Tom Benson v. State

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 FILED IN

3rd COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS

AT AUSTIN, TEXAS 5/29/2015 3:22:17 PM

________________________________________________

JEFFREY D. KYLE

Clerk

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

TEX. CODE CRIM. PROC. art. 17.01 ........................................................................... 9

TEX. CODE CRIM. PROC. art. 17.02 ........................................................................... 9

TEX. CODE CRIM. PROC. art. 17.08 ........................................................................... 9

TEX. CODE CRIM. PROC. art. 22.10 ........................................................................... 5

TEX. CODE CRIM. PROC. art. 22.13 .....................................................................8, 11

TEX. CODE CRIM. PROC. art. 22.13(a)(1)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(2)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(3)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(4)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(5)..................................................8, 9, 10, 13

TEX. CODE CRIM. PROC. art. 22.13(a)(5)(A) ................................................3, 4, 6, 7

iii

TEX. CODE CRIM. PROC. art. 22.13(b) ..................................................4, 7, 9, 10, 11

TEX. CODE CRIM. PROC. art. 22.16 .....................................................................8, 12

TEX. CODE CRIM. PROC. art. 22.16(a) ....................................................................11

TEX. CODE CRIM. PROC. art. 22.16(b) ....................................................................12

TEX. CODE CRIM. PROC. art. 22.17 ...................................................................12, 13

TEX. CODE CRIM. PROC. art. 22.17(a) ....................................................................12

TEX. CODE CRIM. PROC. art. 44.42 ........................................................................... 5

TEX. CODE CRIM. PROC. art. 44.44 ........................................................................... 5

TEX. R. CIV. P. 166a(c) ..............................................................................................5

SENATE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS,

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

1 CR 4,5.

2 CR 4,5.

-2-

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

3 CR 4.

4 CR 4.

5 CR 4.

6 CR 14.

7 CR 9-13.

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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.

8 CR 16-23.

9 CR 24-25.

-4-

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:

10 Appellant’s Brief at p. 5.

-6-

(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.

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-

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

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-

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).

13 See also, Gramercy Insurance Co. v. State, 834 S.W.2d 379, 381-82 (Tex. App.−San

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

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-

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

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-

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

JUDGES: En Banc. Campbell, Judge. in Dallas County with a felony, failed to

Judges Teague & Miller dissent without appear for trial on November 19, 1987.

opinion. Sturns, Judge not participating. On that date the trial court rendered

judgment nisi for the State [**2] and

OPINION BY: CAMPBELL against de Jesus Carreon and his surety,

Armadillo Bail Bonds, jointly and

OPINION severally, in the amount of de Jesus

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

separation of powers provision. (1) the principal is incarcerated in the

Armadillo Bail Bonds v. State, 772 county in which the prosecution is

S.W.2d 193 (Tex.App. -- Dallas 1989). pending;

In its petition for discretionary (2) the principal is incarcerated in

review, Armadillo contends that Article another jurisdiction and [**4] the

22.16(c)(2) "is a valid enactment of law incarceration is verified . . .;

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

statute is constitutional because it "does (5) the case for which bond was

not prevent the courts from managing given is dismissed.

their affairs . . .; it only controls the type ***

of relief a court can grant at certain

times." Appellant's Brief at 12. The State (c) A final judgment may be entered

responds that "by ordering trial courts against a bond not earlier than:

not to enter bond forfeiture judgments [*239] (1) nine months after the

until the expiration of . . . eighteen date the forfeiture was entered, if the

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

[**5] render a final judgment for a set We have held repeatedly that the

period of time. separation of powers provision may be

violated in either of two ways. First, it is

1 See Senate Comm. on Crim. violated when one branch of government

Juris., Bill Analysis, Tex. S.B. 185, assumes, or is delegated, to whatever

70th Leg., R.S. (1987) (discussing degree, a power that is more "properly

Williams v. State, 707 S.W.2d 40 attached" to another branch. Ex parte

(Tex.Cr.App. 1986)). Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.

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

State of Texas shall be divided into three constitutionally assigned powers. Rose

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

availability of checks and balances. The guise of establishing 'rules of court,' thus

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

N. McCabe, Four Faces of State task to determine whether any given

Constitutional Separation of Powers: legislative action that affects the

exercise of judicial power is a violation

Challenges to Speedy Trial and of the separation of powers provision.

Speedy Disposition Provisions, 62

Temple L. Rev. 177, 218 (1989). Helpful to our inquiry in this case, we

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

The Texas Constitution explicitly to comply. Although the facts of Omholt

vests the judicial power of the state in are different from those in the case

the courts. Tex. Const. art. 5, § 1. The before us today, we believe the

core of this judicial power embraces the reasoning of the decision is instructive

power (1) to hear evidence; (2) to decide and sound:

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

By [the separation of powers] judge how he shall judge or how he shall

provision, each branch of government is comport himself in judging or which

made equal, coordinate, and seeks to surround the act of judging with

independent. By this we do not mean hampering conditions clearly offends the

absolute independence because constitutional scheme of the separation

"absolute independence" cannot exist in of powers and will be held invalid."

our form of government. It does mean, The courts have recognized, as the

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

constitutional court encompasses the authors state:

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

"What the holdings do suggest is that internal regimen: command appellate

there is a third realm of judicial activity, courts to issue written opinions in every

[**10] neither substantive nor adjective case, declare within what time cases

law, a realm of 'proceedings which are shall be heard, [*241] deny to the court

so vital to the efficient functioning of a the power to issue its mandate until a

court as to be beyond legislative power. prescribed period of time after judgment

'This is the area of minimum functional shall have passed? There are spheres of

integrity of the courts, 'what is essential activity so fundamental and so necessary

to the existence, dignity and functions of to a court so inherent in its very nature

the court as a constitutional tribunal and as a court, that to divest it of its absolute

from the very fact that it is a court.' Any command within these spheres is to

statute which moves so far into this make meaningless the very phrase

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

662 P.2d at 594 (emphasis in judicial power which must be free of

original; some citations omitted). See legislative interference. 2 The question in

also Sands v. Albert Pike Motor Hotel, each case is whether the legislation in

245 Ark. 755, 434 S.W.2d 288 (Ark. issue is grounded on the Legislature's

1968); Holliman v. State, 175 Ga. 232, own constitutionally assigned power

165 S.E. 11 (Ga. 1932); Waite v. and, if so, whether the legislation

Burgess, 69 Nev. 230, 245 P.2d 994 nevertheless unduly interferes, or [**13]

(Nev. 1952); Schario v. State, 105 Ohio threatens to unduly interfere, with the

St. 535, 138 N.E. 63 (Ohio 1922); Judiciary's effective exercise of its

Complaint Against Grady, 118 Wis. 2d constitutionally assigned power, and we

762, 348 N.W.2d 559 (Wis. 1984) (all so hold.

cases holding legislature may not dictate

to judiciary when [**12] or how cases 2 We should not be understood to

shall be decided). approve the court of appeals'

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

has the power to render the Judiciary In our view, Article 22.16(c)(2)

impotent with respect to the entry of unduly interferes with the Judiciary's

final judgments. effective exercise of its constitutionally

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

rules of court. We also agree with the Teague and Miller dissent without an

Omholt court's reasoning that the opinion.

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

On original submission, we found a proceeding, therefore, is whether there is

substantial material fact regarding notice a genuine issue of fact in the case. Id. at

was presented which defeated summary 562. The party moving for summary

judgment, and we therefore sustained judgment has the burden of showing that

appellant's second ground for review. there is no such fact question and that he

Alvarez & Burns v. State, S.W.2d is entitled [**4] to judgment as a matter

(Tex.Crim.App. No. 1111-91, delivered of law. Nixon v. Mr. Property

December 23, 1992), slip op. at p. 8. 2 In Management Company, Inc, 690 S.W.2d

its motion for rehearing, the State 546, 548 (Tex. 1985). In deciding

presents three reasons why this Court whether there is a disputed material fact

erred in finding a substantial material issue precluding summary judgment, the

[*887] fact was presented which court takes as true the evidence

defeated summary judgment. The State favorable to the non-moving party. Id.

alleges the opinion omits a material fact, at 548-49. Every reasonable inference

omits and improperly recites [**3] the from the evidence must be indulged in

law applicable to summary judgment favor of the non-movant, and any doubts

cases, and improperly applies the law to resolved in its favor. Id. at 549. See also

the facts. Montgomery v. Kennedy, 669 S.W.2d

309 (Tex. 1984); City of Houston v.

2 Finding merit in appellant's Clear Creek Basin Authority, 589

second ground for review, we did S.W.2d 671 (Tex. 1979). Hence, the

not address his first ground for applicable standard of review is to view

review. Id. at p. 9. the evidence in the light most favorable

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.

[**5] We now review the elements 22.02 have been satisfied. Id. The [**6]

of the State's cause of action in a bond burden then shifts to the defendant to

forfeiture from which this summary affirmatively show otherwise. Id.

judgment action arose. Bond forfeiture, Indeed, "the court will presume that the

although in the nature of a civil judgment nisi was taken in accordance

proceeding, 4 is governed by the Code of with the statutory requirements, unless it

Criminal Procedure. Article 22.02 affirmatively appear otherwise." Id.,

directs the manner of taking a forfeiture citing Thompson v. State, 31 Tex. 166

and provides in pertinent part: (1868). In moving for summary

judgment in an appearance bond

The name of the defendant forfeiture case, the State must therefore

shall be called distinctly at the establish as a matter of law that there are

courthouse door, and if the no genuine issues of material fact as to

defendant does not appear any of the elements of the State's cause

within a reasonable time after of action, which are proved by the bond

such call is made, judgment and the judgment nisi. Deckard v. State,

shall be entered that the State 615 S.W.2d 717, 718 (Tex.Crim.App.

of Texas recover of the 1981) (panel opinion).

defendant the amount of

money in which he is bound, 4 See Art. 22.10, V.A.C.C.P.

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

appearing (Article 22.13). The court of appeals, relying upon

Lopez v. State, 678 S.W.2d 197

(Tex.App. - San Antonio 1984, no pet.),

Alvarez & Burns, slip op. at p 3; see also recognized that there are only four fact

Burns, 814 S.W.2d at 770. The State issues in a motion for summary

contends this fourth issue is not a fact judgment on a bond forfeiture. See

which it must prove in a bond forfeiture Burns, 814 S.W.2d at 770. Those issues,

proceeding. A plain reading of Art. per Art. 22.02, are: whether there is a

22.02, along with the Tocher decision, valid bond; whether the principal's name

reveals the State is correct. was called at the courthouse door;

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.

In his second ground for review in The sickness of the

his petition, appellant contended the principal or some

State failed to establish as a matter of uncontrollable

law that the principal had notice of the circumstance which

court setting and "that the summary prevented his

judgment evidence created a substantial appearance at court, and

and genuine issue of material fact it must, in every such

concerning notice to the principal, thus case, be shown that his

precluding summary judgment." On failure to appear arose

original submission we agreed with from no fault on his part.

appellant and concluded "the amended The causes mentioned in

affidavits of the principal's attorney and this subdivision shall not

the affidavit of the surety which present be deemed sufficient to

evidence that the principal did not exonerate the principal

receive notice of the setting raises (sic) and his sureties, is any,

material facts reflecting the unless such principal

contradiction and inconsistency of the appear before final

principal's lack of notice to defeat judgment on the bond to

summary judgment." Id., slip op. at p. 8. answer the accusation

In its motion for rehearing, the State against him, or show

argues that we misapplied the law to the sufficient cause for not

facts. [**10] The State asserts that the so appearing.

dispositive issue before this Court is

whether the appellant, as non-movant,

presented summary judgment evidence Pursuant to the express terms of

on every element of his defense, viz: his Art. 22.13, to controvert the State's

failure to appear was due to an prima facie proof, appellant must

uncontrollable circumstance pursuant to show (1) that some uncontrollable

Art. 22.13, V.A.C.C.P. 5 We disagree circumstance prevented the

with the State's argument. principal's appearance at court, (2)

that the principal's failure to appear

5 Article 22.13, V.A.C.C.P., arose from no fault on his part, and

provides an exclusive list of causes (3) that the principal appeared

which will exonerate the principal before final judgment on the bond

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

In the motion for rehearing, the law by virtue of the fact that no good

State asserts pursuant to Art. 22.13 cause exists for the Defendant-

that we omitted the fact that the Principal's failure to appear.'" Appellant

record is wholly void of any then asserts in his response that there are

evidence that, after forfeiture, the genuine issues of material fact which

principal appeared prior to preclude the State's entitlement to

judgment in the forfeiture case. summary judgment, including lack of

Hence the State argues that even notice to appear. Nowhere in his

though there may have been a lack response (as opposed to his answer)

of notice to appear, appellant has does appellant assert he is entitled to

failed to meet his burden of proof exoneration of [**12] liability on the

on this affirmative defense by not bond forfeiture via Art. 22.13.

presenting any evidence that, in the

23 months between forfeiture and 6 See Burns, 814 S.W.2d at 770.

judgment, he had been returned to 7 See Alvarez & Burns, slip op. at

custody in Harris County. See p. 5.

Fernandez v. State, 516 S.W.2d 677 8 Specifically, appellant filed an

(Tex.Crim.App. 1974). original answer and two amended

answers.

[**11] [*889] In spite of

statements in the court of appeals' In his brief in the court of appeals

opinion 6 and this Court's opinion on appellant contended, inter alia, that the

original submission, 7 appellant has not trial court erred in granting summary

raised or argued an "uncontrollable judgment because a fact issue existed

circumstance" affirmative defense under concerning notice to the principal to

Art. 22.13. The record reveals that appear. Again, appellant did not argue

citation issued on April 15, 1988, on the he was entitled to exoneration pursuant

bond forfeiture. See Art. 22.10. to Art. 22.13. 9 In his petition for

Appellant filed an answer 8 generally discretionary review before this Court,

denying the allegations and providing a appellant contended lack of notice was a

laundry list of defenses, including fact issue in this case but not under Art.

"[appellant] is entitled to be exonerated 22.13. Thus, the affirmative defense of

under the provisions of Article 22.13 an uncontrollable circumstance was not

T.C.C.P." The State then filed its motion an issue before either the court of

for summary judgment. Appellant filed appeals or this Court, and any statements

his reply in response to this motion addressing that issue are dicta.

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.

judgment because if no 22.02. On original submission we held

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,

sec's. (sic) 13 and 19 of Miller, J.

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.

Where indictment against relator, The court should not be deprived of

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

JUDGES: Christian, Judge. vacating order was entered at the same

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,

[*123] [**436] CHRISTIAN, under the bond he had theretofore

Judge. -- Upon a hearing on a writ of executed in the sum of five hundred

habeas corpus before the district court of dollars. The testimony adduced upon the

Galveston County, relator was remanded hearing was uncontroverted to the effect

to the custody of the sheriff. Hence this that relator entered the home of Mrs.

appeal. [*124] Relator is under Carrie Moeller, exhibited a pistol, bound

indictment charging him with robbery and gagged her, struck her on the head

with firearms, a capital offense. The with the pistol and robbed her of two

indictment against him was returned into thousand dollars.

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

felonies. It being the custom of the judge S.W. 464, 77 S.W. 224, and the

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

term of court at which the indictment rendering it dangerous to longer confine

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

returned. After the second indictment, power or authority to vacate or withdraw

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

S.W. 464, Augustine's Case was cited in motion and without notice, at the same

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

Looking to other jurisdictions, it is judgments or orders were not applicable,

observed that the Supreme Court of in that in such cases the court had under

Oklahoma, in the case of State ex rel. consideration property interests of the

Starritt v. Newman, 114 Okla. 228, 245 parties rather than the liberties of the

P. 999, cited with approval the holding citizens.

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

order setting aside and withdrawing the cases, we quote from Bishop's New

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

power. complied with its order fixing his bond.

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

attorney as to the nature of the offense, bail. Otherwise he is entitled to bail as a

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

of the court to correct a mistake in matter of right. Ex parte Alford, 97 Tex.

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

To deprive the court of the [***11] (article 260, C. C. P.) under which the

authority to correct a mistake of the cases relied upon by appellant seem to

nature in question during the term at have been decided. The soundness of

which it was made would render it such decisions is seriously questioned.

powerless to perform its constitutional The judgment is affirmed.

and statutory functions. An inherent Affirmed.

power would be destroyed. The

administration of justice would be [*128] The foregoing opinion of the

hampered, if not entirely defeated. We Commission of Appeals has been

are constrained to hold that the action of examined by the Judges of the Court of

the trial court should be sustained. Criminal Appeals and approved by the

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.

OPINION BY: ONION The twenty year old petitioner

testified that he was in jail, that he was

OPINION unable to make the amount of bond set,

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.

The record reflects that on August 3, He testified he had made a $10,000 bond

1977 the appellant was indicted for in an aggravated robbery case, 1/ and

capital murder. The said indictment could possibly make a $10,000 bond in

charged that appellant intentionally and [*479] the instant case. 2/ He told the

knowingly caused the death of Maria court he was paying his lawyer $35 3/ a

Guajardo by shooting her with a gun week on his fee, and if released could

while in the course of committing and find a job with an uncle at $80 or $85 a

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.

"Q. Do you mean another On the same date as the hearing the

$10,000 or the same -- the original petitioner filed a pauper's oath for the

$10,000 bond? purposes of obtaining a record on appeal

of the habeas corpus proceedings. The

"A. The original $10,000." court on the same date ordered the

The witness was then passed. transcription furnished without cost,

3 The source of the $35 weekly finding petitioner [**4] was a pauper.

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

not shoot the deceased as alleged. On Article 17.15, Vernon's Ann.C.C.P.,

cross-examination he acknowledged that provides:

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

blocks away from the store and inquired "1. The bail shall be sufficiently high

as to his running, but Rodriquez "didn't to give reasonable assurance that the

say nothing. He was afraid." Petitioner undertaking will be complied with.

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

"4. The ability to make bail is to be penalty of life imprisonment or death

regarded, and proof may be taken upon (V.T.C.A., Penal Code, § 12.31). And

this point." when considering the nature of the

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

The primary [**5] object or purpose probable cause as a matter of law, Ex

of an appearance bond is to secure the parte Branch, 553 S.W.2d 380

presence of the defendant in court upon (Tex.Cr.App. 1977); Ex parte Preston,

the trial of the accusation against him. 533 S.W.2d 820 (Tex.Cr.App. 1976); Ex

Fly v. State, 550 S.W.2d 684 parte Sellers, 516 S.W.2d 665

(Tex.Cr.App. 1977); McConathy v. State, (Tex.Cr.App. 1974); Ex parte White, 486

528 S.W.2d 594 (Tex.Cr.App. 1975). S.W.2d 301 (Tex.Cr.App. 1972), the only

While bail should be sufficiently high to testimony as to the circumstances under

give reasonable assurance that the which the offense was committed came

undertaking will be complied with, the from the petitioner. He denied his guilt

power to require bail is not to be used so rf that he was implicated with

as to make it an instrument of Rodriquez, the apparent trigger man in

oppression. See Article 17.15(1) and (2), the murder-robbery alleged. He did

supra; Ex parte Kerr, 549 S.W.2d 6 admit he drove Rodriquez to the grocery

(Tex.Cr.App. 1977); Ex parte Clark, store and subsequently picked him up

supra. several blocks from the store. He stated

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

not petitioner had a past history of It appears to be undisputed that

failing to appear while on bond. appellant was indigent, 5/ and while he

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

testimony as to his indigency was It is so ordered.

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.

PRIOR HISTORY: Appeal from the JUDGES: Sitting: Alfonso Chapa,

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

stated below, we modify the trial court An employee of the appellant bail

action and, as modified, on affirm the bond company determined that Gonzales

judgment. had been incarcerated in the Nueces

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

Appellant (Bexar County Bail Bonds) them by appellant's employee.

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

Notwithstanding Gonzales' failure to convicted and sentenced to five years

appear pursuant to the terms of the imprisonment in the Texas Department

surety bond, he was granted a $ 10,000 of Corrections.

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

Gonzales once again failed to appear for a bill of review and special bill of

and the personal recognizance bond was review and a hearing was conducted on

also forfeited. the amended judgment nisi forfeiting

Gonzales' personal recognizance bond.

June 27, 1990 Notwithstanding the disposition and

The surety company learned that conviction on Gonzales' criminal case

Gonzales was incarcerated at the Federal and notwithstanding the state's insistence

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

denied. opposite party (3) unmixed with any

The procedural vehicle by which the fault or negligence of the petitioner's

appellant surety sought relief is found in own. Alexander v. Hagedorn, 148 Tex.

article 22.17(a) of the Texas Code of 565, 568-69, 226 S.W.2d 996, 998

Criminal Procedure: (1950).

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

A surety also has a right to an legislature intended to abrogate the

equitable proceeding through the Alexander v. Hagedorn general bill of

procedure of a general bill of review. review requirements when it passed

Williams v. State, 670 S.W.2d 717, 722 article [**6] 22.17 in 1987.

(Tex. App.--San Antonio 1984), aff'd as Accordingly, a petitioner under article

modified 707 S.W.2d 40 (Tex. Crim. 22.17 is not required to allege and prove

App. 1986). An original petition for a the Alexander v. Hagedorn elements of a

general bill of review must be brought meritorious defense which could not be

within four years after the date the cause presented because of conduct by the

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

On the other hand, a special bill of v. State, 172 Tex. Crim. 624, 361

review proceeding under article 22.17 S.W.2d 574, 575-76 (Tex. Crim.

should take into account that the object App. 1961), cert. denied, 371 U.S.

and purpose of bail is to secure the 828, 9 L. Ed. 2d 66, 83 S. Ct. 20

presence of the accused for disposition (1962); Ricard v. State, 171 Tex.

of the criminal charges against him and Crim. 456, 350 S.W.2d 938, 938-40

consider other factors including, but not (Tex. Crim. App. 1961); Williams v.

necessarily limited to the following: State, 159 Tex. Crim. 443, 265

S.W.2d 92, 94 (Tex. Crim. App.

1) a bail bond is not punitive, nor is it 1954).

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

principal's appearance. after his rearrest and in view of the

6) The participation of the surety in state's decision not to pursue a $ 10,000

rearresting the principal. 7) The judgment against Mr. Gonzales on his

prejudice suffered by the government. 1 personal recognizance bond.

4) The public interest in law

1 enforcement was served by Mr.

See, e.g., United States v. Gonzales' quick reapprehension.

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

We are also troubled by the apparent code of criminal Procedure be applied

double standard of due process applied similarly to surety bonds and personal

by the state to Mr. Gonzales and the recognizance bonds alike.

appellant surety. On the same day that Accordingly, we sustain the appellant

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

Plaintiff [THE STATE] no longer S.W.2d at 938-40; Williams v. State, 265

desires to prosecute [its] suit against S.W.2d at 95. Taking into account the

Rudolfo L. Gonzales, who is principal requirements of article 22.17 concerning

and surety on this [personal bond] as deduction for court costs, costs for

defendant Rudolfo L. Gonzales has been returning Gonzales to Bexar county and

returned to custody [**9] and the case is the interest accrued on the bond from the

closed, therefore the purpose of the date of forfeiture to the date of rearrest

[personal bond] has been satisfied. (thirty two days), we order that the

(emphasis added). judgment of the trial [**10] court be

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

the appellant surety. The only apparent FRED BIERY,

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

Two months later, the Board suspended Ellen's license. The Board appealed. 3

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).

The Board revoked Ellen's license on 3 Ellen separately appealed the

July 15, 2005 for failing to pay Board's rulings suspending and

judgments pursuant to Occupations later revoking his license. The trial

Code sections 1704.204 [*314] and court consolidated those two de

1704.252. 2 Ellen appealed the Board's novo proceedings, and we resolve

decision to the district court, which both together.

conducted a trial de novo on appeal. The

court found that Ellen failed to pay STANDARD OF REVIEW

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. §

See Tex. Occ. Code Ann. § 1704.252(8) 1704.255(a) (Vernon 2004). The trial

(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

Bail Bond Bd. v. Burns, 881 S.W.2d 61, supported by the evidence. Burns, 881

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

Bail Bond Bd. v. Blackwood, 41 In 1994, we examined the

S.W.3d 123, 127 (Tex. 2001) ("[I]n predecessor statute to section 1704.252

a de novo proceeding it was and concluded that a trial court may not

necessary that the [evidence] renew the license of a bondsman who

required by the statute be before has failed to pay or supersede judgments

the trial court, which was required arising from bond forfeitures. Burns,

to pass on [the license] application 881 S.W.2d at 64. The only choices in

without regard to the Board's that circumstance are revocation or

decision.") (emphasis added). suspension. See generally id. at 64-65

(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

appearance of the accused. See id.; In re an accompanying statutory provision

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

Bd., 127 S.W.3d 42, 47-48 (Tex. App.-- because the statute does not provide this

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

its only choices were to suspend or not follow our own decisions we would

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

Stare decisis is strongest in cases the statute as a whole and interpret it to

involving statutory construction because effectuate every part. See City of

the Legislature may correct perceived Houston v. Jackson, 42 S.W.3d 316,

construction errors through statutory 319-20 (Tex. App.--Houston [14th Dist.]

amendment. See Fiess v. State Farm 2001, pet. dism'd w.o.j.).

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

Ann. § 1.001 (Vernon 2004). We discretion to reinstate if it so chooses.

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

In light of Ellen's challenge to the goes -- but it does not go as far as Ellen

correctness and wisdom of Burns, contends.

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.

reinstate Ellen's license in the face of See, e.g., Aaron Rents, Inc. v. Travis

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

B. Statutory Construction the statute uses the word 'may' or

In construing a statute, our primary 'shall.'"); BWI Cos. v. Beck, 910 S.W.2d

goal is to determine and effectuate 620, 623 (Tex. App.--Austin 1995, orig.

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

. Public interests are to ensure the financial security and

favored over private interests. integrity of bondsmen, "whose business

Id. § 311.021(5). the Act deems to be in the public interest

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

Section 1704.252's key language additional bonds). Accordingly, license

provides that "a board may revoke or applicants must disclose any unpaid

suspend a license if the license holder ... judgments; until such judgments are

fails to pay [*317] a judgment[.]" Tex. paid, applicants are expressly barred

Occ. Code Ann. § 1704.252(8) from licensure. See Tex. Occ. Code Ann.

(emphasis added). This language is § 1704.154(b), (d). Had Ellen disclosed

unambiguous. It gives the trial court the unpaid judgments, the Board would

discretion to choose between revocation have been required to deny his

and suspension. It does not give the trial application. See Blackwood, 41 S.W.3d

court discretion to choose a at 126 ("The Act therefore makes all

reinstatement option that is nowhere application requirements mandatory.").

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

Enforcement of the bail bond act's answer the charges. Tex. Code Crim.

unambiguous provisions is important for Proc. Ann. art. 17.08, § 2. An officer

the proper functioning of the bail who accepts a bail bond must verify the

mechanism. Bail is the security a sufficiency of the [**14] security

criminal defendant gives to evidence his offered. Id. art 17.11, § 1; art. 17.13.

promise that he will appear and answer Those who would act as sureties must

the accusations brought against him. pass several eligibility requirements,

Tex. Code Crim. Proc. Ann. art. 17.01 including possession of sufficient

(Vernon 2005). The primary purpose financial resources; experience in the

[**13] of a bail bond is to secure the bail bond business; and education from

presence of the defendant in court for an accredited [*318] institution of

trial on the offense with which he has higher learning. See Tex. Occ. Code

been charged. McKenna v. State, 247 Ann. § 1704.152.

S.W.3d 716, 719 (Tex. Crim. App. 2008). After becoming licensed, a bondsman

Bail bonds are contracts between the is prohibited from writing bail bonds

surety and the State of Texas. Reyes v. totaling more than ten times the value of

State, 31 S.W.3d 343, 345 (Tex. App.-- the deposited security. Id. §

Corpus Christi 2000, no pet.). The 1704.203(a). Further, a bondsman may

contract consists of the surety's promise not execute additional bail bonds if the

that the defendant will appear before the amount of liability on pending

court. See id. at 346. Forfeiture judgments nisi equals or exceeds twice

judgments recognize that the State may the amount of the deposited security. Id.

incur costs or suffer inconvenience in re- § 1704.203(c). A bondsman must

arresting an accused who fails to appear. promptly pay all forfeiture judgments

See McKenna, 247 S.W.3d at 719. While not later than the 31st day after the date

bail bonds are neither punitive nor a of the judgment, unless superseded on

substitute for fines or revenue devices, appeal. Id. § 1704.204(a). A licensing

they protect the public's interest by board that learns of unpaid final

ensuring the defendant's appearance and judgments must immediately notify the

encouraging the surety's participation in sheriff, who is prohibited from accepting

re-arrest when the defendant does not any bonds from that surety until the

appear. See Gramercy Ins. Co. v. State, judgments have been paid. See id. §

834 S.W.2d 379, 381-82 (Tex. App.--San 1704.2535. These enforcement

Antonio 1992, no writ). provisions protect against a bondsman's

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

In [**15] light of this detailed S.W.2d at 62.

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

entire bail process. The Legislature judgments. Section 1704.252 limits the

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)

Ellen contends that continued (providing for reinstatement of a

adherence to Burns is incompatible with suspended license after the deposit of

judicial review of a board's decision by additional security). By contrast, a

trial de novo in the district court. See bondsman whose license has been

Tex. Occ. Code Ann. §§ 1704.255(a), revoked must reapply for a new license.

1704.256. The basis for this contention See, e.g., Austin v. Harris County Bail

is not clear. The district court's power to Bond Bd., 756 S.W.2d 65, 66 (Tex. App.-

conduct a trial "de novo," that is, a "trial -Houston [1st Dist.] 1988, writ denied).

anew," vests the court with full power to Allowing a trial court to re-hear the

determine the issues and parties' rights, evidence and reach its own

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

Board's factual findings, and ultimate license for unpaid judgments, the trial

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

revocation -- and to exclude no discretion if the bondsman fails to

reinstatement -- [**18] makes section pay or supersede a judgment, and also

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

limit or expand the statute's circumstances, our interpretation of

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

CONCLUSION judgments have been paid.

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

asks that we render judgment in its Justice

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.

JUDGES: Justice Enoch delivered the Applying the discovery rule, the

opinion of the Court. court of appeals held that neither claim

was time-barred. It reasoned that Peat

OPINION BY: CRAIG T. ENOCH Marwick had not presented conclusive

evidence that HCH discovered or in the

OPINION exercise of reasonable diligence should

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

To the contrary, we conclude that were refunded in December 1991. First

Peat Marwick has conclusively Interstate and its shareholder moved for

established that HCH's claims against summary judgment on several grounds,

Peat Marwick accrued more than two including that the bank had not

years before suit was filed. Accordingly, mismanaged the trust funds, that HCH

we reverse the court of appeals' was well informed of the bank's actions

judgment on both the DTPA and through monthly reports, and that HCH's

negligence claims and render judgment claims were barred by the applicable

that HCH take nothing. [*748] statutes of limitations. Without

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

Marwick was to ensure that the trustee On October 1, 1993, while the First

for the bonds, First Interstate Bank of Interstate lawsuit was still pending,

California, complied with the trust HCH learned about Peat Marwick's 1985

indenture. agreement with First Interstate and that

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

On February 1, 1993, HCH filed suit HCH.

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 SeeTex. Civ. Prac. & Rem. carried its burden of showing that there

Code § 16.064(a). is no genuine issue of material fact and

In this case, HCH alleged that Peat that judgment should be granted as a

Marwick, as the trust's auditor, either matter of law. 4 In conducting our

negligently or intentionally failed to review, we take as true all evidence

disclose First Interstate's favorable [**6] to the nonmovant, and

mismanagement of the trust. HCH we make all reasonable inferences in the

further alleged causes of action for nonmovant's favor. 5

breach of warranty (which is not part of

this appeal) and violations of the DTPA. 4 See, e.g., Lear Siegler, Inc. v.

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

selling of the fund assets in 1989 A defendant moving for summary

resulting in a loss in excess of $ 621,000 judgment on the affirmative defense of

-- that HCH alleges in this suit was limitations has the burden to

caused by Peat Marwick's wrongful conclusively establish that defense. 6

conduct. Peat Marwick contends that the Thus, the defendant must (1)

petition against First Interstate conclusively prove when the cause of

demonstrates that HCH knew of its action accrued, and (2) negate the

claim no later than February 1, 1993. discovery rule, if it applies and has been

Apparently in response, HCH amended pleaded or otherwise raised, by proving

its petition to allege that not until as a matter of law that there is no

October 1, 1993, did it learn of Peat genuine issue of material fact about

Marwick's role in the disputed financial when the plaintiff discovered, or in the

irregularities. But it does not appear that exercise of reasonable diligence should

HCH filed a formal response to Peat have discovered the nature of its injury. 7

Marwick's motion for summary If the movant establishes that the statute

judgment or produced any evidence to [**7] of limitations bars the action, the

defeat the motion. As mentioned, the nonmovant must then adduce summary

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 SeeTex. 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

should have discovered [**8] the injury. 13 This is incorrect. The rule in

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 that effective caused injury. 14

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

The summary judgment evidence summary judgment motion. In both

established that the wrongful injury respects, HCH is incorrect.

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

fund assets. Significantly, HCH sued judgment motion 15 and to come forward

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

Indisputably, HCH was aware by then of the fraudulent concealment defense. 16 A

its injury and that its injury was caused mere pleading does not satisfy either

by the wrongful conduct of another. [*750] burden. 17 Thus, even assuming

The loss from the premature sale of that HCH pled fraudulent concealment

the fund assets should have caused HCH as an affirmative defense to Peat [**12]

to investigate not only the possibility Marwick's answer pleading limitations,

that First Interstate had mismanaged the HCH still had to respond to Peat

fund assets, as HCH apparently did Marwick's summary judgment motion.

because it sued First Interstate, but also There is no such response in the record.

Peat Marwick's possible [**11] Therefore, HCH did not carry its burden

involvement in the mismanagement and to both plead the defense and support it

loss. HCH had hired Peat Marwick to do with summary judgment evidence.

annual trust asset audits, including the

reserve fund, to ensure compliance with 15 SeeTex. R. Civ. P. 166a(c);

the trust indenture. Therefore, the loss Hudson v. Wakefield, 711 S.W.2d

should have caused HCH to also 628, 630 n.1 (Tex. 1986); City of

investigate why its auditor, Peat Houston, 589 S.W.2d at 679.

Marwick, did not discover or report the 16 See American Petrofina, Inc.

mismanagement. v. Allen887 S.W.2d 829, 830 (Tex.

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

not begin to run until HCH knew or Second, when a defendant has

should have known of its injury. HCH fraudulently concealed the facts forming

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

Marwick is entitled to summary This Court has never considered

judgment. As with the discovery rule, whether the discovery rule applies to

once HCH knew that it had been injured auditing malpractice claims. Assuming

by fund mismanagement, it should have without deciding that it does, however,

investigated why its auditor, Peat the summary judgment evidence

Marwick, had failed to discover or establishes that HCH knew or should

report the mismanagement to HCH. have known of its negligence claim

Accordingly, fraudulent concealment more than two years before it filed suit.

pleadings do not rescue HCH's DTPA HCH relies on the same wrongfully

claim.III. Accrual of HCH's [**15] caused injury asserted in th

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