*1 Regardless of the other benefits Carbide, NATIONAL signifi there SAFETY CASUALTY

claimed Union Leyva CORP., Agent cant benefit from mandamus relief re Manuel d/b/A gard random-assignment-of-cases Bonds, Appellant, Rocky Bail question. assignment Random of cases is v. designed prevent forum-shopping. assignment

Practices that random subvert of Texas. STATE procedures “disrespect breed for and integrity judicial sys of our No. PD-0413-07. [threaten] Bennett, 35, tem.” See In re 960 S.W.2d Appeals of Texas. Court of Criminal (Tex.1997). We need not consider intended to whether intervention was May 2008. County’s circumvent Galveston local rule requiring assignment random of cases be Rehearing Aug. Denied intent, regardless cause of the Halls’

intervention and the trial court’s abuse of failing

discretion in to rule on grant

the motion to strike resulted in circumven assignment

tion of the random rule.

regard parties, detriment to the

Halls’ claims been have now filed as a that is

separate pending lawsuit Galves County.

ton There be insignificant will party

detriment to either or the judicial

system if mandamus granted. relief is On

balance, mandamus review is warranted establishing

because the benefits of

priority give that trial courts must to rul

ing motions to strike interventions

re-emphasizing the importance ap of both

pearance practice maintaining in

tegrity of assignment random rules out

weigh any detriment to mandamus review Thus,

in this instance. Union Carbide adequate remedy by

does not have an

appeal. hearing argument, oral con-

Without we

ditionally grant the writ mandamus and

direct the trial court to vacate its sever-

ance and enter an order granting order motion to strike. See

Union Carbide’s

Tex.R.App. P. issue writ will 52.8(c).

only if the trial court not do so. does *2 Good, TX, Tyler, for Appellants.

Ken W. County Attor- Schonberger, Arne Asst. Paso, Horn, Jeffrey El L. State’s ney, Van Austin, for Atty., State.

OPINION MEYERS, J., opinion delivered KELLER, P.J., Court, in which JOHNSON, PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and JJ., COCHRAN, joined. National, sought exon-

Appellant, Safety eration from the forfeiture bond due of the defendant. See incarceration of the Texas Code en- Procedure.1 The trial court Criminal for tered a in favor of the State original one half the amount findings concluding of fact and entered 22.13(a)(5) unconstitutionally that Article discretion interferes the trial court’s with finality judgments.2 Ap- and with appeals and the court of pellant appealed, the trial court. affirmed the State, 225 S.W.3d 684 Safety National v. 2006). granted re- (Tex.App.-El Paso We constitutionality of to consider the view 22.16(a). hold We Articles are constitutional the statutes the trial court. remand the cause to

FACTS $10,000 be- bond on Appellant posted Guerrero, charged half Willie who misdemeanor, (A) at the specified, in the case of a all future refer- 1. Unless otherwise day refer to the Texas Code of 180th ences to Articles time of or not later than the Criminal Procedure. principal's failure to after the date of the court; appear in 2. The relevant of Article 22.13 states: (B) felony, at the time in the case of a other, causes, (a) following no will day or not later than the 270th sureties, if exonerate the defendant and his appear in principal's failure to date of the any, liability upon the forfeiture taken: from court. principal 5. The incarceration of jurisdiction in the United States: felony controlling judg- theft and was due to the time of trials and hearing on March multiple post- When ments because “to avoid Safety actions, National employee tying up learned that further its docket, Guerrero failed to at hearing, have to 9 months to wait him she located and informed the court judgment” places enter a final and it vir- *3 appear coordinator that Guerrero would tual time and amount limits out of the Instead, court; V, that afternoon. the coordinator of the Article Sec- discretion told Appellant bring Guerrero to court tions 1 and of the Texas Constitution3 following the Guerrero in the morning. ap- power vest over bond forfeitures 22.13(a)(5) peared following the morning gave judicial and branch and Article in- judge trial several reasons for his failure power; pur- terferes with that the stated time, at his including pose scheduled of an orderly a bond is to have dock- weather, trouble, car by and that he had et defendants on time forgotten. judge The trial was offended and for sureties to assist that-to al- with by and, result, Guerrero’s attitude as a low a defendant to interfere entered a nisi forfeiting the bond by showing up court’s docket for trial placed and in custody. Guerrero He any portion was “without forfeiture of later released on a bond. At future, new the final bond would cause similar behavior hearing nisi, on Appellant by the in by defendants this case and argued that it was entitled to exoneration and, other Sureties and persons”; accused under Code of Criminal Procedure Article taking away “discretion to order payment 22.13(a)(5)because Guerrero was incarcer- of all or pur- bond vitiates the ated the day after his appear. pose failure to of a bond and create havoc The court entered a judgment calendar, for the allowing with the Court’s defen- $5,000 State for plus court costs and en- dants to in wonder at a time and [sic] tered findings of fact and choosing.” conclusions of date of their own 22.13(a)(5) stating law that Article is un- Appellant appealed, arguing that the tri- constitutional. al court’s failure to exonerate error was The trial court following included the in legal and that regarding conclusions findings its of fact and conclusions of law: Article were erroneous. The Article affects the timing and court of appeals argu- overruled these finality judgments and interferes ments and considered Appellant’s ar- with the core powers of the gument court and the that it mandatory was entitled to 22.16(a) administration justice; the statute remittitur under Article because hampers the discretion of the court in Guerrero released in on new bond V, ("The sive, judicial § 3. See Article power appellate, original jurisdiction 1 all actions, remedies, Supreme proceedings, this State shall be vested in except one in Court, exclusive, Appeals, appellate, original one Court of Criminal cases where Courts, Appeals, jurisdiction may Courts of in District Coun- be conferred this Consti- Courts, Courts, ty court, in Commissioners in Courts tution or other law on some other Peace, tribunal, of Justices of the and in body. such other or administrative District may provided by Legis- judges courts as be law. The Court have the shall to issue may lature necessary jurisdiction. establish such other courts as it writs to enforce their may necessary prescribe deem juris- appellate juris- The District Court shall have thereof, organization diction and general supervisory diction and control over Court, jurisdiction conform the County of the district and Commissioners with such thereto."); V, § other inferior courts exceptions regulations may Article and under such ("District jurisdiction law.”). Court prescribed by consists of exclu- legislature See amend- appeals case. The held that Article 22.17. 22.16(a) 2003, removing the limi- Chapter current version of Article vio- ed II, section the Texas ability lates trial to enter a tations on the provides for man- Constitution4 because setting out the situa- datory anytime remittitur at to final tions in a bondsman is entitled principal if is re- the defendant if the made request full remittitur while in the case or the case leased new bail jurisdiction the court has over case. given is dismissed. which bond is 22.13(a)(5) apply time limits Article so, the has doing removed They surety, not to the trial court. to remit trial court’s discretion the bond surety’s are an date on the abili- expiration new or the criminal the event bail ty principal use the defense that National, *4 Safety case dismissed. incarcerated, telling a the not mandate S.W.3d 691-92. thus, enter a the judgment; state to when prevent for trial Appellant petition periods filed a discretion- time do not the any ary asking entering review us to determine whether a final at from appeals properly court of found that place the not time. Article 22.16 also does 22.16(a) article of the Texas Code of Crimi- time or on a trial court’s limits restrictions on nal Procedure is unconstitutional based pro- final It ability judgment. to enter a pro- of separation-of-powers a the violation to mandatory prior for remittitur the vides in the addi- Texas Constitution. We vision in final the of the tionally granted on our motion review own being re- of the principal limited situation article of to determine whether if bail in case or the case leased on new the Texas Procedure is the Code Criminal dismissed, discretionary remitti- and for on a violation of the unconstitutional based good tur for cause shown. in Tex-

separation-of-powers provision the simply time limits the statutes as Constitution. file on to a place the burden bondsmen court still remittitur while the OF THE PARTIES motion for ARGUMENTS jurisdiction case and do not has over the Appellant argues that articles 22.13 and ability place to restrictions the not a trial court to alter a 22.16 do order therefore, the statutes do judgment, enter not tell the trial final and do doc- separation-of-powers not the violate final judgment. it can enter a court when Finally, trine of the Texas Constitution. Rather, provides 22.13 affirmative Appellant argues that the has for Article 22.16 surety, the and defenses to an intent bondsmen indicated reward the the sets out limited situations wherein to custo- returning the state who assist remittitur the bond seek fail to because dy principals appear, who Even judgment. to pres- the the of bail is to secure special purpose pro- a judgment, Chapter allows accused, a revenue ence of the not to be surety may under the seek cedure which punitive or to be or to substitute of the amount. device portion the return another; II, and which are Judicial to and § the Division of those 4. Article discusses states, being powers Gov- person, persons, Powers and "The of the collection no divided ernment of the State of Texas shall be departments, exercise one of shall these which departments, three distinct each of into the power properly attached either of oth- to magis- separate body be confided to a shall ers, expressly except the instances herein Legislative to tracy, to wit: which are Those permitted.” another, one; Executive those which are to bondsmen, a fíne. the court dock- of the forfeiture mean Without remission would worse, really that the bound to ets would even and state defendant is appear either to hire more officers to can create continuances at will. have the discretion to set seek out defendants who are on bond and Because the court has bail, appear jails purpose fail to or build more to hold the amount of the those are not released on bond. the fulfillment of an who bond is assure pay obligation court and that, argues through The State Articles fulfilled, penalty obligation if that is not Legislature “the told sepa that it State asserts violates Court what must enter ration-of-powers Legisla doctrine for the doing improperly so has exercised ture to make the bond unenforceable judicial reserved branch of through exoneration and for the forced government to hear ap controversies and surety to have the same risk whether ply discretion to determine amount of such, high court sets a or low bond. As judgment” “by requiring a zero Legislature has made failure to cases, judgment in all no matter what penalty, an inter offense without (i.e. circumstances, of the amount orderly processes feres with the bond, missing the reason for court and the that, points Lyles courts. The State out caused), delay Legislature improper *5 (Tex.Crim. State, v. 850 S.W.2d 501 ly usurping judicial function.” This re that App.1993), this Court said the old power moves court’s to consider facts requiring mandatory statute remittitur at related to the reason for the failure to judgment time to final removed judgment and to enter a based on a trial court’s discretion. Under the same those facts. Courts are also prevented reasoning, forcing enter a a court to zero Article entering judg from judgment against sep a bond also violates ment for nine months because there is no of powers. aration guidance for concerning the court situa tions judgment wherein a final CASE LAW prior to nine months and the defendant is The former of Article 22.16 en- version judgment returned after the but before the compassed princi- both the issues of the nine expired. months have This interferes pal’s principal’s incarceration and the re- ability with the court’s to control its docket lease on new bail. The because the would amended Article in 22.16 2003 moved actually days passed be until 270 had principal’s the section that addressed the since, entered, if final even were incarceration to Article 22.13. In Arma- would nullified or would to be have dillo Bail Bonds v. State 802 S.W.2d 237 reformed if the defendant became incar Matyastik, v. (Tex.Cr.App.,1990), State period. cerated within that time (Tex.Crim.App.1991), 811 102 S.W.2d that subsequent appearance State claims Lyles, held that the former statute we should not exonerate a forfeiture because was unconstitutional. that keep would allow defendants to miss ing hearings until Considering there are no witnesses the former version of Arti him, therefore, 22.16, against or evidence cle time restrictions placed penalty there should be a upon for failure to when a final could be ent ered,5 at designated Complete time. held that the Armadillo restrictions (a) 5. Former Article 22.16 stated: After forfeiture of a bond and before the 162 Matyastik, extended at 239-240. In we to determine right

on the court’s when Armadillo, eliminating the holding in separation-of- our a case violated decide 22.16(c) time restrictions in of the Texas Constitu powers provision remittitur occur stated, repeated determining held that “We have tion. We entry provision anytime forfeiture and separation powers between ly that judgment. Matyastik, ways. of a final in either of two may be violated this issue one branch of at 104. We considered First, it is violated when S.W.2d Lyles v. State and held assumes, delegated, again or is government of Article degree, mandatory provisions more remittitur whatever power 22.16(d) void, branch. 22.16 are but because Article attached’ to another ‘properly all or one the trial court to remit also when allows provision violated prior to unduly interferes with another the bond at the court’s discretion branch that subsec judgment, other branch cannot of a final so that branch separation-of-pow constitutionally as tion does not violate the effectively exercise its Armadillo, at 850 S.W.2d at 501. signed powers.” S.W.2d ers. omitted) (internal (emphasis citations ANALYSIS judicial explained that the original). We discussing the reasons for the evidence, to hear

branch has the 22.13 and to Articles 2003 amendments fact, questions decide decide issues that, “the Legislature stated on the facts law, enter a the de state is more interested law, judg execute the final and the receiving forfeited appear than fendant sentence, Legislature has and the ment time limits on when administration, money. Setting authority judicial over result bonds be forfeited would upon the sub infringe it does not long as Id. ultimately appearing judicial branch. more defendants *6 stantive principal has been by ty the is or whether or not expiration the time limits set Subsection shall, article, (c)of jurisdiction and the incarcerated in another on written this the court motion, surety date of the incarceration. the amount of the remit to the court, (c) against a judgment may entered deducting A final the costs of bond after county for the return bond not earlier than: reasonable costs to the (1) forfeiture date the principal, the interest accrued on nine after the of the months entered, the by for provided Subsection was if the offense the bond amount as misdemeanor; (e) given or a bond was is of this article if: (2) (1) date the forfeiture in the months after the incarcerated principal the entered, which the offense for pending; was if the county prosecution is in which the felony. given (2) bond was is a in another principal is incarcerated the (d) of the time limits set expiration After the is verified jurisdiction and the incarceration article; (c) (b) the by article and before Subsection of this by of this provided Subsection as bond, judgment against the (3) entry a principal is released on new bail surety case; may remit to the in its discretion court deceased; of the bond (4) all of the amount or principal is court, any reasonable deducting (5) given the costs of was case for which bond prin- of the county for the return costs to the dismissed. (a)(2) on the bond (b) cipal, accrued and the interest purposes of Subsection For the (e) by of this article, provided Subsection surety may request confirmation amount a this by article. principal written the incarceration of his article, (e) interest purposes this agency For request the law enforcement to from the date of the bond amount pending. A law accrues on county prosecution is where and at the same manner forfeiture in the agency in this state that receives enforcement pre- accrual of provided for the notify same rate as the court request a for verification shall judgment in civil cases. interest pending and the sure- prosecution is in which fact, court says nothing because bondsmen a fi- tered. Article 22.13 would have nancial produce principal incentive to judgment-it about the of a final sim- many originally after he or weeks she ply a defense if provides failed to ... [and] would the defendant is incarcerated within nine give bondsmen consistency principals If appear. months after he fails incarcerated, allowing who were a while term the court a final ends before enters judge adjust the time period as needed judgment bond, on the under Article in a particular case.” Senate Comm, the court must remit the amount of the CRIMINAL JURISPRUDENCE, BlLL ANALYSIS, bond. (2003). Tex. S.B. Leg., 78th R.S. The State also that Article implies Sellers, As we stated in State v. by triggered the defendant’s 321 (Tex.Crim.App.1990), S.W.2d incarceration, whether or not he is re- judgment a nisi alone does not authorize turned, he and that will be exonerated recovery of a bond by amount the State. court, appearing stating without ever

A judgment provisional nisi is a 22.13(a)(5) requires that “Article a zero absolute, that is not final or but be regardless of the crime for come final. See Article 33.14. Nisi means which the defendant is arrested and with- “unless,” a judgment so nisi is valid unless out the actual return Defendant- party why shows cause it should be County Principal prosecu- of his us, withdrawn. In the case Appel before (Emphasis Respondent’s tion.” Brief on argues lant that there are two reasons Merits). simply This is incorrect. As First, should be withdrawn. 22.13(b), specifically stated Article day defendant was incarcerated the (a)(5) surety exonerated subsection under after his initial appear, which, failure to obligated pay remains incurred costs 22.13(a)(5), under Article triggers exonera county princi- to secure the return of the tion from the forfeiture of the bond. Sec pal. Similarly, the court must remit the ond, the defendant was released on new amount of the bond under Article 22.16 if the same case after he arrest the defendant has been new bond in ed on the resulting warrant judg from the nisi, ment same case or the case has been dis- which is a reason for remittitur under missed. It makes sense that when a new *7 22.16(a). case, bond is issued in a the old bond remitted; should be this not mean does The State reads Article to that a defendant can be on bond some- mean that the court cannot enter a final where else for some other case and be judgment for nine months because then entitled to full remittitur. Both Articles “multiple would have post-judgment ac- require 22.13 22.16 remittitur tions” if the defendant after final returned specific, limited situations —situations judgment but within nine months after his the return of the defendant is cer- which However, appear. failure to Article 22.13 (because tain the defendant is incarcerated say does not that the trial court must wait elsewhere), (a)(5) the return is secured anoth- by until lapses the time in subsection to case, er enter a final bond the same or the return is judgment. The statute does (because not prohibit entry unnecessary or the case has been dismissed).6 dictate the judgment must be en- when

6. We note that there are other situations in has limited the circumstances un- may provide requested the Code of Criminal Procedure in which the der a which courts alties, and additional that, contempt such as if point The of Article pursued to charges, that can be or criminal is incarcerated when the defendant appear, to or securing a for failure shortly appear, punish he failed to defendant after cash-only easy does a appear quite require court can return to his 23.05(a). surety See Article require the of a bondsman. lieu of a bond. assistance punitive cost to or county incur the not intended to be And bail is Because juris- bonding another is a defendant from Bail transfer the to be a revenue device. 22.13(b) diction, surety therefore, makes the business; pay court county costs incurred during liable for the time costs and interest of the defendant. But the return to secure is incen- a defendant fails which a court to require statute does not wait at- to secure the for the bondsman tive entering judg- a final nine months before at his scheduled of the defendant tendance thus, a ment, does not interfere with does not have hearing. finality judgments. timing high a bail the court sets same risk when case, day returned the Guerrero was one, this court sets a low it has when in court his failure to was after higher interest high bond has because a He to the forfeiture of bond. prior surety to return time it takes the for the same time the custody at the placed the defendant. forfeiting nisi court entered the Appellant requested remit- the bond. And CONCLUSION under Article 22.13

titur 22.16 do not interfere Articles 22.13 and Therefore, the State’s judgment. of final ability to enter the trial court’s with Article 22.13 forc- regarding hypothetical the time they nor do dictate judgment, nine months the trial court to wait ing may enter a trial court frame which within apply does not entering judgment before do not The statutes judgment. a final this situation. doctrine separation-of-powers violate argument disagree with State’s We are not unconstitutional. and thus guidance no for the there is reversed, appeals is of the court of decision judg- a final concerning situations wherein to the trial the cause is remanded prior to nine months and ment is court. after the

defendant is returned expired. have before the nine months but COCHRAN, J., concurring filed a spe- for a specifically allows Article 22.17 opinion. up years cial bill of review two J., COCHRAN, concurring. entered, has been rea- valid several The State discusses that all or request include 22.13, dealing why Article returned. The State sons forfeited bond be bond, may be a coun- exoneration of bail complete remission also incorrect *8 that ties the hands statute terproductive the defen- mean that

the forfeiture would purpose judges and can thwarts really is not bound to dant Nonetheless, I place. that in the first at will and create continuances these deficits majority agree an has made failure Legislature unconstitu- of an not rise to the level pen- There are do penalty. offense without 07, writ of habeas cor- subsequent application for § 4 remedy. example, in Articles 11. For 5, § tells us under pus. may we consider what limited conditions separation-of-powers tional violation

doctrine. These are matters that are best Legislature

left to the Safety and to Na- Casualty Corp.

tional Concurring Opinion

Page governments local in-

crease their upon non-profit reliance Pre-

trial programs. majority Services notes,

aptly bonding “Bail is a busi- Indeed is. To the extent that

ness[.]”1

the interests of the bail bond business and justice system needs the criminal track,

are not on the same local and state

governments are free appropriate to make

adjustments. Courts do not decide the laws, they

wisdom of such decide

their constitutionality.

I join therefore the majority opinion. OTTO, Appellant,

Adriane Elaine

The STATE of Texas.

No. PD-1311-06.

Court of Appeals Criminal of Texas.

Feb. 2008.

Rehearing April Denied *9 Majority Op. at 164.