# Tom Benson v. State > Texas Court of Appeals, 3rd District (Austin) · May 29, 2015 URL: https://www.frixlaw.com/law-library/cases/4067315 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** May 29, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4067315 ## How later opinions describe it (automated extraction) - applying the grounds for revocation or We review the trial court's factual suspension to license renewal ## Opinion text 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. -3- 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4067315. Public record. Not legal advice.