts. [*505] In the instant cause, Thomas Earl Marks, charged in however, appellant did not move for Robertson County with a misdemeanor, remittitur until after the judgment nisi failed to appear for trial on December 7, [**24] was made final. In this situation 1989. On that date the trial court alternative remedies noticed by the court rendered judgment nisi for the State and of appeals in Makeig v. State become against Marks and his surety, Vernon available, and the majority opinion Lyles, jointly and severally, in the properly addresses them and ultimately amount [**25] of Marks' bond. On concludes the trial court did not abuse its December 16, 1989, Marks was re- discretion in refusing remittitur. arrested and placed in the Robertson County Jail. On February 7, 1990, the

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) trial court rendered final judgment remained an effective statute except for against the bond. On March 6, 1990, its reference to subsection (c). The court Lyles filed a motion to modify or vacate of appeals was surely wrong, however, the final judgment and a second motion when it concluded that Lyles was for remittitur of the full amount of the entitled to remittitur even though he bond under Texas Code of Criminal filed his motion for remittitur after the Procedure article 22.16(a) . The trial trial court rendered final judgment. court denied both motions.

Article 22.16 provides in relevant The Tenth Court of Appeals part: subsequently reversed, holding that the (a) After forfeiture of a bond and trial court "should have vacated or before the expiration of the time limits modified its February 7, 1990, [final] set by Subsection (c) of this article, the judgment and granted remittitur in court shall, on written motion, remit to accordance with art. 22.16(a)." Lyles v. the surety the amount of the bond . . . if: State, 814 S.W.2d 411, 412 (Tex.App.-- (1) the principal is incarcerated in the Waco 1991). The court of appeals, citing county in which the prosecution is State v. Matyastik, 811 S.W.2d 102 pending; (Tex.Cr.App. 1991) , reasoned first that, except for its reference to subsection (c), * * * Article 22.16(a) remained an effective

(c) A final judgment may be entered statute requiring remittitur if requested against a bond not earlier than: before final judgment. The court (1) nine months after the date the reasoned second that Lyles was entitled forfeiture was entered, if the offense to remittitur under Article 22.16(a) [**27] for which the bond was given is "even though (he) presented his request a misdemeanor; or for remittitur after final judgment because (1) his response to the (State's)

(2) 18 months after the date the motion for summary judgment made forfeiture was entered, if the offense for [**26] such a request and (2) at the time which the bond was given is felony. final judgment was entered he could (d) After the expiration of the time have relied on the nine-month-delay limits set by Subsection (c) of this article provision of article 22.16(c)(1) which and before the entry of final judgment was declared to be unconstitutional at a against the bond, the court in its later date." Lyles v. State, 814 S.W.2d at discretion may remit to the surety all or 412 (emphasis in original). part of the amount of the bond. . . . I believe it is quite plain that the [*506] (Emphasis added.) We have court of appeals was only half right. held that subsection (c) is violative of That is, the court of appeals was correct our state constitution's separation of when it determined that Article 22.16(a) Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) powers provision and is, therefore, of no its reference to subsection (c) and that effect. State v. Matyastik, 811 S.W.2d remittitur is now discretionary with the 102 ; Armadillo Bail Bonds v. State, 802 trial court before final judgment under S.W.2d 237 (Tex.Cr.App. 1990) . We subsection (d). There are several have also held, albeit cryptically, that problems with the majority's analysis,

however. First, Matyastik, despite its subsection (a) is contingent upon the somewhat oblique discussion, explicitly held that only "the portion of Art. time limitations established in 22.16(a), V.A.C.C.P. , utilizing subsection (c), and thus has no effect without the invalid provisions. Recently subsection (c) is invalid." The balance of we stated in [Ex parte] Jones [803 Article 22.16(a) remains valid and is not S.W.2d 712, 714 (Tex.Cr.App. 1991)] unconstitutional, [**29] at least not that ". . . should part of the bill be held under any theory yet advanced by the invalid . . . the remainder of the statute majority. Second, there was no must be sustained if it is complete in discussion in Matyastik concerning itself and capable of being executed in discretionary remittitur under subsection accordance with the [legislative] intent (d). Indeed, subsection (d) was never mentioned in our opinion. Third, wholly independent of that [**28] which has been rejected." Because subsection (a)'s constitutional infirmity-- subsection (a) cannot be executed or its utilization of subsection (c)--applies have any effect without utilizing the with at least equal force to subsection provisions of subsection (c), we hold (d). Thus, if subsection (a) falls because that the portion of Art. 22.16(a), of its reference to subsection (c), then V.A.C.C.P., utilizing subsection (c) is subsection (d) must surely fall as well. invalid under Article 2, § 1 of the Texas There is no escaping this conclusion. Constitution. Thus, remittitur now may

In my view, we must have been be done anytime between forfeiture and referring in Matyastik to mandatory entry of a final judgment. remittitur under the surviving portions of Article 22.16(a) and (d). This

State v. Matyastik, 811 S.W.2d at 104 interpretation of Matyastik is the only (emphasis added; citation and some one that is both coherent and gives some punctuation omitted). Given the effect to the legislative scheme principle of stare decisis, the disposition embodied in Article 22.16. of the case at bar must certainly depend As it was originally conceived by the in large part on what we meant in Legislature, Article 22.16 created a Matyastik. scheme in which sureties on bail bonds The majority concludes from its had an absolute right to remittitur for a interpretation of Matyastik that lengthy period of time after forfeiture if subsection (a) is void in toto because of one of the conditions specified in Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) subsection (a) was met. Following that "it is well settled that if one part of a set period of time--defined in subsection statute is held unconstitutional, the (c)--discretionary remittitur was still remainder of the statute continues to be possible under subsection [**30] (d) if a valid." Indeed, this principle of statutory request was made before final judgment. construction has been codified at Tex. ^[1] Thus,

the Legislature apparently [*507] Gov't Code Ann. § 311.032(c) believed that it was good public policy which provides: to give bailbondsmen a strong incentive

In a statute that does not contain a to return their principals to custody provision for severability or before final judgment. We can still give nonseverability, if any provision of the some effect to this legislative scheme if statute or its application to any person or we construe our holding in Matyastik to circumstance is held invalid, the refer to mandatory remittitur. Because of invalidity does not affect other the majority's failure to do so, I provisions or applications of the statute respectfully dissent. that can be given effect without the invalid provision or application, and to

1 I concur in the result reached this end the provisions of the statute are by the majority because Lyles filed severable. his motion to vacate the judgment

(EDITOR'S NOTE: TEXT WITHIN

and for remittitur approximately THESE SYMBOLS [O> <O] IS thirty days after the entry of final

OVERSTRUCK IN THE SOURCE.)

judgment. In Matyastik, we correctly applied §

CAMPBELL, J.

311.032(c) and held "the portion of Art.

DELIVERED FEBRUARY 3, 1993

22.16(a), V.A.C.C.P. , utilizing EN BANC subsection (c) (was) invalid . . . ." Matyastik, 811 at 104. We then

MALONEY, J., JOINS

concluded, [O>without dissent,<O$ ) that mandatory remittitur could be made

DISSENTING OPINION ON STATE'S

"anytime between forfeiture and entry of

PETITION FOR DISCRETIONARY

a final judgment." ^[1] Id.

REVIEW

BAIRD, Judge 1 Unless otherwise indicated, all emphasis herein is supplied by the

I respectfully dissent. As appellant author. aptly states, "the cardinal rule of statutory construction is to save, not

[**32] Today, the majority, destroy." Appellant's brief, pg. 11. In purporting to rely on Matyastik, State v. Matyastik, 811 S.W.2d 102, 104 concludes that without the time limits in (Tex.Cr.App. 1991) , we noted, [**31] subsection (c) "remittitur of a forfeited Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) bond would be mandatory at any time After the expiration of the time after the forfeiture because there is no limits set by Subsection (c) of this judgment provision in (a). Consequently, article and before the entry of a subsection (a) cannot be executed or final judgment against the bond, have any effect without the invalid the court in its discretion may remit provisions. Subsection (a) is thus void. to the surety all or part of the We therefore hold that mandatory amount of the bond after deducting remittitur provisions of 22.16(a) are no the costs of court, any reasonable longer valid. Remittitur may instead be costs to the county for the return of done at the trial court's discretion at any the principal, and the interest time before entry of a final judgment accrued on the bond amount as [Footnote omitted]" pursuant to Tex. provided by Subsection (e) of this Code Crim. Proc. Ann. art. 22.16(d) . article. Lyles v. State, S.W.2d at

The majority ignores the fact that, in (Tex.Cr.App. 1992, No. 1302-91, 1987, the Legislature amended art. 22.16 delivered October 7, 1992), slip op. pg. to its current form, providing for both 4. mandatory and discretionary remittitur. To reach this holding, the majority Obviously the Legislature did not mis-interprets Matyastik. As I interpret perceive a conflict between subsections Matyastik, the mandatory provisions of (a) [**34] and (d). Indeed, there is no subsection (a) were still valid "anytime such conflict; one provides for between forfeiture and entry of a final mandatory remittitur while the other judgment." Matystik, 811 S.W.2d at 104 . provides for remittitur at the discretion

of the trial court. In other words, if the The majority justifies its holding by bond is forfeited for a reason other than creating a conflict between subsections one provided by subsection (a), the trial (a) and (d). The majority states "if judge may, at his discretion, subsection (a) is to be read without nevertheless remit all or part of the reference to the [**33] time limitations amount of the bond under subsection of subsection (c), the trial court would (d). no longer have" the discretion found in subsection (d). What the majority fails to The Legislature provided for recognize is that subsection (d) also mandatory remittitur to encourage the relies upon the time limits set by making of bonds for those incarcerated subsection (c). ^[2] Consequently,

if while awaiting trial. As the Court of subsection (a) is unconstitutional, Appeals recognized: subsection (d) is also unconstitutional.

The legislature has considered the overcrowded condition of most jails and 2 Art. 22.16(d) provides: the state penitentiary, and determined it Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) to be the public policy of allow a 1990 and Lyles filed his motion to remittitur of an appearance bond when modify less than thirty days later, the principal is returned to custody prior March 6, 1990. Accordingly, the to final judgment. In making its judgment was not final under Tex. determination, the legislature has R. Civ. Proc. Ann. 329b(d), (e) and recognized that jail and penitentiary (f). See also, prior Rule 329b(5) space is critical in Texas and that the (Judgments shall be come final bail bond industry provided a useful after the expiration of thirty (30) service by assuming the risk of a days the date of rendition of defendant's timely appearance in court. judgment or order overruling an When a defendant is released on bail original or amended motion for bond, the potential liability that cities new trial.) Accordingly, the and counties assume while housing judgment was not final and the persons [*508] accused of crimes are remittitur was mandatory under eliminated [**35] as well as the Matyastik. financial burden for housing each

[**36] Keeping in mind the prisoner. In addition, critical jail space is "cardinal rule of statutory construction" made available for more serious we can save, not destroy art. 22.16. I offenders. believe, consistent with our holdings in Armadillo Bail Bonds v. State, 802

Lyles v. State, 814 S.W.2d 411, 412 S.W.2d 237 (Tex.Cr.App. 1990) and (Tex. App.--Waco 1991). Matyastik, art. 22.16 should be read as I believe the Court of Appeals' follows: treatment of this case was, in all respects, correct. ^[3]

(a) Anytime between forfeiture and entry of a final judgment, $ (O>After

3 Judge Campbell believes the forfeiture of a bond and before the entry of a final judgment before the expiration court of appeals "was surely of the time limits set by Subsection (c) wrong, however, when it concluded that Lyles was entitled of this article,<O$ ) the court shall on to remittitur even though he filed written motion, remit to the surety the his motion for remittitur after the amount of the bond . . . . trial court rendered final

(b) No change. judgment." Lyles v. State, S.W.2d $ (O>(c) A final judgment may be at (Campbell, J., Concurring and entered against a bond not earlier than: Dissenting), slip op. pg. 2 (Emphasis in original.). I disagree.

(1) nine months after the date the The record reflects the trial judge forfeiture was entered, if the offense for entered a judgment on February 7, which the bond was given is a

Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993) misdemeanor, or(2) 18 months after the (e) No change. date the forfeiture was entered, if the

Because the majority destroys rather offense for which the bond was given is than saves art. 22.16, I respectfully a felony.<O$ ) dissent. (d) Anytime between forfeiture and $ BAIRD, Judge (O>After the expiration of the time (Delivered February 3, 1993) limits set by Subsection (c) of this article and before the<O$ ) entry of a final En banc judgment against [**37] the bond. . . .

McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008) MIKE McKENNA d/b/a BONDMAN BAIL BONDS, Appellant v. THE STATE OF TEXAS No. PD-0053-07

COURT OF CRIMINAL APPEALS OF TEXAS

247 S.W.3d 716 ; 2008 Tex. Crim. App. LEXIS 383

March 12, 2008, Delivered NOTICE: PUBLISH JJ., joined. WOMACK, J., did not participate. PRIOR HISTORY: [**1]

ON THE STATE'S PETITION FOR

OPINION BY: HOLCOMB

DISCRETIONARY REVIEW.

IN

CAUSE NO. 10-05-00318-CR FROM

OPINION

THE TENTH COURT OF APPEALS,

[*717] In this bail bond forfeiture

JOHNSON COUNTY.

case, the trial court denied the surety's McKenna v. State, 209 S.W.3d 233, 2006 request to remit a portion of the bond Tex. App. LEXIS 9401 (Tex. App. Waco, amount. The court of appeals later 2006) reformed the trial court's order to reflect a remittitur of 60% of the bond amount.

COUNSEL: For APPELLANT: Mike We reverse. McKenna, Pro se, Fort Worth, TX. On January 18, 2001, Belinda Lee Powell, charged in Johnson County with For STATE: Lisa A. Wyatt, a felony drug offense, failed to appear in

ASSISTANT DISTRICT ATTORNEY,

court for her trial. On February 13, 2001, Cleburne, TX; Jeffrey L. Van Horn, the trial court rendered judgment nisi for STATE'S ATTORNEY, Austin, TX. the State and against Powell and her surety, Mike McKenna d/b/a Bondman

JUDGES: HOLCOMB, J., delivered the Bail Bonds, jointly and severally, in the opinion of the Court, in which KELLER, amount of Powell's bail bond, which was P.J., and MEYERS, PRICE, JOHNSON, $ 25,000. On that same date, the trial KEASLER, HERVEY, and COCHRAN, McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008) court ordered that a capias be issued for and was "assured . . . that [Powell] Powell's arrest. On March 26, 2003, at [**3] had been arrested." the bond forfeiture hearing, the trial

At the close of Smith's testimony, the court rendered a default final judgment trial court allowed McKenna and the for the State and against Powell and State to present their arguments. McKenna. McKenna argued that equity demanded On March 22, 2005, McKenna filed a "a substantial remittitur" because: (1) "Smith [had] expended substantial special bill of review [**2] in the trial court requesting, on equitable grounds, efforts in locating" and apprehending that the default final judgment be Powell and (2) "the State ha[d] not reformed to reflect a 95% remittitur of presented any evidence showing how [it the bond amount. On June 27, 2005, the had been] prejudiced" by the seven- trial court held an evidentiary hearing on month delay in apprehending Powell. McKenna's bill. At that hearing, The State responded that equity did not McKenna called one witness, [*718] require any remittitur at all because: (1) Charles A. Smith, and the State called Smith's testimony had been "sketchy at no witnesses. Smith testified that: (1) he best"; (2) Smith's efforts to locate and apprehend Powell had been "minimal"; was, at the relevant times, an employee of McKenna's; (2) after Powell failed to and (3) the delay in apprehending appear in court for her trial, he and other Powell had been "significant." McKenna employees "did [their] best to

On July 25, 2005, the trial court get [Powell] arrested"; (3) they issued an order denying any remittitur to "searched all the places [they] thought McKenna. The trial court gave no she might be," they "contacted her explanation for its ruling. sisters [and] her mother," and they On direct appeal, McKenna argued publicly offered a $ 1,000 reward for that the trial court's denial of remittitur information leading to her arrest; (4) on had been "an abuse of discretion September 13 or 14, 2001, an informant considering all the facts of the case, telephoned their office and told them of especially in view of the fact . . . that the Powell's whereabouts; (5) on September Surety [had been] totally responsible for 15, 2001, he personally went to the locating [Powell] and having her location given by the informant, which apprehended." McKenna argued, too, was off County Road 801 in Johnson that "the state [had] failed to present any County, and found Powell there; (6) he evidence of harm done to the [**4] immediately telephoned the Johnson public or [any] prejudice suffered by the County Sheriff's Office and gave them government" as a consequence of the Powell's location; and (7) he telephoned delay in apprehending Powell. The State the Sheriff's Office again later that day counterargued that the trial court had not McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008) abused its discretion in denying remittitur because McKenna had failed to carry his "burden [of showing] the

The [**5] State later filed a petition [trial] court the equitable grounds for discretionary review, which we [required] to grant the special bill of granted. See Tex. R. App. Proc. 66.3(e) . review." In its petition and accompanying brief, The Tenth Court of Appeals, by a the State, in essence, reiterates the arguments made by [*719] the chief vote of two to one, agreed with McKenna's arguments and reformed the justice in the court below. McKenna, in trial court's order to reflect a remittitur response, argues that the court of of 60% of the bond amount, i.e., $ appeals "properly found . . . a clear and 15,000. McKenna v. State, 209 S.W.3d profound abuse of discretion based on 233, 236-237 (Tex.App.-Waco 2006) . the . . . record." The chief justice of the court of appeals,

Article 22.17(a) of the Texas Code of in dissent, argued: Criminal Procedure provides: "[T]he majority has placed "Not later than two years the burden on the State to after the date a final judgment avoid a remittitur by is entered in a bond forfeiture presenting evidence. This is proceeding, the surety on the an erroneous placement of the bond may file with the court a burden of proof. The burden special bill of review. A of proof is on the surety to special bill of review may establish that on equitable include a request, on grounds a remittitur should be equitable grounds, that the ordered. final judgment be reformed * * * and that all or part of the bond amount be remitted to the "The hearing [on the surety, after deducting the special bill of review] costs of court, any reasonable focussed on McKenna's costs to the county for the efforts to locate Powell. return of the principal, and the Evidence on this single factor interest accrued on the bond was not enough to convince amount from the date of the trial court of the surety's forfeiture. The court in its equitable interest in being discretion may grant or deny granted a remittitur. I find no the bill in whole or in part." abuse of discretion." Id. at 238-239 .

McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008) Under the plain wording of the contemplates that the accused's statute, a surety may request, within two nonappearance will normally result in years of a final judgment on a bond total forfeiture of the bond amount. forfeiture, that the trial court order a While keeping that fact in mind, the trial [**6] remittitur of all or part of the bond court may consider any factor bearing amount on equitable grounds. Although upon the equity of the situation, the statute does not state that the surety including, but not necessarily limited to, has the burden of proof with respect to the following: (1) whether the accused's the existence of such equitable grounds, failure to appear in court was willful; (2) we are of the view that the surety does whether the delay caused by the indeed have that burden, since the surety accused's failure to appear in court is the party attempting to change the prejudiced the State or harmed the status quo. This is so even though the public interest; (3) whether the surety State may have superior access to proof participated in the re-arrest of the of certain matters. As one leading accused; (4) whether the State incurred treatise explains, "The burdens of costs or suffered inconvenience in the pleading and proof with regard to most re-arrest of the accused; (5) whether the facts have been and should be assigned surety received compensation for the to the [party] who generally seeks to risk of executing the bail bond; and (6) change the present state of affairs and whether the surety will suffer extreme who therefore naturally should be hardship in the absence of a remittitur. expected to bear the risk of failure of See Lyles v. State, 850 S.W.2d 497, 502 proof or persuasion." K. Broun (ed.), (Tex.Crim.App. 1993) ; Gramercy Ins. McCormick on Evidence § 337 at 474 Co. v. State, 834 S.W.2d 379, 381-382 (6th ed. 2006). Our research also reveals (Tex.App.-San Antonio 1992, no pet.) ; that most or all other American 8A Am. Jur. 2d Bail and Recognizance jurisdictions also assign the burden of §§ 150 & 151 (1997); 8 C.J.S. Bail § proof to the party seeking relief from a 290 (2005). bond forfeiture. See 8A Am. Jur. 2d Bail

On this record, a reasonable trial and Recognizance § 150 (1997); 8 C.J.S. [**8] court could have concluded that Bail § 313 (2005). equity did not require any remittitur of Under the terms of Article 22.17(a) , the bond amount. Thus, we discern no the decision whether to grant any abuse of discretion on the part of the remittitur on equitable grounds rests trial court. McKenna had the burden of within the sound discretion of the trial showing that equity required a remittitur court. In making its decision, [**7] the of some or all [*720] of the bond trial court must keep in mind that, since amount, yet he presented evidence on the purpose of bail is to secure the only one of the relevant factors: his accused's appearance in court, the law participation in the re-arrest of Powell.

McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008) McKenna, who undoubtedly received The record shows no abuse of monetary compensation for his risk in discretion on the part of the trial court, executing Powell's bail bond, presented and the court of appeals erred in holding no evidence concerning the reason for otherwise. We reverse the judgment of her nonappearance in court, or the the court of appeals and affirm the order prejudice, costs, and inconvenience of the trial court. suffered (or not suffered) by the State

DELIVERED MARCH 12, 2008

and the public as a result of her

PUBLISH

nonappearance and the seven-month delay until she was re-arrested.

Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.) Robert Mendez d/b/a A-1 Bonding Company, Surety, Appellant v. The State of Texas, Appellee NO. 03-12-00200-CV COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN 2013 Tex. App. LEXIS 13278 October 25, 2013, Filed PRIOR HISTORY: [*1] MEMORANDUM OPINION

FROM COUNTY COURT AT LAW

Robert Mendez d/b/a A-1 Bonding

NO. 1 OF CALDWELL COUNTY. NO.

Company (Mendez) appeals the trial

5203, HONORABLE EDWARD L.

court's judgment awarding $5,000 plus

JARRETT, JUDGE PRESIDING.

court costs to the State of Texas in a bond-forfeiture suit. We will affirm the

DISPOSITION: Affirmed. district court's judgment.

BACKGROUND

COUNSEL: For appellee: Ms. Suits for bond forfeiture are governed Cassandra M. Benoist, Assistant by chapter 22 of the Texas Code of Criminal District Attorney-Caldwell Criminal Procedure. See Tex. Code County, Lockhart, TX. Crim. Proc. arts. 22.01-.18 . Under article 22.02 , a bond may be forfeited

For appellant: Mr. John P. Bennett, when a defendant has posted bond but Lockhart, TX. fails to appear in court as required. Id . art. 22.02 . Specifically, when the

JUDGES: Before Justices Puryear, defendant fails to appear within a Pemberton and Field. reasonable time after called by name at the courthouse door, the trial court

OPINION BY: Scott K. Field enters a judgment providing "that the State of Texas recover of the defendant

OPINION

the amount of money in which he is Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.) bound, and of his sureties, if any, the could take Tokola into custody pursuant amount of money in which they are to [*3] a warrant that had issued for her respectively bound." Id . This judgment, arrest. However, Mendez testified that referred to as a judgment nisi, must also once the officers arrived, Tokola--who state that it will be made final, unless was visibly pregnant at the time--began good cause is shown for why the complaining of stomach pain and asked defendant did not appear. Id . At a later to be taken to the hospital. Counsel for Mendez then presented the testimony of [*2] hearing to finalize the bond forfeiture, "[t]he essential elements of Sergeant Richard Torres, the supervising the State's cause of action . . . are the police officer on the scene that day. bond and the judicial declaration of the Torres testified that, upon the arrival of forfeiture of the bond, which is the an ambulance and an evaluation by judgment nisi." Alvarez v. State, 861 emergency medical personnel, he S.W.2d 878, 880-81 (Tex. Crim. App. decided not to arrest Tokola. Instead, 1992) . Torres released Tokola for transport to

the local hospital. In this case, Vallery Tokola, the principal, was arrested for misdemeanor At the conclusion of the hearing, Mendez asserted that he was entitled to criminal trespass, and Mendez, the surety, filed a bond conditioned on exoneration and alternatively requested a Tokola's subsequent appearance. On remittitur in the full amount of the bond. January 7, 2010, Tokola failed to appear The trial court later rendered judgment in court as required. On February 1, against Tokola and Mendez, jointly and 2010, in accordance with chapter 22, the severally, for the full amount of the bond trial court issued a judgment nisi for plus costs. Upon Mendez's request, the $5,000 and declared the bond forfeited. court issued findings of fact and

conclusion of law. Upon notifying Mendez of the bond- forfeiture proceedings, the trial court

STANDARD OF REVIEW

conducted a hearing to finalize the judgment. At the hearing, the State Although bond-forfeiture entered several documents into proceedings are criminal cases, appellate evidence, including the judgment nisi, review of bond-forfeiture proceedings is but did not present any testimony. governed by civil law, including the Mendez testified on his own behalf standard of review. Tex. Code Crim. regarding actions he took aimed at Proc. art. 44.44 (providing that "the returning Tokola to incarceration proceeding shall be regulated by the [*4] following her failure to appear. Mendez same rules that govern civil actions explained that on February 5, 2011, he where an appeal is taken"); International "lured" Tokola to his office and then Fid. Ins. Co. v. State, No. 03-09-00539- called the Lockhart police so that they CR, 2010 Tex. App. LEXIS 8873, 2010

Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.) WL 4366913, at *2 n.3 (Tex. App.-- bond, the court in its Austin Nov. 3, 2010, no pet.) (mem. op.) discretion may remit to the (applying civil standard to review for surety all or part of the factual and legal sufficiency). amount of the bond after

deducting the costs of court In a bench trial, where the trial court and any reasonable and makes findings of fact, as it did in this necessary costs to the county case, those findings of fact are the for the return of the principal, equivalent of jury answers to special and the interest accrued on issues. Echols v. Olivarez, 85 S.W.3d the bond amount as provided 475, 477 (Tex. App.--Austin 2002, no by Subsection (c). pet.) . This Court reviews the trial court's findings of fact for legal sufficiency and factual sufficiency of the evidence.

Tex. Code Crim. Proc. art. 22.16(b) . In Seasha Pools, Inc. v. Hardister, 391 two issues on appeal, Mendez challenges S.W.3d 635, 639 (Tex. App.--Austin the trial court's failure to grant him a 2012, no pet.) . When, as here, a party discretionary remittitur under article attacks the factual sufficiency of an 22.16(b) . First, Mendez asserts that the adverse finding on an issue on which he evidence is factually insufficient to has the burden of proof, he must support the trial court's finding that demonstrate on appeal that the adverse Mendez was "advised that the San finding is against the great weight and Marcos Police Department would take preponderance of the evidence. See Dow Defendant Vallery Tokola into custody Chem. Co. v. Francis, 46 S.W.3d 237, if Defendant Robert Mendez would 242 (Tex. 2001) (per curiam). In contact that agency and make a formal conducting this review, we do not request." Second, Mendez argues that engage in our own factual review; the trial court abused its discretion in rather, the trial judge is the "sole judge failing to grant him a remittitur for of the credibility of the witnesses and "good cause" pursuant to article the weight to [*5] be given their 22.16(b) . Mendez asserts that he was testimony." McGalliard v. Kuhlmann, entitled to remittitur for all or part [*6] 722 S.W.2d 694, 696 (Tex. 1986) . of the bond because, as a result of the officers' failure to comply with their

ANALYSIS

statutory duties to arrest Tokola, he was Article 22.16 of the Code of Criminal unfairly deprived of his statutory right to Procedure provides: exoneration. ^[1] (b) For other good cause 1 At trial, Mendez also argued shown and before the entry of that he was entitled to exoneration. a final judgment against the Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.) Article 22.13 of the Texas Code of custody if Defendant Robert Mendez Criminal Procedure provides a would contact that agency and make a statutory defense to forfeiture formal request" is supported by factually proceedings, exonerating sufficient evidence. At the hearing, the defendants and sureties in certain following exchange took place between limited circumstances. See Tex. Sergeant Torres and counsel for the Code Crim. Proc. art. 22.13(a)(1)- State: (5) . One of those circumstances is detailed in article 22.13(a)(5) and COUNSEL: And it's your provides that a defendant and his understanding that [Tokola] sureties, if any, are exonerated got in the ambulance and she from liability in a misdemeanor was taken to the hospital? I'm case when the principal becomes guessing Luling she was incarcerated "at the time of or not taken to. later than the 180th day after the

TORRES: No, she was date of the principal's failure to taken to San Marcos because appear." Id . art. 22.13(a)(5) . In this I remember mentioning to case, the trial court made several somebody if they wanted to, findings relevant to Mendez's they could call San Marcos. I exoneration defense, including that don't remember who talked to Tokola "was never incarcerated as the bonding company. They per Article 22.13(a)(5), Texas Code could call San Marcos, to the of Criminal Procedure, until officer on duty at the hospital, October 26, 2011." On appeal, and you [sic] once she had a Mendez does not challenge any of doctor release, the jail could these findings. Further, Mendez accept her then. does not argue that, under the evidence presented, he was entitled to exoneration. Instead, [*7]

This is the only testimony concerning Mendez argues that the inaction of the parties' understanding regarding the police constitutes good cause Tokola's custody during her transport for remittitur pursuant to article and upon her arrival at the hospital. 22.16(b) because it deprived him of Torres's testimony [*8] regarding this an otherwise certain exoneration issue is unclear, at best. To the extent the defense. fact in dispute is relevant to Mendez's We first consider whether the trial request for a remittitur, we will assume court's determination that "Mendez was without deciding that the evidence advised that the San Marcos Police supporting it is factually insufficient. Department would take [Tokola] into Accordingly, we next examine whether Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.) the trial court's denial of remittitur was re-arrest of the accused; (5) whether the an abuse of discretion, in the absence of surety received compensation for the this fact. risk of executing the bond; and (6)

whether the surety will suffer extreme Mendez argues that the trial court hardship in the absence of a remittitur. was provided with "good cause" to remit Id . An abuse of discretion occurs if the all or part of the bond and abused its trial court acts without reference to any discretion in refusing Mendez's request guiding rules and principles or, in other to do so. See id . Mendez contends that words, if the court acted arbitrarily or (1) he "did everything expected of him unreasonably. Lyles v. State, 850 S.W.2d to have [Tokola] arrested and 497, 502 (Tex. Crim. App. 1993) . incarcerated," and (2) "but for, the actions of [the officers], in clear At the hearing to finalize the bond- violation of their statutorily imposed forfeiture judgment, Mendez had the duties, Tokola was allowed to go free, burden of showing that the depriving [Mendez] of his statutory right circumstances entitled him to a to an exoneration . . . ." remittitur of some or all of the bond. See

McKenna, 247 S.W.3d at 719-20 . In Under the terms of article 22.16(b) , support of his remittitur request, Mendez the decision to grant or deny remittitur [*10] presented evidence relevant to one to the surety, in whole or in part, rests of the factors--his efforts on February 5, within the sound discretion of the trial 2011, to have Tokola taken into custody court. McKenna v. State, 247 S.W.3d by police for incarceration. However, 716, 719 (Tex. Crim. App. 2008) . In Mendez did not present any evidence of making its decision, the trial court must the costs he incurred in these efforts, if keep in mind that the purpose of bail is any. Likewise, Mendez did not present to secure the accused's appearance in any evidence concerning the reason, if court; the law contemplates [*9] that the any, that Tokola failed to appear in accused's nonappearance will normally court. In fact, the trial court found that result in forfeiture of the bond amount. Mendez failed to show good cause for Id . In addition, the trial court may Tokola's original failure to appear in consider any factor relevant to good court on January 7, 2013, and Mendez cause, including (1) whether the does not challenge this finding on accused's failure to appear in court was appeal. Mendez also did not establish for good cause; (2) whether the delay that his compensation for his surety caused by the accused's failure to appear services was extraordinarily low in light in court prejudiced the State or harmed of the risk undertaken. Finally, Mendez the public interest; (3) whether the did not present any evidence concerning surety participated in the re-arrest of the the prejudice, costs, and inconvenience, accused; (4) whether the State incurred costs or suffered inconvenience in the

Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.) if any, suffered by the State and the presented evidence of only one of the public. relevant factors). We overrule Mendez's

first and second issues on appeal. Viewing the record as a whole, we cannot conclude that the trial court's

CONCLUSION

failure to find good cause for remittitur under article 22.16(b) is against the Having concluded that the trial court great weight and preponderance of the did not abuse its discretion, we affirm evidence. As a result, we cannot the judgment of the trial court. conclude that the trial court's decision to

Scott K. Field, Justice deny Mendez's request for remittitur was Before Justices Puryear, Pemberton arbitrary or unreasonable--that is, the and Field record shows no abuse of discretion. [*11] See id. at 720 (concluding that

Affirmed trial court's denial of remittitur was not Filed: October 25, 2013 abuse of discretion where surety Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) Gaile Nixon, Individually and A/N/F/ of R.M.V., a Minor, Petitioner, v. Mr. Property Management Company, Inc. Et

Al., Respondents No. C-3425

SUPREME COURT OF TEXAS

690 S.W.2d 546 ; 1985 Tex. LEXIS 852 ; 28 Tex. Sup. J. 384 May 1, 1985 SUBSEQUENT HISTORY: [**1] against Mr. Property Management Rehearing Denied June 19, 1985. Company and Brett Davis. R.M.V. was

raped in a vacant unit of the defendants' PRIOR HISTORY: From Dallas apartment complex. She was not a County, Fifth District. resident or a guest at the complex. The

trial court granted Mr. Property and Brett Davis' motion for summary

COUNSEL: Randall R. Moore, from judgment. The court of appeals affirmed Dallas, for petitioner. the judgment. 675 S.W.2d 585 . We

reverse the judgments of the courts Jack Pew, Jr., (Jackson, Walker, below and remand the cause to the trial Winstead, Cantwell & Miller), from court for a trial on the merits. Dallas, for respondent.

Background JUDGES: Hill, C.J. Justice Spears and R.M.V., age 10, resided at the Justice Kilgarlin concurring. Dissenting Landmark Apartments. At about 7:00 Opinion by Justice McGee in which p.m. on August 7, 1981, while it was Justice Wallace and Gonzalez join. still light, a young man abducted R.M.V. from a sidewalk outside the Landmark

OPINION BY:

HILL Apartments and dragged her to the Chalmette Apartments, located

OPINION

diagonally across the street [**2] from [*547] This is an action for damages the Landmark Apartments. According to filed on behalf of a minor, R.M.V., R.M.V.'s affidavit, her assailant took her Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) "directly to a vacant apartment at A. I think there are many Chalmette Apartments." There, he raped reasons. One of the reasons her, put her in the closet, told her not to would be for the simple leave, and disappeared. There are no reason we're here. other known witnesses. Chalmette Apartments learned of the incident later A Dallas City Ordinance established that night when a police officer spoke to minimum standards for landowners: the maintenance man and the resident manager. SEC. 27-11. MINIMUM

STANDARDS,

[*548] There was evidence

RESPONSIBILITIES

OF concerning the unit's dilapidated

OWNER.

condition. The responding officer, George Tilley, stated in his affidavit

(a) Property that: "The glass was broken from the standards . An windows and the front door was off its owner shall: hinges. The apartment unit in question was empty, filthy, dirty and full of (6) keep the doors and windows debris." In his deposition, Brett Davis, the owner of Chalmette Apartments, of a vacant admitted that leaving doors off hinges structure or vacant and windows without panes would tend portion of a to encourage vagrants to occupy these structure securely apartments. Gene Jacobson, president of closed to prevent Mr. Property Management Company, unauthorized entry. stated in his deposition that one reason for securing vacant units was to prevent this type of crime from occurring. The Revised Code of Civil and Criminal testimony was as follows: Ordinances of the City of Dallas §

27.11(a)(6). Q. What is the reason why The summary judgment evidence you should keep doorknobs included a list of police incident reports on doors of vacant concerning the Chalmette Apartments apartments? during the two years prior to the rape. A. [**3] Numerous Police had investigated numerous crimes reasons. One, I would say, to committed at the complex including one secure -- Okay . . . . attempted murder, two aggravated

robberies, two aggravated assaults, Q. Any other reason? sixteen apartment burglaries, four vehicle burglaries, four cases of theft,

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) five cases of criminal mischief, and one through gross negligence. The court also auto theft. held that the condition of the apartment

complex was [**5] not a proximate Gaile Nixon, R.M.V.'s mother and cause of the rape because R.M.V.'s next friend, filed suit alleging that Mr. abduction and rape were not a Property Management Company, Inc., reasonably foreseeable consequence and Brett Davis (manager and owner, thereof. respectively, of [**4] Chalmette Apartments) and I. V. Investment, Inc.,

Summary Judgment and James R. Liddle (manager and owner, respectively, of Landmark This is an appeal from a summary Apartments) were liable in tort for judgment. The standards for reviewing a R.M.V.'s injuries. Nixon settled with the motion for summary judgment are well Landmark Apartment interests. Brett established. As mandated by this court, Davis purchased Chalmette Apartments they are: in March of 1981. He hired Mr. Property to manage the complex near the end of 1. The movant for summary that month. judgment has the burden of

showing that there is no Nixon contends that Mr. Property and genuine issue of material fact Brett Davis (for convenience both and that it is entitled to parties will be referred to as Mr. judgment as a matter of law. Property) owed R.M.V. a duty of reasonable care which duty was 2. In deciding whether breached. She further alleged that such there is a disputed material breach was a proximate cause of the fact issue precluding [*549] rape and resulting injuries because this summary judgment, evidence crime was reasonably foreseeable under favorable to the non-movant all the attending circumstances. will be taken as true.

The trial court sustained Mr. 3. Every reasonable inference Property's motion for summary must be indulged in favor of judgment and rendered judgment that the non-movant and any Nixon take nothing. In affirming the trial doubts resolved in its favor. court's judgment, the court of appeals held that, since R.M.V. was on Mr.

Montgomery v. Kennedy, 669 S.W.2d Property's property without its 309, 310-11 (Tex. 1984) ; Wilcox v. St. knowledge and consent, R.M.V. was a Mary's University of San Antonio, 531 trespasser and Mr. Property's duty S.W.2d 589, 592-93 (Tex. 1975) . See toward her was no greater than not to also City of Houston v. Clear Creek injure her willfully, wantonly, or Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) Basin Authority, 589 S.W.2d 671 (Tex. Using the mandated standard for 1979) . reviewing summary judgment, we

conclude that a genuine issue of material Duty [**7] fact exists as to Mr. Property's breach of duty. If the trier of fact In this case, the question of what duty concludes that Mr. Property violated the Mr. Property owed to R.M.V. is ordinance without a valid excuse, Mr. answered by the ordinance. This Property is negligent per se. This does ordinance legislatively imposes a not end our inquiry; we must still standard of conduct which we adopt determine if there is a material fact issue [**6] to define the conduct of a on the question of proximate cause. reasonably prudent person. Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978) ;

Proximate Cause Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex. A material fact issue exists in this 1977) . The unexcused violation of a case as to whether Mr. Property's statute or ordinance constitutes negligence, if any, proximately caused negligence as a matter of law if such R.M.V.'s injuries. The two elements of proximate cause are cause in fact and statute or ordinance was designed to prevent injury to the class of persons to foreseeability. Missouri Pac. R. Co., 552 which the injured party belongs. Id. A S.W.2d at 103 . reasonable interpretation of this

Cause in fact denotes that the ordinance is that it was designed to deter negligent act or omission was a criminal activity by reducing the substantial factor in bringing about the conspicuous opportunities for criminal injury and without which no harm would conduct. In fact, Mr. Property's president have been incurred. Id. Viewing the testified that one reason vacant summary judgment as we must, drawing apartment units should be secured is to all reasonable inferences in favor of prevent this type of criminal activity. An R.M.V., we conclude that a reasonable ordinance requiring apartment owners to inference exists that, but for Mr. do their part in deterring crime is Property's failure to comply with the designed to prevent injury to the general ordinance regarding maintenance of its public. R.M.V. falls within this class. apartment complex, this crime would Since the ordinance was meant to protect have never taken place. There is a larger class than invitees and licensees, evidence that the assailant took R.M.V. and since R.M.V. committed no wrong "directly to a vacant apartment," the in coming onto the property, these inference being that the assailant was premise liability distinctions are acutely aware of the vacant unit's [**8] irrelevant to our analysis. existence and embarked upon his course of criminal conduct at this particular

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) time and place knowing that this unit Co., 663 S.W.2d 60 (Tex. App. -- San was an easily accessible place in which Antonio 1983, writ ref'd n.r.e.); to perpetrate this assault in isolation. Walkoviak v. Hilton Hotels Corp., 580

S.W.2d 623 (Tex. Civ. App. -- Houston The court of appeals misplaced its [14th Dist.] 1979, writ ref'd n.r.e.). reliance on City of Mobile v. Largay, 346 So. 2d 393 (Ala. 1977) , which had The RESTATEMENT (SECOND) OF facts similar to ours. In Largay , the TORTS § 448 (1965) states: Alabama Supreme Court placed heavy emphasis on the fact that the assailant The act of a third person in used the city's building to commit the committing an intentional tort rape only as a last resort: or crime is a superseding

cause of harm to another Clearly, the assailant did not resulting therefrom, although even intend to use the the actor's negligent conduct building until his first plan to created a situation which carry the plaintiff away was afforded an opportunity to the thwarted when he was unable third person to commit such a tort or crime, unless the actor to start her car. Only when he failed after six or seven at the time of his negligent attempts to start the car, did conduct realized or should he resort to the unlocked have realized the likelihood cellar. that such a situation might be

created, and that a third Id. at 395 (emphasis theirs). person might avail himself of the opportunity to commit Finally, we turn to the question of such a tort or crime . foreseeability. Foreseeability means [Emphasis added.] [*550] that the actor, as a person of ordinary intelligence, should have

The evidence is replete with instances anticipated the dangers that his negligent of prior violent crimes occurring at act created for others. Missouri Pac. R. Chalmette Apartments. This record Co., 552 S.W.2d at 103 . Usually, the certainly provides evidence that further criminal conduct of a third party is a acts of violence were reasonably superseding cause relieving the foreseeable. Evidence of [**10] specific negligent actor from liability. [**9] previous crimes on or near the premises However, the tort-feasor's negligence raises a fact issue on the foreseeability will not be excused where the criminal of criminal activity. See e.g., Walkoviak conduct is a foreseeable result of such v. Hilton Hotel Corp. , (victim of robbery negligence. Texas courts follow this sued hotel; two robberies in the vicinity rule. See Castillo v. Sears Roebuck & Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) of hotel in previous year); Kline v. 1500 entrance -- an area outside an Massachusetts Ave. Apartment Corp., individual tenant's control -- 141 U.S. App. D.C. 370, 439 F.2d 477 as exemplifying a callous (1970) (victim of assault sued apartment disregard for the residents' owner; 20 crimes in building in previous safety in violation of ordinary year); Foster v. Winston-Salem Joint standards of care. Since there Venture, 303 N.C. 636, 281 S.E.2d 36 was sufficient evidence for concluding that the mugging (1981) (victim of assault sued mall owner; 29 crimes in mall parking lot in was a foreseeable result of the previous year); Butler v. Acme Markets, landlord's negligence, the Inc., 89 N.J. 270, 445 A.2d 1141 (1982) jury's finding of liability was (victim of assault sued grocery store; warranted. seven assaults in parking lot in previous year); Graham v. M & J Corp., 424 A.2d Id. at 441 . 103 (D.C. App. 1980) (arson victims

Drake v. Sun Bank & Trust Co. , a sued duplex owner; numerous previous case involving a kidnap from a bank acts of vandalism in foyer, one prior parking lot and subsequent murder, is attempted robbery, high crime area). especially instructive on this point. In In Trentacost v. Brussel, 82 N.J. 214, Drake, 377 So. 2d 1013 (Ct. of App., 412 A.2d 436 (1980) , the New Jersey Fla. 1979), the court held that the widow Supreme Court affirmed a jury award for failed to allege sufficient facts of an assault victim and against the previous crimes to meet the test of apartment owner. On the issue of foreseeability, but it remanded to allow foreseeability, the court stated: her to amend. When the case was again

appealed, 400 So. 2d 569 (Ct. of App., There was ample evidence Fla. 1981), the court said allegations that that criminal [**11] activity the bank was in high crime area [**12] affecting the Monroe Street including allegations of similar crimes on or near the facility were sufficient to building was reasonably foreseeable. More than one state a cause of action for negligence. witness testified to the high

Although there is no evidence that incidence of crime in the previous rapes had occurred at neighborhood. Plaintiff's own, Chalmette Apartments, this is not a unchallenged testimony prerequisite [*551] to finding a related an attempted theft material fact issue on foreseeability. within the building. Against this background, the jury

It is not required that the could readily view the particular accident absence of a lock on the front complained of should have Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) been foreseen . All that is SPEARS, KILGARLIN required is "that the injury be

OPINION

of such a general character

KILGARLIN

as might reasonably have been anticipated; and that the

I agree with the result reached by the injured party should be so court. However, I regret that the court situated with relation to the has chosen to avoid consideration of the wrongful act that injury to premise liability doctrine by opting for him or to one similarly an easier path of relying on a city situated might reasonably

ordinance for the duty determination. have been foreseen." [Cite Given an opportunity to render impotent omitted.] one of the last vestiges of feudalism in our common law, we nevertheless

Carey v. Pure Distributing Corp., 133 succumb to the blandishments of judicial Tex. 31, 124 S.W.2d 847, 849 (1939) torpidity. In doing so, we carve but (emphasis added). With a litany of prior another modification to the already crimes, including other violent and exception-ridden premise liability assaultive crime, at Chalmette doctrine. Rather than relying on the Apartments, and with deposition happenstance of city actions and other testimony that vagrants frequented the

judicially sculpted exceptions, I would area, a material fact question exists on cast aside doctrinal distinctions as the the foreseeability of this crime as it primary determinative of a landowner's relates to the proximate cause issue. liability and substitute a general duty of ordinary care under the circumstances.

We reverse the judgments of the courts below and remand the cause to The present law of landowner the trial court for trial on the merits. liability has its origins in the feudal period when a man's worth was

[**13] Concurring Opinion by measured by his property. A landowner Justice Spears. was then sovereign within his domain Concurring Opinion by Justice and had total [**14] liberty to do with Kilgarlin. his land as he pleased. F. Bohlen, Dissenting Opinion by Justice Studies in the Law of Torts , 163 (1926). McGee in which Justice Wallace and In the nineteenth century, before tort Gonzalez join. principles were widely recognized or

applied, the English judiciary grew CONCUR BY: SPEARS; KILGARLIN conscious of the danger that landowner immunity posed to community safety; yet the judges were reluctant to leave the CONCUR liability determination to a jury of Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) potential land entrants. Consequently, but a little, and assume Rhonda was a the judges created an entrant resident of Chalmette Apartments, classification scheme to circumscribe the [*552] dragged out of a hallway into a jury's tendencies to find landowners vacant apartment and thrice raped. liable. The Industrial Revolution ushered Under such a tableau, the whole duty in a greater number of accidents and the concept changes. Yet, but for an almost English courts began to apply emerging irrelevant municipal ordinance, this court would maintain such duty fictions. tort principles to the entrant categorization scheme. Marsh, The

The recent trend of the law, which I History and Comparative Law of would join, has been away from basing a Invitees, Licensees and Trespassers , 69 landowner's liability on his visitor's L.Q. Rev. 182 (1953); Recent artificially determined purpose of entry. Development, Torts -- Abrogation of England, the progenitor of this feudal Common-Law Entrant Classes of vestige, adopted the Occupiers Liability Trespasser, Licensee, and Invitee , 25 Act of 1957, which imposes upon Vand. L. Rev. 623, 624 (1972). These landowners a "common [**16] duty of classifications were introduced into the care" toward all visitors, excluding United States over one hundred years trespassers. 5 & 6 Eliz. 2, ch. 31 (1957). ago in Sweeny v. Old Colony & Newport The United States has been slower to R.R., 92 Mass (10 Allen) 368 (1865) . annihilate these archaic distinctions. But, Since that time the majority of American in Kermarec v. Compagnie Generale jurisdictions, including Texas, have Transatlantique, 358 U.S. 625, 630, 79 incorporated [**15] the entrant S. Ct. 406, 3 L. Ed. 2d 550 (1959) , the categorization system into substantive United States Supreme Court recognized tort law. the inadequacies of the classifications It is a system capable of producing and refused to extend the system to anomalies that are at once both absurd admiralty. Id. at 631 . The Court and harsh. Just picture the court of explained that American courts have carved numerous exceptions to the appeals in this case groping for a designation for a ten year old girl who classification system to mitigate its had been forcibly dragged off the street harshness. The Court acknowledged the into an apartment complex. Then, out of system's difficulties: obeisance to this outmoded entrant characterization doctrine, that court Even within a single concluded that little Rhonda was after all jurisdiction, the a trespasser. 675 S.W.2d at 586 . As a classifications and trespasser, Mr. Property's duty to her subclassifications bred by the was simply not to willfully injure her. common law have produced confusion and conflict. As Harsh, yes! Absurd? Substitute the facts

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) new distinctions have been Russell, 125 Tex. 443, 82 S.W.2d 948 spawned, older ones have [Tex. Comm'n App. 1935, opinion become obscured. Through adopted]). this semantic morass the

In 1968, California became the first common law has moved, state to eradicate common law unevenly and with hesitation, distinctions of land entrants. That state's towards "imposing on owners supreme court held that landowners and occupiers a single duty of would be required to exercise ordinary reasonable care in all the care under the circumstances regardless circumstances." of the tort [**18] victim's classification. The California court recognized that the

Id. at 630-31 . entrant's status could affect the liability Exceptions to the classification question but it would only affect liability structure are rampant in the jurisdictions in determining what "ordinary care which still adhere to this system. See under the circumstances" required. The Note, Tort Liability of Owners and court reasoned: [**17] Possessors of Land -- A Single A man's life or limb does Standard of Reasonable Care Under the Circumstances Towards Invitees and not become less worthy of Licensees , 33 Ark. L. rev. 194, 197 protection by the law nor a (1979). Michigan recognizes an loss less worthy of exception for social guests. Preston v. compensation under the law Sleziak, 16 Mich. App. 18, 167 N.W.2d because he has come upon the 477 (1969) . Kentucky modified the land of another without traditional categories by increasing a permission or with permission landowner's duty to known and frequent but without a business trespassers on a limited area. Louisville purpose. Reasonable people & N.R. Co. v. Spoonamore's Adm'r., 278 do not ordinarily vary their conduct depending upon such Ky. 673, 129 S.W.2d 175 (1939) . Texas is no different. In this state, for example, matters, and to focus upon the we have excepted from these status of the injured party as a categorizations attractive nuisances ( trespasser, licensee, or invitee Banker v. McLaughlin, 146 Tex. 434, in order to determine the 208 S.W.2d 843 [1949]); dangerous question whether the conditions obvious to the owner ( State landowner has a duty of care, v. Tennison, 509 S.W.2d 560 [Tex. is contrary to our modern 1974]), and anticipated trespassers if the social mores and landowner engages in a dangerous humanitarian values. The common law rules obscure activity ( Gulf, C & S.F. Ry. Co. v.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) rather than illuminate the Electric Cooperative, Inc., 328 So.2d proper considerations which 367 (La. 1976) , cert. denied , 429 U.S. should govern determination 833, 97 S. Ct. 97, 50 L. Ed. 2d 98 of the question of duty. (1976) ; Ouellette v. Blanchard [**20] ,

116 N.H. 552, 364 A.2d 631 (1976) ; Rowland v. Christian, 69 Cal.2d 108, Basso v. Miller, 40 N.Y.2d 233, 386 70 Cal. Rptr. 97, 443 P.2d 561, 568 N.Y.S.2d 564, 352 N.E.2d 868 (1976) ; and, Webb v. City and Borough of Sitka, (1968) .

561 P.2d 731 (Alaska 1977) . Six Since Rowland , eight other jurisdictions have applied a uniform jurisdictions have held that the invitee, standard of care for invitees and licensee, trespasser categories are not licensees while excluding trespassers. determinative, [*553] and that See Peterson v. Balach, 294 Minn. 161, landowners are [**19] subject to a duty 199 N.W.2d 639 (1972) ; Wood v. Camp, of ordinary care under the 284 So.2d 691 (Fla. 1973) ; Mounsey v. circumstances. Hawaii was the first Ellard, 363 Mass. 693, 297 N.E.2d 43 state to follow California's lead. Holding (1973) ; Antoniewicz v. Reszczynski, 70 that there is no logical relationship Wis.2d 836, 236 N.W.2d 1 (1975) ; between the entrant classifications and O'Leary v. Coenen, 251 N.W.2d 746 the exercise of reasonable care for the (N.D. 1977) ; Poulin v. Colby College, safety of others, Hawaii abolished the 402 A.2d 846 (Me. 1979) . True, many outdated trinity in Pickard v. City and states have rejected abandonment of County of Honolulu, 51 Hawaii 134, 452 premise liability standards, but only P.2d 445 (1969) . Colorado was the next fourteen states have done so by state to institute a standard of reasonable decisions from their courts of last resort. care under the circumstances to avoid harsh results and judicial confusion. In casting aside the premise liability Mile High Fence Co. v. Radovich, 175 classification, the United States Court of Colo. 537, 489 P.2d 308 (1971) . The Appeals for the District of Columbia placed heavy reliance on the decreased District of Columbia soon joined those states casting out the archaic troika. prestige of the landowner in our society. Smith v. Arbaugh's Restaurant, 152 U.S. The court said: App. D.C. 86, 469 F.2d 97 , cert. denied , 412 U.S. 939, 93 S. Ct. 2774, 37 L. Ed. We believe that the 2d 399 (1973) . Five years later, five common law classifications other states had also concluded that the are now equally alien to entrant classification scheme was no modern tort law, primarily longer viable. See Mariorenzi v. Joseph because they establish DiPonte, Inc., 114 R.I. 294, 333 A.2d immunities from liability which no longer [**21] 127 (1975) ; Cates v. Beauregard

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) comport with accepted values [**22] law to adapt to societal, and common experience. economic and moral changes: Perhaps the protection afforded to landowners by Legal classifications such as these rules was once trespasser and licensee are perceived as necessary in judicial creations which view of the sparseness of land should be cast aside when they are no longer useful as settlements, and the inability of owners to inspect or controlling tools for the jury. maintain distant holdings. The The principle of stare decisis prestige and dominance of the was not meant to keep a landowning class in the stranglehold on developments nineteenth century which are responsive to new contributed to the common values, experiences, and law's emphasis on the circumstances. In our opinion, economic and social the time has come to put an importance of free use and end to our total reliance on these common law labels and exploitation of land over and above the personal safety of to allow the finder of fact to those who qualified as focus on whether the trespassers or licensees. landowner has exercised

"reasonable care under all the Smith v. Arbaugh's Restaurant, Inc., circumstances." That standard 469 F.2d at 101 . That court also [*554] contains the flexibility recognized the importance of resource necessary to allow the jury to allocation in our society and decided take account of the infinite that, absent legislative action, the jury is variety of fact situations in the best position to allocate society's which affect the foreseeability of presence and injury, and resources regarding personal injury. Classifying landowner liability decisions the balance of values which as "moral and empirical judgments," the determines the allocation of court reasoned that the community the costs and risks of human representatives which comprise the jury injury. are best qualified to handle these questions. Id. at 102 . Id. at 105 .

Resource allocation was only one of Rather than create further the bases for that court's destruction of refinements and exceptions to the the land entrant categories. The court premise liability doctrine, we should abolish it. The classifications of invitee, also relied on the genius of the common

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) licensee and trespasser are judicial Although R.M.V. entered the Chalmette dinosaurs which served a purpose long apartment complex without Mr. ago when society's values placed great Property's consent or knowledge, it emphasis on a man's [**23] property would be manifestly unjust to classify holdings. That day is gone, and with it her as a trespasser when she was the public-be-damned attitude of J.P. dragged onto the property by a rapist. I Morgan. Today's society places a greater would hold that Mr. Property must act as a reasonable prudent person in emphasis on human safety. In accommodating this modern trend, maintaining its property in a reasonably however, I do not advocate that safe condition in view of all the trespassers who enter with an intent to circumstances, including the likelihood commit a crime be allowed to recover of injury to others, the seriousness of the and would hold that a landowner as a injury, and the burden on the respective matter of law has no duty to such a parties of avoiding the risk. By trespasser other than as currently exists. establishing a duty under these

circumstances, Mr. Property would not This case presents a perfect be an insurer of its property or have to opportunity for casting aside one of the face unreasonable burdens in last remnants of a doctrine whose roots maintaining its property. are founded in the feudal system and which has no place in our modern I am not ready to discard the society. This court should follow the traditional categories of invitee, licensee, modern trend and abolish this antiquated and trespasser because they allow doctrine. For the above reasons, I judicial certainty and predictable respectfully concur. allocations of liability in most cases.

Adoption of an across-the-board Concurring Opinion by Justice standard of reasonable care under the Spears. circumstances would replace a stable I concur in the judgment of the court, and established system of loss allocation but I would not hinge the duty owed to with confusion and possibly inconsistent R.M.V. only on the ordinance. In my and unpredictable rules of law. I am not view Mr. Property's duty to R.M.V. sure that juries can be expected to should not depend solely on the reconcile the multitude of social policies existence of an ordinance or the location implicit [**25] in the assessment of of the apartments within city limits. premises liability. Without the guidance of the categories, juries would be given a

I would be willing to carve an free hand to impose liability without exception to the traditional premises reference to the social policies liability categories of invitee, licensee, underlying the categories; and, if the and trespasser because the categories jury is to be instructed to consider the should not be applied [**24] rigidly. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) former categories, we gain little or at the Landmark Apartments, but nothing by jettisoning them. Gerchberg accomplished in a vacant unit of the v. Loney, 223 Kan. 446, 576 P.2d 593, Chalmette Apartments. The question is 597 (1978) . I am not alone in this answered by determining whether the position. A clear majority of the states alleged negligence of the Chalmette have refused to abandon the common- Apartments and Mr. Property was a law status classifications of invitee, proximate cause of the injury. I would hold that the rape of R.M.V. was not licensee, and trespasser. Annot., 22 A.L.R.4th 294 (1983) . proximately caused by any act or

omission of these defendants as a matter The court has decided this case of law. Rather, the criminal conduct of without creating a new exception to an unknown person in this case was traditional premises liability categories unforeseeable, and a superseding cause. or abandoning them in favor of a Therefore, I dissent. reasonable care under the circumstances test. By hinging the duty owed to CAUSE IN FACT R.M.V. on the ordinance, the court has

The two elements of proximate cause not foreclosed either an exception to or are cause in fact and foreseeability. abandonment of the traditional Clark v. Waggoner, 452 S.W.2d 437, categories in the future. I would retain 439 (Tex. 1970) . In Kerby v. Abilene the categories until we can evaluate the Christian College, 503 S.W.2d 526 (Tex. ramifications of adopting the single 1973) , this court adopted a "but for" test standard of care in light of the results to determine cause in fact. Under Kerby , experienced by states which have the alleged negligence is not a cause in adopted such a standard. fact unless "but for the conduct the accident would not have happened." 503

DISSENT BY: McGEE S.W.2d at [**27] 528 . The majority's analysis of cause in

DISSENT

fact is premised on the fact that R.M.V. [*555] MCGEE, Justice was taken "directly to a vacant OPINION apartment at the Chalmette Apartments." The majority views City of Mobile v. There were [**26] four defendants Largay, 346 So.2d 393 (Ala. 1977) , as a in the trial court. The suit against cause in fact case. The majority states Landmark Apartments and its that in Largay , the assailant did not take management company has been settled. Largay directly to the city museum. It is The question in this cause is whether the upon this basis that the majority attempts Chalmette Apartments and Mr. Property to distinguish Largay . I find Largay Management Company may be held liable for the rape of a minor originating

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) indistinguishable and would follow it in failed to abduct the plaintiff or the present cause. consummate the crime in the plaintiff's

car, merely utilized the nearest available In Largay , the plaintiff was abducted instrumentality. In the event that the city on a public street beside a vacant city museum was locked, the rape may have museum. As Largay was leaving her car, occurred in a temporarily unoccupied an unknown man approached her, pulled automobile, business, or unfenced a knife, and forced her back into her vacant lot. own car. The assailant attempted to start the car and subsequently "dragged her Largay is squarely on point with the down the sidewalk and through an open case at bar in that here, had the rape not cellar door into the vacant city museum occurred in a vacant unit of the building owned by the City of Mobile." Chalmette Apartments, the nearest 346 So.2d at 394 . The Largay court did available place of solitude [**29] would not place "heavy emphasis" on the have afforded a suitable location for the assailant's use of the building as a last crime. Had R.M.V. been abducted from resort. Indeed, the case did not, and a private apartment building and could not, turn on the unknown dragged into an unlocked city pickup truck, would the City of Dallas be liable subjective intent of the assailant. Rather, the Largay court based its opinion on for the rape? had R.M.V. been abducted foreseeability and [**28] held "as a from a city street and dragged into an matter of law, that the use of the unlocked private garage, would the unlocked cellar for perpetration of rape landowner be liable for the rape? Had was not a reasonably foreseeable R.M.V. been abducted from a consequence of the City's failure to neighborhood store and dragged to a maintain the building." 346 So.2d at neighbor's backyard, would the neighbor 395 . (Emphasis in original). Thus, the be liable? I think not. [*556] A missing facts and reasoning of Largay recognize or unlocked door at the Chalmette that the occurrence of the rape in the city Apartments was not a cause in fact of R.M.V.'s rape. Under the facts presented museum was unforeseeable.

here, the criminal's fortuitous choice of Although Largay is premised on venue is not sufficient to satisfy the "but foreseeability and cause in fact was not for" test announced in Kerby . discussed, I view Largay as support for the position that the alleged negligence FORESEEABILITY of the Chalmette Apartments was not a

I would also hold that the rape was cause in fact of the rape. Largay and the not a foreseeable result of the alleged case at bar are distinguished from failure to maintain a properly secured numerous other cases in that both door on a vacant unit of the Chalmette plaintiffs were dragged onto the Apartments. RESTATEMENT premises. In Largay , the rapist, having Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (SECOND) OF TORTS § 448 (1965), (SECOND) (1966) on the provides that an intentional tort or crime shopkeepers [**31] and is not a superseding cause if "the actor at merchants of Texas to the time of his negligent conduct exercise reasonable care to realized or should have realized the discover the sudden criminal likelihood that such a situation might be acts of unknown and created, and that a third person [**30] unidentified persons. . . . might avail himself of the opportunity to commit such a tort or crime." The majority cites Castillo v. Sears Roebuck 663 S.W.2d at 66 . In Walkoviak , the & Co., 663 S.W.2d 60 (Tex. App. -- San plaintiff was assaulted in the parking lot Antonio 1983, writ ref'd n.r.e.); and of the Shamrock Hilton Hotel. The suit Walkoviak v. Hilton Hotels Corp., 580 was premised on Restatement § 344 and S.W.2d 623 (Tex. Civ. App. -- Houston the innkeeper's alleged failure to supply [14th Dist.] 1979, writ ref'd n.r.e.), for adequate security protection or guards. the broad proposition that a tort-feasor's 580 S.W.2d at 625 . Morris v. Barnette, negligence is not excused in the case of 553 S.W.2d 648, 649 (Tex. Civ. App. -- Texarkana, 1977, writ ref'd n.r.e.), and foreseeable criminal conduct. I do not agree with the majority's statement that Eastep v. Jack-in-the-Box, Inc., 546 "Texas courts follow this rule," or S.W.2d 116 (Tex. Civ. App. -- Houston Restatement § 448 in a case such as this. [14th Dist.] 1977, writ ref'd n.r.e.), are

also both grounded on section 344 . Our In Castillo , the plaintiffs were courts of appeals are split on the approached in a Sears store, told to step question of whether a landowner, under outside, and assaulted on the parking lot. section 344 , has a duty to foresee and The Castillo opinion was not based on guard against criminal conduct occurring Restatement § 448 . Rather, the court on the premises. In addition, this court focused on the duty owed to the public has never recognized the application of by a possessor of land who holds the either section 344 or section 448 . premises open to the public for business Therefore, liability due to the criminal purposes. RESTATEMENT OF TORTS acts of unknown third persons is far (SECOND) § 344 (1965). Indeed, the from the settled rule of law which the Castillo court expressly refused to majority suggests. impose liability based on section 344 : The distinction between liability It is our opinion that it based on sections 344 and 448 is would be patently unfair and significant. Under section 344 , the unjust to impose the vague innkeeper or business [**32] owner duty of section 344, who throws his premises open to the public has a higher duty to exercise RESTATEMENT OF TORT

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) reasonable care because of the purpose Neither the apartment owner nor for which the public has entered. It is a manager had knowledge of other significant extension to hold that under instances of crime from which they section 448 , a landowner may be held realized the possibility of rape. liable if he fails to foresee and guard Therefore, the first prong of Restatement against criminal attacks originating off § 448 cannot be the basis for liability in the premises, but accomplished on the this cause. landowner's property. Indeed, section

Thus, the foreseeability issue in this 448 is not limited to landowners, but by cause is reduced to an analysis of the its express terms applies to any negligent second prong of Restatement § 448 . tortfeasor. I would refuse to apply Should the Chalmette Apartments have section 448 in this cause because, realized the possibility that a young girl assuming that it should be adopted, the would be abducted off the premises, criminal attack on R.M.V. was dragged into a vacant apartment, and unforeseeable as a matter of law. raped? Under Restatement § 448 , liability is The majority assigns "deposition imposed only if the actor (1) realized, or testimony that vagrants frequented the (2) should have realized the likelihood area" as one of the two reasons for the of the commission of an intentional tort existence of "a material fact question . . . or crime by a third person. Under the on the foreseeability of this crime." I facts of this cause, neither the realized find the evidence presented in City of nor should have realized prong of Mobile v. Largay to be much more Restatement § 448 has been met. compelling than the facts of the present [*557] The first prong of section [**34] cause. In Largay , the court 448 has not been met because there is no stated that showing in the record that the Chalmette Apartments actually realized the there was some testimony possibility of a rape occurring on its which indicated that prior to this incident the building had premises because of its knowledge [**33] of other specific instances of been broken into on several crime. The president of Mr. Property occasions. According to other stated in a deposition that he was not testimony, "winos" and aware of any specific reported instances derelicts slept in the cellar of crime in the Chalmette Apartments. area of the building; wine and Davis, the owner of Chalmette whiskey bottles littered the Apartments, stated that he was not aware area in and around the of any criminal activity, rapes, assaults, building; and cars parked in or burglaries occurring at the Chalmette the vicinity of the building had been broken into. Apartments prior to the rape of R.M.V.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) Photographs [demonstrated Under the majority's analysis, the owner the] state of disrepair. is chargeable with such knowledge, and

therefore may be held liable for a crime 346 So.2d at 394 . However, in spite of occurring years later on the same these facts, the Largay court held that no premises. "reasonable inference in support of

I view the majority opinion as plaintiff's case on the issue of proximate unsupportable, and indeed, the majority cause" was established as a matter of can cite no case which supports the law. Id. at 395 . I agree with the Largay proposition that knowledge of crimes court that this evidence does not raise a occurring before purchase may be fact issue on foreseeability. imputed to the present landowner. The second reason relied on by the Therefore, the majority analysis is majority for the existence of a fact fundamentally flawed in failing to question is the occurrence of numerous recognize the indisputable proposition instances of prior violent crime at the that the only crimes relevant in this Chalmette Apartments. The majority cause are those occurring after [**36] states that the rape in the present cause the purchase of the Chalmette Apartments in March, 1981. Taken in was foreseeable because in the two years prior to the rape of R.M.V., "one proper context, the record reflects that attempted murder, two aggravated the majority's "litany of prior crimes, robberies, two aggravated assaults, including other violent and assaultive sixteen apartment burglaries, [**35] crime" is reduced to only one "assault," four vehicle burglaries, four cases of for property related burglaries, and one theft, five cases of criminal mischief, case of criminal mischief. and one auto theft" occurred at the

[*558] The "assault" involved a Chalmette Apartments. Deposition dispute between common law spouses in testimony shows that the Chalmette which the husband kicked and choked Apartments were purchased by Davis in the wife, causing minor scrapes and March of 1981. Mr. Property assumed scratches to the body. The wife refused management of the complex on March to press charges. The case of criminal 27, 1981. Crimes which occurred prior mischief involved the removal of a to the purchase and assumption of mailbox door. As a result of the management cannot possibly be imputed burglaries, a total of five television sets, to these defendants so as to put them on four stereos, two radios, one clock, and notice of the possible rape of R.M.V. one telephone were stolen from residents Can it be said that through the purchase of the Chalmette Apartments. With the of a home or building, a landowner is on exception of the intra-family "assault," notice of every crime occurring on the not one of the crimes which occurred premises since the date of construction? after March of 1981 was even remotely Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) concerned with bodily harm. All were issue on foreseeability. The plaintiff was non-assaultive, property related crimes. under a duty to raise a fact issue through No rapes, murders, robberies, evidence of the [**38] existence of aggravated assaults, muggings, or other other crimes of the same general violent conduct indicating a likelihood character as the rape of R.M.V. No such of future personal harm occurred on the evidence was offered. Viewing the premises. plaintiff's evidence in the light most

favorable to her, I find it impossible to Applying the majority's own test, as think that because of the occurrence of a set out in Carey v. Pure Distributing domestic dispute and non-violent Corp., 133 [**37] Tex. 31, 35, 124 property crimes, the Chalmette S.W.2d 847, 849 (1939) , the "general Apartments should have realized the character" of this violent crime could not possibility of a violent rape originating "reasonably have been anticipated" as a off the premises, but accomplished in a result of property crimes or domestic vacant apartment unit. Foreseeability disputes. Property crimes and domestic does not exist in this cause as a matter of disputes are not of the same general law. The trial court correctly granted the character as a rape. Murders, rapes, motion for summary judgment filed by aggravated assaults, assaults, robberies, the Chalmette Apartments and Mr. or other violent crimes between non- Property. family members are crimes of the same general character as the rape of R.M.V. The majority opinion sets dangerous If evidence of other violent crimes was precedent and shuns legal support in included in the summary judgment holding that the plaintiff is entitled to a proof, I might agree that a fact question jury trial. Therefore, I reject the for the jury would exist under Carey . majority's result, as well as the rationale However, there is no evidence of other underlying it. Under the majority crimes of the same general character as opinion, the Chalmette Apartments and the rape of R.M.V. Mr. Property are forced to defend a

lawsuit because the plaintiff has been We have held that the non-movant, in criminally assaulted on its premises. In order to overcome a motion for other cases which are similar to the summary judgment due to the present cause, the plaintiff need only nonexistence of a material fact "must offer proof of repeated incidents of present summary judgment proof when shoplifting, theft, or other property necessary to establish a fact issue." City crime in order to overcome a motion of Houston v. Clear Creek Basin [**39] for summary judgment. This is Authority, 589 S.W.2d 671, 678 (Tex. the evidence offered in the present 1979) . It was "necessary" for the cause. The crimes need not occur at a plaintiff to offer summary judgment time when the defendant owned the proof in this cause establishing a fact Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) property. The crimes need not be of the majority's position that this attack was same general character as that foreseeable. perpetrated upon the plaintiff. Under the

The majority does cite Walkoviak as majority opinion, any crime occurring an example of a case where two on the premises is competent summary robberies in the vicinity of the hotel judgment evidence. The majority established the foreseeability of criminal opinion does great violence to our activity. However, the majority summary judgment practice under Rule overlooks additional facts presented in 166-A and I fear the implications. In Walkoviak . The Walkoviak court Clear Creek , this court stated that "the specifically noted that because the two pre-1978 summary judgment rule had a "victims came or were brought to the chilling effect on the willingness of trial hotel for help, the hotel was then aware courts to utilize the intended benefits of of facts" which gave the hotel specific the procedure. . . . The new rule attempts knowledge of past crimes, and therefore, to encourage the trial court to utilize the made the hotel aware of the likelihood summary judgment in appropriate of future crime on the premises. 580 cases." 589 S.W.2d at 676 . The majority S.W.2d at 626 . Thus, Walkoviak , as well opinion will discourage rather than as four other cases cited by the majority encourage the use of summary are all based on the landowner's actual judgments in appropriate cases such as knowledge of specific instances of crime the one [*559] before us. I cannot agree in the past. See Kline [**41] v. 1500 with such an analysis in the present Massachusetts Avenue Apartment Corp., cause. I will not agree with the 141 U.S.App.D.C. 370, 439 F.2d 477, majority's analysis in the many cases 479 (D.C. Cir. 1970) ("The landlord had which will follow from it. notice of these crimes and had in fact Not one of seven cases cited by the been urged by appellant Kline herself majority is on point or in support of its prior to the events leading to the instant position. No case cited by the majority appeal to take steps to secure the building."); Foster v. Winston-Salem [**40] deals with an off-premises abduction of the plaintiff. No case cited Joint Venture, 303 N.C. 636, 281 S.E.2d by the majority is premised on 36, 40 (1981) ("Defendants Restatement § 448 . No case deals with acknowledged that these incidents had the inference of foreseeable violent been reported and that they were aware crime merely because of the occurrence of them."); Trentacost v. Brussel, 82 N.J. of prior non-violent property crimes and 214, 412 A.2d 436, 439 (1980) (plaintiff domestic disputes. No such cases are at other times "had notified the landlord cited by the majority because City of of the presence of unauthorized persons Mobile v. Largay , the only case which in the hallways. Plaintiff claimed the defendant had promised to install a lock can be cited, stands squarely against the

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) on the front door . . . .") §; and Graham In Butler v. Acme Markets, Inc., 89 v. M & J Corp., 424 A.2d 103, 105-06 N.J. 270, 445 A.2d 1141 (1982) , the (D.C. App. 1980) ("The tenants court held that an assault on the plaintiff frequently complained to the landlord was foreseeable when five muggings about the absence of an outer door lock. were committed during the preceding They explained to the rental agent that four months. However, the facts intruders and strangers entered the foyer presented in Butler [**43] are far from the facts presented in the instant cause. through the open door and committed acts of vandalism . . . [plaintiff] told the The assault suffered by the plaintiff in rental agent of an attempted burglary Butler was of the same general character through her window."). In cases where as the muggings previously occurring on the landowner has actual knowledge, the premises. Therefore, the assault in fewer criminal [**42] acts of the same Butler was foreseeable because the past general character will suffice to make history of muggings made a future the landowner aware of the likelihood of mugging probable and predictable, not a criminal assault. In this cause we do merely conceivable or possible. not have actual knowledge of criminal

[*560] Any injury suffered by a acts. We do not have crimes of the same member of our society may be said to be general character as a rape. We have no possible. Yet, in order for an injury to be crimes from which these defendants compensable, it must to a degree be said should have realized the possibility of to be the probable result of a negligent rape. Therefore, these cases simply have act or omission of the defendant. Indeed, no application in an analysis of the facts the difference between an injury which of this cause. to some degree is probable and one In Drake v. Sun Bank & Trust Co., which is merely possible is the 400 So.2d 569 (Fla. Ct. App. -- 1981), difference between liability and the court merely stated that because of exoneration from liability. The facts in other similar crimes occurring on the this cause demonstrate that it is possible for a young girl to be abducted, dragged property, the landowner should have known of the chance of an assault across a public street, and raped in a against a customer on the premises. vacant unit of the Chalmette Drake is not "instructive" on the point of Apartments. However, I would hold that foreseeability because the court did not this possibility was not to any degree a state the number of other crimes, the probable consequence of the alleged frequency of occurrence, the type or failure to secure an apartment door. The general character of crimes, nor how Chalmette Apartments should not have long the criminal acts had been realized the likelihood of rape merely occurring on the property. because of the occurrence [**44] of a

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) domestic dispute and five prior property in fact nor a foreseeable result of the crimes. alleged negligence of these defendants. I

would hold that proximate cause was I would adhere to the foreseeability disproved as a matter of law because the analysis set out by the court in City of criminal assault by an unknown assailant Mobile v. Largay, 346 So.2d 393 (Ala. was a superseding cause. 1977) . The Largay court held that the criminal assault was unforeseeable as a I would affirm the judgments of the matter of law. The criminal conduct of trial court and court of appeals. an unknown assailant in this cause was

Dissenting Opinion in which Justices also unforeseeable as a matter of law. Wallace and Gonzalez join. The injury to R.M.V. was neither caused Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) SAFETY NATIONAL CASUALTY CORP., AGENT MANUEL LEYVA D/B/A ROCKY BAIL BONDS, Appellant v. THE STATE OF TEXAS NO. PD-0413-07 COURT OF CRIMINAL APPEALS OF TEXAS 273 S.W.3d 157 ; 2008 Tex. Crim. App. LEXIS 641

May 14, 2008, Delivered NOTICE: PUBLISH JUDGES: MEYERS, J., delivered the opinion of the Court, in which KELLER, SUBSEQUENT HISTORY: Rehearing P.J., and PRICE, WOMACK, denied by In re Safety Nat'l Cas. Corp., JOHNSON, KEASLER, HERVEY, 2008 Tex. Crim. App. LEXIS 1004 (Tex. HOLCOMB, and COCHRAN, JJ., Crim. App., Aug. 20, 2008) joined. COCHRAN, J., filed a

concurring opinion. PRIOR HISTORY: [**1] ON APPELLANT'S PETITION FOR OPINION BY: Meyers DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS OPINION

EL PASO COUNTY.

[*158] Appellant, Safety National, Safety Nat'l Cas. Corp. v. State, 225 sought exoneration from the forfeiture of S.W.3d 684, 2006 Tex. App. LEXIS a bond due to the incarceration of the 10305 (Tex. App. El Paso, 2006) defendant. See Article 22.13(a)(5) of the Texas Code of Criminal Procedure. ^[1]

COUNSEL: For APPELLANT: Ken W. The trial court entered a judgment in Good, Tyler, TX. favor of the State for one half the amount of the original bond and entered

For STATE: Arne Schonberger, ASST. findings of fact concluding that Article COUNTY ATTORNEY, El Paso, TX; 22.13 (a)(5) unconstitutionally interferes Jeffrey L. Van Horn, STATE'S with the trial court's discretion and with ATTORNEY, Austin, TX. the finality of judgments. ^[2] Appellant appealed, and the court of appeals

Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) affirmed the judgment of the trial court. felony, at the Safety National v. State, 225 S.W.3d 684 time of or not (Tex. App.--El Paso 2006) . We granted later than the review to consider the constitutionality 270th day of Articles 22.13(a)(5) and 22.16(a) . We after the date hold that the statutes are constitutional of the and remand the cause to the trial court. principal's

failure to 1 Unless otherwise specified, all appear in future references to Articles refer court. to the Texas Code of Criminal Procedure. 2 The relevant [**2] part of FACTS Article 22.13 states:

Appellant posted a $ 10,000 bond on (a) The following causes, and behalf of Willie Guerrero, who was no other, will exonerate the charged [*159] with felony theft and defendant and his sureties, if any, was due to appear for a hearing on March 25, 2004. When a Safety National from liability upon the forfeiture taken: employee learned that Guerrero failed to

appear at the hearing, she located him 5. The incarceration of and informed the court coordinator that the principal in any Guerrero would appear that afternoon. jurisdiction in the United Instead, the coordinator told Appellant States: to bring Guerrero to court the following

morning. Guerrero appeared the (A) in the following morning and gave the trial case of a judge several reasons for his failure to misdemeanor, appear at his scheduled time, including the weather, car trouble, and that he had at the time of or not later forgotten. The trial judge was offended than the 180th by Guerrero's attitude and, [**3] as a day after the result, entered a judgment nisi forfeiting date of the the bond and placed Guerrero in principal's custody. He was later released on a new failure to bond. At the final hearing on the appear in judgment nisi, Appellant argued that it court; or was entitled to exoneration under Code

of Criminal Procedure Article (B) in the 22.13(a)(5) because Guerrero was case of a Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) incarcerated the day after his failure to allowing defendants to wonder [sic] in at appear. The court entered a judgment for a time and date of their own choosing." the State for $ 5,000 plus court costs and entered findings of fact and conclusions 3 See Article V, § 1 ("The judicial of law stating that Article 22.13(a)(5) is power of this State shall be vested unconstitutional. in one Supreme Court, in one Court

of Criminal Appeals, in Courts of The trial court included the following Appeals, in District Courts, in in its findings of fact and conclusions of County Courts, in Commissioners law: Article 22.13(a)(5) affects the Courts, in Courts of Justices of the timing and the finality of judgments and Peace, and in such other courts as interferes with the core powers of the may be provided by law. The court and the administration of justice; Legislature may establish such the statute hampers the discretion of the other courts as it may deem court in controlling the time of trials and necessary and prescribe the judgments because "to avoid multiple jurisdiction and organization post-judgment actions, further tying up thereof, and may conform the its docket, it would have to wait 9 jurisdiction of the district and other months to enter a final judgment" and it inferior courts thereto."); Article V, places virtual time and amount limits out § 8 ("District Court jurisdiction of the discretion of the court; Article V, consists [**5] of exclusive, Sections 1 and 8, of the Texas appellate, and original jurisdiction Constitution ^[3] vest power over bond of all actions, proceedings, and forfeitures in the judicial branch and remedies, except in cases where Article 22.13(a)(5) [**4] interferes with exclusive, appellate, or original that power; the stated purpose of a bond jurisdiction may be conferred by is to have an orderly docket by having this Constitution or other law on defendants appear on time and for some other court, tribunal, or sureties to assist with that-to allow a administrative body. District Court defendant to interfere with the court's judges shall have the power to docket by not showing up for trial issue writs necessary to enforce "without forfeiture of any portion of the their jurisdiction.The District Court bond would cause future, similar shall have appellate jurisdiction behavior by the defendants in this case and general supervisory control and by other Sureties and accused over the County Commissioners persons"; and, taking away "discretion to Court, with such exceptions and order payment of all or part of a bond under such regulations as may be vitiates the purpose of a bond and would prescribed by law."). create havoc with the Court's calendar, Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) Appellant appealed, arguing that the attached to either of the others, trial court's failure to exonerate was except in the instances herein error and that the legal conclusions expressly permitted." regarding Article 22.13(a)(5) were

Appellant filed a petition for erroneous. The court of appeals discretionary review asking us to overruled these arguments and determine whether the court of appeals considered only Appellant's argument properly found that article 22.16(a) of that it was entitled to mandatory the Texas Code of Criminal Procedure is remittitur under Article 22.16(a) because unconstitutional based on a violation of Guerrero was released on a new bond in the separation-of-powers provision in [*160] the case. The court of appeals the Texas Constitution. We additionally held that the current version of Article granted review on our own motion to 22.16(a) violates Article II, section 1, of determine whether article 22.13(a)(5) of the Texas Constitution ^[4] because it the Texas Code of Criminal Procedure is provides for mandatory remittitur at any [**7] unconstitutional based on a time prior to final judgment if the violation of the separation-of-powers defendant principal is released on new provision in the Texas Constitution. bail [**6] in the case or the case for which bond is given is dismissed. In

ARGUMENTS OF THE PARTIES

doing so, the legislature has removed the Appellant argues that articles 22.13 trial court's discretion to remit the bond and 22.16 do not order a trial court to in the event new bail is given or the alter a final judgment and do not tell the criminal case is dismissed. Safety trial court when it can enter a final National, 225 S.W.3d 684, 691-92 . judgment. Rather, Article 22.13 provides affirmative defenses for the surety, and

4 Article II, § 1 , discusses the Article 22.16 sets out the limited Division of Powers and states, situations wherein the surety may seek "The powers of the Government of remittitur of the bond prior to final the State of Texas shall be divided judgment. Even after final judgment, into three distinct departments, Chapter 22 allows a special procedure each of which shall be confided to under which the surety may seek the a separate body of magistracy, to return of a portion of the bond amount. wit: Those which are Legislative to See Article 22.17 . The legislature one; those which are Executive to amended Chapter 22 in 2003, removing another, and those which are the limitations on the trial court's ability Judicial to another; and no person, to enter a final judgment and setting out or collection of persons, being of the situations in which a bondsman is one of these departments, shall entitled to a full remittitur if the request exercise any power properly is made while the court has jurisdiction Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) over the case. The time limits in Article who are on bond and fail to appear or 22.13(a)(5) apply to the surety, not to build more jails to hold those who are the trial court. They are an expiration not released on bond. date on the surety's ability to use the

The State argues that, through defense that the principal is incarcerated, Articles 22.13(a)(5) and 22.16 , "the not a mandate telling the state when to Legislature told the Court what enter a judgment; thus, the time periods judgment it must enter and in so doing do [**8] not prevent the trial court from has improperly exercised power reserved entering a final judgment at any time. to the judicial branch of government to Article 22.16 also does not place time hear controversies and apply discretion limits or restrictions on a trial court's to determine the amount of the ability to enter a final judgment. It judgment" and "by requiring a zero provides for mandatory remittitur prior judgment in all cases, no matter what the to the entry of the final judgment only in circumstances, (i.e. the amount of the the limited situation of the principal bond, the reason for missing court and being released on new bail in the case or the delay caused), the Legislature is if the case is dismissed, and for improperly usurping a judicial function." discretionary remittitur for good cause This removes the court's power to shown. consider facts related to the reason for The time limits in the statutes simply the failure to appear and to enter a place the burden on bondsmen to file a judgment based on those facts. Courts motion for remittitur while the court still are also prevented by Article 22.13(a)(5) has jurisdiction over the case and do not from entering a judgment for nine place restrictions on the court's ability to months because there is no guidance for enter judgment, therefore, the statutes do the court concerning situations wherein not violate the separation-of-powers a final judgment is given prior to nine doctrine of the Texas Constitution. months and the defendant is returned Finally, Appellant argues that the after the judgment but before the nine months have expired. This interferes legislature has indicated an intent to reward bondsmen who assist the state in with the court's ability to control its returning to custody principals who fail docket because the court's judgment to appear, because the purpose of bail is would not actually be final until 270 to secure the presence of the accused, days [**10] had passed since, even if not to be a revenue device or to be final judgment were entered, it would be punitive or to substitute for [*161] a nullified or would have to be reformed if fine. Without bondsmen, the court the defendant became incarcerated dockets would be even worse, and the within that time period. The State claims state would either have to hire more that subsequent appearance should not exonerate a forfeiture because that officers to seek out defendants [**9]

Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) would allow defendants to keep missing legislature amended Article 22.16 in hearings until there are no witnesses or 2003 and moved the section that evidence against him, and therefore, addressed the principal's incarceration to there should be a penalty for failure to Article 22.13 . In Armadillo Bail Bonds appear at the designated time. Complete v. State 802 S.W.2d 237 remission of the forfeiture would mean (Tex.Cr.App.,1990) , State v. Matyastik, that the defendant is not really bound to 811 S.W.2d 102 (Tex. Crim. App. 1991) , and Lyles, we held that the former appear and can create continuances at will. Because the court has the discretion statute was unconstitutional. to set the amount of the bail, and the

Considering the former version of purpose of a bond is to assure the Article 22.16 , which placed time fulfillment of an obligation to appear in restrictions upon when a final judgment court and to pay a penalty if that could be entered, ^[5] Armadillo held that obligation is not fulfilled, the State the restrictions [*162] on the court's asserts that it violates the separation-of- right to determine when to decide a case powers doctrine for the Legislature to violated the separation-of-powers make the bond unenforceable through provision of the Texas Constitution. We forced exoneration and for the surety to stated, "We have held repeatedly that the have the same risk whether the court sets separation of powers provision may be a high or low bond. As such, the violated in either of two ways. First, it Legislature has made failure to appear [**12] is violated when one branch of an offense without a penalty, which government assumes, or is delegated, to interferes with the orderly processes of whatever degree, a power that is more the courts. The State points out that, in 'properly attached' to another branch. [**11] Lyles v. State, 850 S.W.2d 497, The provision is also violated when one 501 (Tex. Crim. App. 1993) , this Court branch unduly interferes with another said that the old statute requiring branch so that the other branch cannot mandatory remittitur at any time prior to effectively exercise its constitutionally final judgment removed a trial court's assigned powers." Armadillo, 802 discretion. Under the same reasoning, S.W.2d at 239 (internal citations forcing a court to enter a zero judgment omitted) (emphasis in original). We against a bond also violates separation of explained that the judicial branch has the powers. power to hear evidence, decide issues of fact, decide questions of law, enter a

CASE LAW

final judgment on the facts and the law, The former version of Article 22.16 and execute the final judgment or encompassed both the issues of the sentence, and the Legislature has principal's incarceration and the authority over judicial administration, as principal's release on new bail. The long as it does not infringe upon the

Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) substantive power of the judicial branch. jurisdiction and the Id. at 239-240 . In Matyastik, we incarceration is verified extended our holding in Armadillo, as provided by eliminating the time restrictions in Subsection (b) of this Article 22.16(c) and determining that article; remittitur may occur anytime between

(3) the principal is forfeiture and the entry of a final released on new bail in judgment. Matyastik, 811 S.W.2d at 104 . the case; We considered this issue again in Lyles (4) the principal is v. State and held that the mandatory deceased; or remittitur provisions of Article 22.16 are void, but because Article 22.16(d)

(5) the case for which allows the trial court to [**13] remit all bond was given is or part of the bond at the court's dismissed. discretion prior to the entry of a final judgment, that subsection does not

(b) For the purposes of Subsection violate the separation-of-powers. 850 (a)(2) of this article, a surety may S.W.2d at 501 . request confirmation of the incarceration of his principal by 5 Former Article 22.16 stated: written request to the law enforcement agency of the county

(a) After forfeiture of a bond where prosecution is pending. A and before the expiration of the law enforcement agency [**14] in time limits set by Subsection (c) of this state that receives a request for this article, the court shall, on verification shall notify the court in written motion, remit to the surety which prosecution is pending and the amount of the bond after the surety whether or not the deducting the costs of court, any principal is or has been reasonable costs to the county for incarcerated in another jurisdiction the return of the principal, and the and the date of the incarceration. interest accrued on the bond amount as provided by Subsection

(c) A final judgment may be (e) of this article if: entered against a bond not earlier than:

(1) the principal is incarcerated in the

(1) nine months after county in which the the date the forfeiture prosecution is pending; was entered, if the offense for which the

(2) the principal is incarcerated in another Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) bond was given is a ultimately appearing in [*163] court misdemeanor; or because bondsmen would have a

financial incentive to produce the (2) 18 months after principal many weeks after he or she the date the forfeiture originally failed to appear in court . . . was entered, if the [and] would give bondsmen consistency offense for which the for principals who were incarcerated, bond was given is a while allowing a judge to adjust the time felony. period as needed in a particular case."

SENATE COMM. ON CRIMINAL

(d) After the expiration of the time

JURISPRUDENCE, BILL ANALYSIS,

limits set by Subsection (c) of this Tex. S.B. 1336, 78th Leg., R.S. (2003). article and before the entry of a final judgment against the bond, As we stated in State v. Sellers, 790 the court in its discretion may remit S.W.2d 316, 321 (Tex. Crim. App. 1990) , to the surety all or part of the a judgment nisi alone does not authorize amount of the bond after deducting recovery of a bond amount by the State. the costs of court, any reasonable A judgment nisi is a provisional costs to the county for the return of judgment that is not final or absolute, the principal, and the interest but may become final. See Article 22.14 . accrued on the bond amount as Nisi means "unless," so a judgment nisi provided by Subsection (e) of this is valid unless a party shows cause why article. it should be withdrawn. In the case

before us, Appellant argues that there (e) For the purposes of this are two reasons that the judgment should article, interest accrues on the bond be withdrawn. First, the [**16] amount from the date of forfeiture defendant was incarcerated the day after in the same manner and at the same his initial failure to appear, which, under rate as provided for the accrual of Article 22.13(a)(5) , triggers exoneration prejudgment interest in civil cases. from the forfeiture of the bond. Second, the defendant was released on new bond

ANALYSIS

in the same case after he was arrested on In discussing [**15] the reasons for the warrant resulting from the judgment the 2003 amendments to Articles 22.13 nisi, which is a reason for remittitur and 22.16 , the Legislature stated that, prior to final judgment under Article "the state is more interested in having 22.16 (a) . the defendant appear than in receiving The State reads Article 22.13(a)(5) to forfeited bond money. Setting time mean that the court cannot enter a final limits on when bonds would be forfeited judgment for nine months because then would result in more defendants it would have "multiple post-judgment Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) actions" if the defendant returned after has been dismissed. It makes sense that final judgment but within nine months when a new bond is issued in a case, the after his failure to appear. However, old bond should be remitted; this does Article 22.13 does not say that the trial not mean that a defendant can be on court must wait until the time in bond somewhere else for some other subsection (a)(5) lapses to enter a final case and be entitled to full remittitur. judgment. The statute does not prohibit Both Articles 22.13 and 22.16 require the entry of a judgment or dictate when remittitur only in specific, limited the judgment must be entered. In fact, situations--situations in which the return Article 22.13 says nothing about the of the defendant is certain (because the entry of a final judgment--it simply defendant [**18] is incarcerated provides the surety with a defense if the elsewhere), the return is secured by defendant is incarcerated within nine another bond in the same case, or the months after he fails to appear. If that return is unnecessary (because the case

has been dismissed). ^[6] term ends before the court enters a final judgment on the bond, under Article 22.13 , the court must remit the amount 6 We note that there are other of [**17] the bond. situations in the Code of Criminal

Procedure in which the legislature The State also implies that Article has limited the circumstances 22.13(a)(5) is triggered by the under which courts may provide a defendant's incarceration, whether or not requested remedy. For example, in he is returned, and that he will be Articles 11.07, § 4 and 11.071, § 5 , exonerated without ever appearing in the legislature tells us under what court, stating that " Article 22.13(a)(5) limited conditions we may consider requires a zero judgment regardless of a subsequent application for writ of the crime for which the defendant is habeas corpus. arrested and without the actual return of the Defendant-Principal to the County of [*164] The point of Article his prosecution." (Emphasis in 22.13(a)(5) is that, if the defendant is Respondent's Brief on the Merits). This incarcerated when or shortly after he is simply incorrect. As specifically failed to appear, securing his return to stated in Article 22.13(b) , a surety appear is quite easy and does not require exonerated under subsection (a)(5) the assistance of a bondsman. Because remains obligated to pay costs incurred the county would incur the cost to by a county to secure the return of the transfer the defendant from another principal. Similarly, the court must remit jurisdiction, Article 22.13(b) makes the the amount of the bond under Article surety liable for any costs incurred by 22.16 if the defendant has been given the county to secure the return of the new bond in the same case or the case defendant. But the statute does not

Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) require a court to wait nine months can require a cash-only bond in lieu of a before entering a final judgment, and surety bond. See Article 23.05(a) . And thus, does not interfere with a court's bail is not intended to be punitive or to timing or finality of judgments. In this be a revenue device. Bail bonding is a case, Guerrero was returned the day business; therefore, having to pay court after his failure to appear and was in costs and interest for the time during court prior [**19] to the forfeiture of which a defendant fails to appear is incentive for the bondsman to secure the the bond. He was placed in custody at attendance of the defendant at his the same time the court entered the judgment nisi forfeiting the bond. And scheduled hearing. The surety does not Appellant requested remittitur under have the same risk when the court sets a Article 22.13 prior to the entry of final high bail as it has when the court sets a judgment. Therefore, the State's low one, because a high bond has higher hypothetical regarding Article 22.13 interest for the time it takes the surety to forcing the trial court to wait nine return the defendant. months before entering judgment does not apply to this situation. CONCLUSION

We disagree with the State's Articles 22.13 and 22.16 do not argument that there is no guidance for interfere with the trial court's ability to the court concerning situations wherein enter final judgment, nor do they dictate a final judgment is given prior to nine the time frame within which a trial court months and the defendant is returned may enter a final judgment. The statutes after the judgment but before the nine do not violate the separation-of-powers months have expired. Article 22.17 doctrine and thus are not specifically allows for a special bill of unconstitutional. The decision of the review up to two years after a final court of appeals is reversed, and the judgment has been entered, which may cause is remanded to the trial court. include a request that all or part of the

Meyers, J. forfeited bond be returned. The State is Delivered: May 14, 2008 also incorrect that complete remission of the forfeiture would mean that the

Publish defendant is not really bound to appear and can create continuances at will and

CONCUR BY:

COCHRAN that the Legislature has made failure to appear an offense without a penalty.

CONCUR

There are penalties, such as contempt COCHRAN, J., filed a concurring and additional criminal charges, that can opinion. be pursued to punish a defendant for failure [**20] to appear, or the court

Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008) notes, "Bail bonding is a business[.]" ^[1]

OPINION

Indeed it is. To the extent that the The State discusses several valid interests of the bail bond business and reasons why Article 22.13 , dealing with the needs of the criminal justice system the exoneration of a bail bond, may are not on the same track, local and state [**21] be a counterproductive statute governments are free to make that ties the hands of judges and thwarts appropriate adjustments. Courts do not the purpose of having a surety in the first decide the wisdom of such laws, they place. Nonetheless, I agree with the decide only their constitutionality. majority that these deficits do not rise to the level of an unconstitutional [*165]

1 Majority Op. at 13. violation of the separation-of-powers doctrine. These are matters that are best I therefore join the majority opinion. left to the Legislature and to local

Filed: May 14, 2008 governments that may increase their Publish reliance upon non-profit Pretrial Services programs. The majority aptly

State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991) STATE OF TEXAS, APPELLANT v. BOB MATYASTIK, ET AL., Appellees No. 632-90

COURT OF CRIMINAL APPEALS OF TEXAS

811 S.W.2d 102 ; 1991 Tex. Crim. App. LEXIS 90

May 8, 1991, Delivered PRIOR HISTORY: [**1] Petition This is a criminal bail bond forfeiture for Discretionary Review from the Tenth case. The State petitioned this Court for Court of Appeals; Robertson County. review on four grounds, two of which we granted, to-wit: 1) to determine whether the court of appeals erred in

COUNSEL: Attorney for appellant: finding Art. 22.16, V.A.C.C.P. , Jimmie McCullough, D. A. & Dale constitutional; and 2) to determine Freeman, Asst. D. A., Franklin, Texas. whether the court of appeals erred in affirming the trial court's remittitur of a

Attorneys for appellee: Jane Matyastik final judgment without a bill of review Vorwerk, Taylor, Texas, Bob Matyastik, or proper appellate procedure. Because pro se, Cameron, Texas. we find Art. 22.16(a) and (c)(1), V.A.C.C.P., unconstitutional we will

Attorney for State: Robert Huttash, reverse the court of appeals. State's Attorney, Austin, Texas. Herbert Clifton Sheeley, charged with the misdemeanor of violation of JUDGES: En Banc. Miller, Judge. probation on an original charge of Campbell, Judge, not participating. driving while intoxicated, [*103] failed to appear for [**2] trial on January 22,

OPINION

1988. The trial court then rendered a judgment nisi for $ 2,500, the bond

[*102] OPINION ON STATE'S amount, against the principal, Herbert

PETITION FOR DISCRETIONARY

Sheeley, and Bob Matyastik and Dolores

REVIEW

State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991) Sheeley, sureties. On June 27, 1988, . . . appellees filed a motion for remittitur

(4) the principal is deceased; . . . Art. pursuant to Art. 22.16, V.A.C.C.P. , 22.16(c) provides: alleging that the principal, Herbert (c) A final judgment may be entered Sheeley, had died on May 23, 1988, against a bond not earlier than: citing Art. 22.16(a)(4). Additionally, appellant requested remittitur based on

(1) nine months after the date the the fact that the offense was a forfeiture was entered, if the offense for misdemeanor and less than nine months

which the bond was given is a had passed since the bond forfeiture. misdemeanor; or Art. 22.16(c)(1). The trial court ordered (2) 18 months after the date the remittitur on June 27, 1988. The State forfeiture was entered, if the offense for petitioned the trial court to vacate the which the bond was given is a felony. order, which was denied. The State appealed the order of 1 Points one and two asserted that remittitur to the Tenth Court of Appeals the trial court erred in granting the raising sixteen points of error. ^[1] The remittitur order on June 27 because court of appeals overruled all sixteen the trial court lacked jurisdiction, points and affirmed the judgment of the

the judgment having become final trial court in an unpublished opinion. on June 20. Points three through State v. Matyastik, et al., (Tex.App. -- six alleged insufficient evidence of Waco, No. 10-88-162-CV, delivered the death of the principal on the January 25, 1990). The critical question bond. Points seven through raised in the court of appeals and in this fourteen alleged that Art. 22.16, Court is the constitutionality of Art. V.A.C.C.P. , was unconstitutional as 22.16, V.A.C.C.P. Specifically, two a violation of the separation of sections of the statute are in issue. Art. powers. Points fifteen and sixteen [**3] 22.16(a) provides in pertinent asserted trial court error in not part: giving credence to the State's claim for recovery on a contract theory if (a) After forfeiture of a bond and the remittitur question was before the expiration of the time limits resolved in appellant's favor. set by Subsection (c) of this article, the court shall, on written motion, remit to

[**4] The court of appeals found the surety the amount of the bond after Art. 22.16 constitutional in its entirety. deducting the costs of court, any This Court, however, has since found reasonable costs to the county for the Art. 22.16(c)(2) unconstitutional as a return of the principal, and the interest violation of the separation of powers accrued on the bond amount as provided provision of the Texas Constitution. by Subsection (e) of this article if:

State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991) TEX.CONST.art. 2, § 1 . ^[2] See Armadillo S.W.2d at 240 . In analyzing the statutory Bail Bonds v. State, 802 S.W.2d 237 interference with the judiciary's "core (Tex.Cr.App. 1990) . power" [to enter final judgments], the

Court reasoned " . . . if Article 2 Article 2, § 1 of the Texas 22.16(c)(2) is valid, then the Legislature Constitution provides: has the power to render the Judiciary

impotent with respect to the entry of The powers of the Government final judgments." Id. at 241 . of the State of Texas shall be divided into three distinct

3 The court of appeals in departments, each of which shall Armadillo Bail Bonds noted that be confided to a separate body of "nothing prevents the legislature magistracy, to wit: Those which from imposing an interminable are Legislative to one, those which delay in obtaining final judgment." are Executive to another, and those Armadillo Bail Bonds v. State, 772 which are Judicial to another; and S.W.2d 193, 197 (Tex.App. -- no person, or collection of persons, Dallas 1989) (emphasis supplied). being of one of these departments, See Armadillo Bail Bonds, 802 shall exercise any power properly S.W.2d at 239 . attached to either of the others, except in the instances herein [**6] As this Court noted, the expressly permitted. separation of powers provision may be

violated when one branch exercises In Armadillo Bail Bonds this Court power that is more appropriately held that the statute prohibiting entry of connected with another branch or when a final judgment in a bail bond forfeiture one branch unduly interferes with felony case until 18 months after [**5] another to the extent that the other entry of forfeiture [Art. 22.16(c)(2) branch cannot effectively exercise its unduly interfered with the judiciary's constitutional powers. See Armadillo effective exercise of its constitutionally Bail Bonds, 802 S.W.2d at 239 and cases assigned power to enter final judgments. cited therein. Article 22.16(c)(2) ^[3] See TEX.CONST.art. 5, § 1 (judicial restrained the court from entering a final power constitutionally vested in certain judgment in that case, a felony, for at courts). This Court has envisioned such least a period of 18 months, thereby power to include inter alia the entry of a interfering with the judiciary's "core final judgment on the facts and the law power" of entering a final judgment. and the execution of a final judgment Thus, the Court held the statute [*104] or sentence. Kelley v. State, 676 unconstitutional because it violated the S.W.2d 104, 107 (Tex.Cr.App. 1984) and separation of powers provision of the cases cited therein. We reaffirmed this State Constitution in that the statute concept in Armadillo Bail Bonds, 802 State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991) allowed the legislature to usurp a of a statute does not necessarily destroy judicial function. Id. the whole act). See also Meshell v. State,

739 S.W.2d 246 (Tex.Cr.App. 1987) The case sub judice deals with a (separation of powers case discussing misdemeanor and thus activates section severability of statutes). We [**8] note (c)(1) of the statute, which prohibits the that subsection (a) is contingent upon the court from entering a final judgment in time limitations established in such a case for a nine month time subsection (c), and thus has no effect period. Comparatively, Armadillo Bail without the invalid provisions. Recently Bonds was a felony case with an 18- we stated in Jones that " . . . should part month time restriction, while the case at of the bill be held invalid . . . 'the bar involves a misdemeanor with a nine- remainder of the statute must be month time limit. We find the reasoning sustained if it is complete in itself and with [**7] regard to section (c)(2) in capable of being executed in accordance Armadillo Bail Bonds applicable to the with the intent wholly independent of situation in the case at bar with regard to that which has been rejected.'" Id., slip section (c)(1), since both sections op. at 2, quoting Tussey v. State, 494 concern a legislatively imposed statutory S.W.2d 866, 870 (Tex.Cr.App. 1973) . restraint on a trial court's ability to Because subsection (a) cannot be utilize its power to enter final executed or have any effect without judgments. We thus extend the utilizing the provisions of subsection (c), Armadillo Bail Bonds ruling to apply in we hold that the portion of Art. 22.16(a), misdemeanor cases, and therefore hold V.A.C.C.P. , utilizing subsection (c) is Art. 22.16(c)(1), V.A.C.C.P. , invalid under Article 2, § 1 of the Texas unconstitutional. Constitution. ^[5] Thus, remittitur now may Having determined that Art. be done anytime between forfeiture and 22.16(c)(1) and (2) unduly interfere with entry of a final judgment. The State's the court's exercise of the judicial first ground for review is sustained. function, we now examine whether the same is true of Art. 22.16(a), which

4 Section 311.032(c) of the Code provides in pertinent part: (a) After Construction Act reads as follows: forfeiture of a bond and before the (c) In a statute that does not expiration of the time limits set by contain a provision for severability Subsection (c) of this article, the court or nonseverability, if any provision shall . . . (emphasis added). It is well of the statute or its application to settled that if one part of a statute is held any person or circumstance is held unconstitutional, the remainder of the invalid, the invalidity does not statute continues to be valid. Tex. Gov't affect other provisions or Code Ann. § 311.032(c) . ^[4] Ex parte applications of the statute that can Jones, 803 S.W.2d 712 (invalidity of part State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991) be given effect without the invalid provision or application, and to this end the provisions of the statute are severable.

[**9] 5 Although I dissented in Armadillo Bail Bonds, I strongly adhere to the doctrine of "stare decisis," which leads to the ruling in the instant case.

[*105] Having decided the constitutional issue in the case at bar, we need not address the State's second ground for review. The judgment of the court of appeals is reversed and the remittitur order of the trial court is vacated.

LexisNexis (R) Texas Annotated Statutes Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. *** This document is current through the 2013 3rd Called Session *** CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965 ARREST, COMMITMENT AND BAIL CHAPTER 17. BAIL Art. 17.01. Definition of "Bail" "Bail" is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966. Art. 17.02. Definition of "Bail Bond" A "bail bond" is a written undertaking entered into by the defendant and the defendant's sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation; provided, however, that the defendant on execution of the bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this article shall be receipted for by the officer receiving the funds and, on order of the court, be refunded, after the defendant complies with the conditions of the defendant's bond, to:

(1) any person in the name of whom a receipt was issued, in the amount reflected on the face of the receipt, including the defendant if a receipt was issued to the defendant; or

(2) the defendant, if no other person is able to produce a receipt for the funds. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966; am. Acts 2011, 82nd Leg., ch. 978 (H.B. 1658), § 1, effective September 1, 2011. Art. 17.08. Requisites of a Bail Bond A bail bond must contain the following requisites:

1. That it be made payable to "The State of Texas"; 2. That the defendant and his sureties, if any, bind themselves that the

defendant will appear before the proper court or magistrate to answer the accusation against him;

3. If the defendant is charged with a felony, that it state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state that he is charged with a misdemeanor;

4. That the bond be signed by name or mark by the principal and sureties, if any, each of whom shall write thereon his mailing address; 5. That the bond state the time and place, when and where the accused binds himself to appear, and the court or magistrate before whom he is to appear. The bond shall also bind the defendant to appear before any court or magistrate before whom the cause may thereafter be pending at any time when, and place where, his presence may be required under this Code or by any court or magistrate, but in no event shall the sureties be bound after such time as the defendant receives an order of deferred adjudication or is acquitted, sentenced, placed on community supervision, or dismissed from the charge;

6. The bond shall also be conditioned that the principal and sureties, if any, will pay all necessary and reasonable expenses incurred by any and all sheriffs or other peace officers in rearresting the principal in the event he fails to appear before the court or magistrate named in the bond at the time stated therein. The amount of such expense shall be in addition to the principal amount specified in the bond. The failure of any bail bond to contain the conditions specified in this paragraph shall in no manner affect the legality of any such bond, but it is intended that the sheriff or other peace officer shall look to the defendant and his sureties, if any, for expenses incurred by him, and not to the State for any fees earned by him in connection with the rearresting of an accused who has violated the conditions of his bond. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), effective January 1, 1966; am. Acts 1999, 76th Leg., ch. 1506 (S.B. 403), § 1, effective September 1, 1999.

LexisNexis (R) Texas Annotated Statutes Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. *** This document is current through the 2013 3rd Called Session *** CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965 AFTER COMMITMENT OR BAIL AND BEFORE THE TRIAL CHAPTER 22. FORFEITURE OF BAIL Art. 22.10. Scire Facias Docket When a forfeiture has been declared upon a bond, the court or clerk shall docket the case upon the scire facias or upon the civil docket, in the name of the State of Texas, as plaintiff, and the principal and his sureties, if any, as defendants; and, except as otherwise provided by this chapter, the proceedings had therein shall be governed by the same rules governing other civil suits. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966; am. Acts 1981, 67th Leg., ch. 312 (S.B. 727), § 3, effective August 31, 1981; am. Acts 1999, 76th Leg., ch. 1506 (S.B. 403), § 4, effective September 1, 1999. Art. 22.13. Causes Which Will Exonerate (a) The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:

1. That the bond is, for any cause, not a valid and binding undertaking in law. If it be valid and binding as to the principal, and one or more of his sureties, if any, they shall not be exonerated from liability because of its being invalid and not binding as to another surety or sureties, if any. If it be invalid and not binding as to the principal, each of the sureties, if any, shall be exonerated from liability. If it be valid and binding as to the principal, but not so as to the sureties, if any, the principal shall not be exonerated, but the sureties, if any, shall be.

2. The death of the principal before the forfeiture was taken. 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.

4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.

5. The incarceration of the principal in any jurisdiction in the United States: (A) in the case of a misdemeanor, at the time of or not later than the 180th

day after the date of the principal's failure to appear in court; or (B) in the case of a felony, at the time of or not later than the 270th day after the date of the principal's failure to appear in court. (b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs of court, any reasonable and necessary costs incurred by a county to secure the return of the principal, and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal's incarceration. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966; am. Acts 2003, 78th Leg., ch. 942 (S.B. 1336), § 1, effective June 20, 2003. Art. 22.16. Remittitur After Forfeiture (a) After forfeiture of a bond and before entry of a final judgment, the court shall, on written motion, remit to the surety the amount of the bond, after deducting the costs of court and any reasonable and necessary costs to the county for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (c) if the principal is released on new bail in the case or the case for which bond was given is dismissed.

(b) For other good cause shown and before the entry of a final judgment against the bond, the court in its discretion may remit to the surety all or part of the amount of the bond after deducting the costs of court and any reasonable and necessary costs to the county for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (c).

(c) For the purposes of this article, interest accrues on the bond amount from the date of forfeiture in the same manner and at the same rate as provided for the accrual of prejudgment interest in civil cases. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966; am. Acts 1981, 67th Leg., ch. 312 (S.B. 727), § 5, effective August 31, 1981; am. Acts 1987, 70th Leg., ch. 1047 (S.B. 185), § 3, effective June 20, 1987; am. Acts 2003, 78th Leg., ch. 942 (S.B. 1336), § 2, effective June 20, 2003. Art. 22.17. Special Bill of Review (a) Not later than two years after the date a final judgment is entered in a bond forfeiture proceeding, the surety on the bond may file with the court a special bill of review. A special bill of review may include a request, on equitable grounds, that the final judgment be reformed and that all or part of the bond amount be remitted to the surety, after deducting the costs of court, any reasonable costs to the county for the return of the principal, and the interest accrued on the bond amount from the date of forfeiture. The court in its discretion may grant or deny the bill in whole or in part.

(b) For the purposes of this article, interest accrues on the bond amount from the date of: (1) forfeiture to the date of final judgment in the same manner and at the same rate as provided for the accrual of prejudgment interest in civil cases; and (2) final judgment to the date of the order for remittitur at the same rate as provided for the accrual of postjudgment interest in civil cases. HISTORY: Enacted by Acts 1987, 70th Leg., ch. 1047 (S.B. 185), § 4, effective June 20, 1987.

LexisNexis (R) Texas Annotated Statutes Copyright © 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. *** This document is current through the 2013 3rd Called Session *** CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965 APPEAL AND WRIT OF ERROR CHAPTER 44. APPEAL AND WRIT OF ERROR Art. 44.42. Appeal on Forfeitures An appeal may be taken by the defendant from every final judgment rendered upon a personal bond, bail bond or bond taken for the prevention or suppression of offenses, where such judgment is for twenty dollars or more, exclusive of costs, but not otherwise. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966. Art. 44.44. Rules in Forfeitures In the cases provided for in the two preceding Articles, the proceeding shall be regulated by the same rules that govern civil actions where an appeal is taken or a writ of error sued out. HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective January 1, 1966.

Texas Rules Copyright (c) 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. *** This document is current through April 8, 2015 *** STATE RULES TEXAS RULES OF CIVIL PROCEDURE PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS SECTION 8. Pre-Trial Procedure Tex. R. Civ. P. 166a (2015) Rule 166a Summary Judgment (a) For Claimant. --A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.

(b) For Defending Party. --A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. --The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

(d) Appendices, References and Other Use of Discovery Not Otherwise on File. --Discovery products not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.

(e) Case Not Fully Adjudicated on Motion. --If summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the judge may at the hearing examine the pleadings and the evidence on file, interrogate counsel, ascertain what material fact issues exist and make an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just.

(f) Form of Affidavits; Further Testimony. --Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

(g) When Affidavits Are Unavailable. --Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(h) Affidavits Made in Bad Faith. --Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

(i) No-Evidence Motion. --After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

NOTES

[1] CR 4,5.

[2] CR 4,5. -2-

[3] CR 4.

[4] CR 4.

[5] CR 4.

[6] CR 14.

[7] CR 9-13. -3-

[8] CR 16-23.

[9] CR 24-25. -4-

[10] Appellant’s Brief at p. 5. -6-

[11] The State argued that article 22.13.(a)(5) is unconstitutional because it effectively prohibits the entry of a judgment for 180 days (or 270 days for a felony). To fully understand and appreciate the issue facing the Court, one must know a bit of the history of articles 22.13 and 22.16. Prior to June 2003, article 22.13 listed four situations, not including incarceration, in which the principal and the surety would be completely exonerated from liability for a bond forfeiture. Article 22.16, on the other hand, provided five situations, including the principal’s incarceration, where the surety’s liability would be limited to court costs, return costs, and interest on the bond. Article 22.16 also placed time constraints on a court entering judgment in the bond forfeiture suit (9 months for a misdemeanor, 18 months for a felony). In Armadillo Bail Bonds v. State 802 S.W.2d 237 (Tex. Crim. App. 1990), State v. Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991), and Lyles v. State , 850 S.W.2d 497 (Tex. Crim. App. 1993), the Court held that these time constraints violated the separation of powers provision of the Texas Constitution. Even so, the Legislature did not attempt to fix the problem until 2003, at which time it removed the time constraints from article 22.16 and moved to article 22.13 the limitation on liability because of the principal’s incarceration. In this context, the State in Safety National argued that the 180/270 day provisions of article 22.13 were similar to the 9/18 month provisions that had been ruled unconstitutional. The Court disagreed finding no requirement in article 22.13 that the court wait any amount of time before taking a judgment. Safety National Cas. Corp. v. State , 273 S.W.3d at 164. -8-

[12] Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Reis , 117 Tex. Crim. 123, 127, 33 S.W.2d 435, 437 (1930). See also, Tex. Code Crim. Proc. art. 17.01 (bail is defined as “the security given by the accused that he will appear and answer before the proper court the accusation brought against him.”); id. art. 17.02 (“A ‘bail bond’ is a written undertaking [by the principal and surety] for the appearance of the principal . . . to answer a criminal accusation.”); id. art. 17.08 (a bail bond must contain a -9-

[14] There are three causes for exoneration under article 22.13 that do not require the return of the principal: when the bond is invalid and not binding (article 22.13(a)(1)), when the principal dies before the forfeiture occurs (article 22.13(a)(2)), and when an indictment or information is not presented timely and the prosecution is not continued (article 22.13(a)(4)). -11-

[15] The main difference between the two subsections of article 22.16, other than the basis for reducing the surety’s liability, is that subsection (a) provides a mandatory reduction (“the court shall”), while subsection (b)’s reduction is discretionary (“the court in its discretion may”). -12-

Case Details

Case Name: Tom Benson v. State

Court Name: Court of Appeals of Texas

Date Published: May 29, 2015

Docket Number: 03-15-00121-CR

Court Abbreviation: Tex. App.