Benson, Tom

PD-1275-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/28/2015 9:54:15 AM

Accepted 12/28/2015 12:49:55 PM

NO. PD-1275-15 ABEL ACOSTA

CLERK

IN THE

TEXAS COURT OF CRIMINAL APPEALS

________________________________________________

THE STATE OF TEXAS, Petitioner

v.

TOM BENSON, Respondent

________________________________________________

No. 03-15-00121-CR

In the Court of Appeals for the

December 28, 2015 Third District of Texas at Austin

No. C-1-CV-14-002294

County Court at Law No. 7

Travis County, Texas

________________________________________________

PETITIONER’S MOTION FOR REHEARING

________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

The State of Texas files this Motion for Rehearing, respectfully

requesting that the Court reconsider its order refusing the State’s petition

for discretionary review because articles 22.13(a)(5) and 22.13(b) of the

Texas Code of Criminal Procedure constitute an unconstitutional reduction

in the liability of the surety and principal to the State for a bond forfeiture

in violation of Article III, § 55 of the Texas Constitution.

Petitioner’s Motion for Rehearing Page 1

Relying on articles 22.13(a)(5)(A) and 22.13(b)1 of the Texas Code of

Criminal Procedure, Tom Benson, the surety, asserts that his liability to the

State under Chapter 22 of the Code of Criminal Procedure for the forfeiture

of a bail bond he made with Brian Whipple, the principal, should be greatly

reduced because Mr. Whipple was allegedly incarcerated in Las Vegas

within 180 days after he failed to appear in Travis County. This statutory

reduction in liability, however, violates Article III, § 55 of the Texas

Constitution, which provides:

The Legislature shall have no power to release or extinguish, or

to authorize the releasing or extinguishing, in whole or in part,

the indebtedness, liability or obligation of any corporation or

individual, to this State or to any county or defined subdivision

thereof, or other municipal corporation therein, except

1 These statutes provide:

(a) The following causes, and no other, will exonerate the defendant and his

sureties, if any, from liability upon the forfeiture taken:

. . .

5. The incarceration of the principal in any jurisdiction in the United

States:

(A) in the case of a misdemeanor, at the time of or not later than the

180th day after the date of the principal's failure to appear in

court[.]

(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. articles 22.13(a)(5)(A) & 22.13(b).

Petitioner’s Motion for Rehearing Page 2

delinquent taxes which have been due for a period of at least

ten years.

Tex. Const. Art. III, § 55.

The courts have construed this provision to prohibit the Legislature

from releasing or diminishing an obligation to the State unless there is

consideration for doing so.2 Over forty years ago, the Texas Supreme Court

was faced with the issue of whether another statutory reduction of a

surety’s liability for a bond forfeiture violated Article III, § 55. Robinson v.

Hill, 507 S.W.2d 521 (Tex. 1974) (a copy of this opinion is attached to this

motion). The statute at issue3 authorized a court to remit at least fifty

percent of the amount paid on a judgment of bond forfeiture where the

principal had, as a result of money spent or information furnished by the

surety, been rearrested and returned to the county within 120 days after

the date of final judgment on the bond forfeiture. The Court found that this

reduction in liability was supported by consideration (i.e., the principal

was arrested as a result of money spent or information furnished by the

2 See City of Beaumont v. Fertitta, 415 S.W.2d 902, 906 (Tex. 1967); State v. City of

Austin, 160 Tex. 348, 331 S.W.2d 737, 742 (1960) (“After the occurrence of events which

under the law then existing give rise to an obligation on the part of an individual or

corporation to the state, the Legislature has no power to release or diminish that

obligation without consideration.”)

3 Tex. Rev. Civ. Stat. art. 2372p-3, § 12(a), which has since been repealed.

Petitioner’s Motion for Rehearing Page 3

surety), and thus, did not violate Article III, § 55. Robinson v. Hill, 507

S.W.2d at 526.

Unlike the statute at issue in Robinson, article 22.13(a)(5) and article

22.13(b) do not require the surety to engage in any conduct that leads to the

arrest of the principal. The Legislature has not required the surety to even

look for the principal after the failure to appear, let alone provide any type

of assistance to law enforcement in returning the principal to the criminal

justice system. Indeed, the surety need not even know about the principal’s

arrest at the time it occurs to have his or her liability reduced. Absent any

requirement that the surety do anything that contributes to the principal’s

arrest, a reduction of the surety’s liability under article 22.13(a)(5) and

article 22.13(b) for a fortuitous arrest of the principal is not supported by

consideration. Thus, this statutory reduction in the liability of the principal

and surety to the State for a bail bond forfeiture is unconstitutional.

In significant contrast to article 22.13(a)(5) and article 22.13(b), the

discretionary remittitur provisions in articles 22.16(b) and 22.17(a) require

the surety’s participation in the principal’s arrest before the court can

reduce the surety’s liability. McKenna v. State, 247 S.W.3d 716, 719 (Tex.

Crim. App. 2008)

Petitioner’s Motion for Rehearing Page 4

So that the Texas Constitution might be upheld and that the State

might be protected from an unconstitutional reduction in a liability owed

to it, the State of Texas respectfully requests that this Court grant this

motion for rehearing, grant its petition for discretionary review, reverse the

decision of the Third Court of Appeals, and affirm the judgment of the trial

court.

Respectfully submitted,

DAVID A. ESCAMILLA

TRAVIS COUNTY ATTORNEY

By: /s/ 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

Attorneys for the State of Texas, Petitioner

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Tex. R. App. P. 79.2(c), the foregoing

Motion for Rehearing is grounded on substantial intervening

circumstances or on other significant circumstances that are specified in the

motion and that the motion is made in good faith and not for delay.

/s/ Tim Labadie

Tim Labadie

Petitioner’s Motion for Rehearing Page 5

CERTIFICATE OF SERVICE

I hereby certify that on December 28, 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

Tim Labadie

Petitioner’s Motion for Rehearing Page 6

Robinson v. Hill, 507 S.W.2d 521 (1974)

Burden of Proof



 It is to be presumed that

 the legislature has not acted

unreasonably or arbitrarily, and

 

  ! "#!!$" the burden is on one who

% challenges an act to establish its

&$'(("#$)*$! unconstitutionality.

! "#!!

51 Cases that cite this headnote

 +,, - ./& 0" 1,

- &2$34$2#2! " 1,

[2] Statutes

Class action was brought against officials Subjects and titles of statutes

of Harris County and of state to challenge Statutes

constitutionality of statute providing for Acts Relating to One or More

licensing and regulation of bail bondsmen. Subjects; Single-Subject Rule

The District Court No. 55,Harris County, Both constitutional provision that no

Compton, J., denied plaintiffs' application for a bill shall contain more than one

temporary injunction, and plaintiffs appealed. subject which shall be expressed

The Supreme Court, Walker, J., held that such in the title and questioned statute

statute does not violate constitutional provision are to be liberally construed in

that no bill shall contain more than one subject favor of constitutionality. Vernon's

which shall be expressed in its title, that Ann.St.Const. art. 3, § 35.

such statute is a general law, and is not an

unconstitutional special and local law, and that 19 Cases that cite this headnote

$500 fee that must accompany the original

application for a license and $250 renewal fee

[3] Statutes

are license fees imposed in exercise of police

In general; construction of title

power, and are not occupational taxes.

A statute will not be held

Affirmed. unconstitutional, as failing to comply

with requirement that no bill shall

contain more than one subject which

shall be expressed in its title,

West Headnotes (10) where its provisions relate, directly,

or indirectly, to the same general

[1] Constitutional Law subject, have a mutual connection,

Presumptions and Construction and are not foreign to the subject

as to Constitutionality expressed in the title. Vernon's

Constitutional Law Ann.St.Const. art. 3, § 35.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Robinson v. Hill, 507 S.W.2d 521 (1974)

Primary and ultimate test of whether

12 Cases that cite this headnote a law is general or special is whether

there is a reasonable basis for the

[4] Statutes classification it makes and whether

What Constitutes Sufficient or the law operates equally on all within

Insufficient Title the class. Vernon's Ann.St.Const. art.

3, § 56.

Statutes

Comprehensiveness 7 Cases that cite this headnote

Constitutional provision that no bill

shall contain more than one subject

which shall be expressed in its title [7] Bail

requires only that the title state the Sureties

general subject; it need not explain Statutes

the details. Vernon's Ann.St.Const. Trade or business

art. 3, § 35. Statute providing for licensing and

regulation of bail bondsmen, which

3 Cases that cite this headnote may not apply to counties having

a population of less than 150,000,

[5] Bail does not constitute an unreasonable

Sureties classification by reason of alleged

fact that counties just on either

Statutes

side of population line are similarly

Trade or business

situated, or that there are excluded

Statute providing for licensing and counties constituting part of same

regulation of bail bondsmen does not metropolitan area as included

violate constitutional requirement counties. Vernon's Ann.St.Const. art.

that no bill shall contain more than 3, § 56; Vernon's Ann.Civ.St. art.

one subject which shall be expressed 2372p–3, §§ 3, 3(c), 5, 13.

in its title. Vernon's Ann.Civ.St. art.

2372p–3; V.A.T.S. Insurance Code, 5 Cases that cite this headnote

art. 21.14; Vernon's Ann.St.Const.

art. 3, § 35.

[8] Bail

3 Cases that cite this headnote Sureties

Statutes

Trade or business

[6] Statutes

General laws compared and Statute providing for licensing and

distinguished regulation of bail bondsmen is a

general law, and does not violate

Constitution as a special and local

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Robinson v. Hill, 507 S.W.2d 521 (1974)

law, even if the statute does not does not violate constitutional

apply to counties having a population provision prohibiting the legislature

of less than 150,000. Vernon's from releasing or extinguishing

Ann.St.Const. art. 3, § 56; Vernon's the liability or obligation of any

Ann.Civ.St. art. 2372p–3, §§ 3, 3(c), corporation or individual to the

5, 13. state or to any county or municipal

corporation. Vernon's Ann.Civ.St.

7 Cases that cite this headnote art. 2372p–3, § 12; Vernon's

Ann.St.Const. art. 3, § 55.

[9] Bail

2 Cases that cite this headnote

Sureties

$500 original application fee and

$250 renewal fee, provided for in

statute relating to the licensing of

Attorneys and Law Firms

bail bondsmen, are license fees

imposed in exercise of police *523 Heath & Associates, Bob Heath,

power and are not occupation taxes Houston, for appellants.

in contravention of Constitution.

Vernon's Ann.Civ.St. arts. 1738a, John L. Hill, Atty. Gen., Calvin Botley, Asst.

2372p–3; Vernon's Ann.St.Const. Atty. Gen., Austin, Carol S. Vance, Dist. Atty.,

art. 8, §§ 1, 2. Joe S. Moss, Asst. Dist. Atty., Houston, for

appellees.

Cases that cite this headnote

Opinion

[10] States WALKER, Justice.

Rights and remedies of state on

contracts in general, and debts due This is a direct appeal as authorized by Article

state 1738a, Vernon's Ann.Tex.Civ.St. Suit was filed

Statute providing for licensing and by J. W. Robinson et al, appellants, as a

regulation of bail bondsmen, insofar class action against several officials of Harris

as it authorizes the court to remit County and of the State of Texas, appellees, to

at least 50% of amount paid on a challenge the constitutionality of Article 2372p

judgment of bond forfeiture where —3, V.A.T.S., which provides for the licensing

the principal has, as the result and regulation of bail bondsmen. The suit

of money spent or information was brought on behalf of lawyers, insurance

furnished by the surety, been agents and others who had previously written

rearrested and returned to the county bail bonds to obtain a judgment declaring the

within 120 days after the date of final statute unconstitutional and enjoining appellees

judgment on the bond forfeiture, from implementing, administering or enforcing

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Robinson v. Hill, 507 S.W.2d 521 (1974)

its provisons. Appellants' application for a of a $250.00 renewal fee. Upon notice from

temporary injunction having been denied by the the board that an original application has been

trial court, they perfected their appeal to this tentatively approved, the applicant is required

Court. We affirm. to deposit $5,000.00 in cash or its equivalent

with the county treasurer to be held as a special

Article 2372p—3 declares that the business of bond security fund and also to execute in

executing bail bonds is a business affecting trust to the sheriff a deed to non-exempt real

the public interest. It further declares that the property of the value of at least $10,000.00. The

policy of the State is to provide reasonable cash deposit and any money realized from the

regulation to the end that the right of bail trust may be used to pay any judgments of bail

be preserved and implemented by just and forfeiture for which the licensee is liable and

practical procedures governing the giving or that are not satisfied within 30 days.

making of bail bond and other security to

guarantee appearance of the accused. A county *524 A corporation otherwise authorized to

bail bond board is created in each county act as a surety must meet the same requirements

having a population of $150,000 or more as an individual before being acceptable as a

according to the last preceding federal census. ‘personal surety’ on a bail bond. Its certificate

The board is authorized to promulgate rules and to do business issued by the State Board

regulations relative to the making of bail bonds of Insurance is not conclusive as to the

by bondsmen within the county. ‘Bondsman’ is sufficiency of the security or the solvency

defined as any person who, for compensation of the corporation. Before acting as a surety,

and as many as five times in any 12-month moreover, the company is required to file with

period, deposits cash or securities or executes the county clerk of the county where the bond

as surety any bond to assure appearance. is to be given a power of attorney designating

Subject to certain exemptions, no person may an agent or agents to execute bail bonds, and

act as a bondsman unless licensed by the board any agent so designated may execute bail bonds

under the Act. The following are exempted for his company even though he is not licensed

from the license requirements: (1) members of as a local recording agent in accordance with

the State Bar who personally execute bonds Article 21.14 of the Texas Insurance Code.

for persons they actually represent in criminal [1] In passing upon the constitutionality

cases; (2) persons executing bonds in counties of a statute, we begin with a presumption

having a population of less than 150,000 of validity. It is to be presumed that

according to the last preceding federal census; the Legislature has not acted unreasonably

and (3) persons who execute bonds as co- or arbitrarily, and the burden is on

sureties with a licensed bondsman. one who challenges an act to establish

its unconstitutionality. Smith v. Craddick,

An application for an original license, which Tex.Sup., 471 S.W.2d 375; Smith v. Davis,

expires 24 months after the date of its issuance, Tex.Sup., 426 S.W.2d 827, and authorities

must be accompanied by a fee of $500.00. there cited. Appellants contend that Article

The license may be renewed for a period of 2372p—3 violates several provisions of the

12 months upon application and the payment Texas Constitution. They say, in the first place,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Robinson v. Hill, 507 S.W.2d 521 (1974)

that the caption does not comply with the certain recommendations or

requirement of Art. III, Sec. 35, that no bill suggestions as to an attorney or

shall contain more than one subject which shall particular bondsman; providing

be expressed in its title. The statute now in penalties; and declaring an

question was adopted by the 63rd Legislature emergency.

in 1973. Acts 1973, 63rd Leg., p. 1520, ch. 550.

The title of the Act reads as follows:

An Act relating to the licensing

and regulation of persons Appellants insist that this title contains the

or corporations who engage following four subjects: (1) county bail bond

in the business of executing board; (2) special powers and duties of sheriffs;

bail bonds and establishing a (3) corporations acting as sureties; and (4)

County Bail Bond Board in amending Article 21.14 of the Insurance Code.

certain counties; providing for We do not agree. The author of the interpretive

the composition, organization commentary in Vernon's Annotated Texas

and powers, duties, and Constitution, states that the purpose of Art. III,

procedures of the board; Sec. 35, is threefold:

providing forms and content First, it is designed to prevent log-rolling

of applications for licenses and legislation, I.e., to prevent the writing of several

for fees, deposits and deeds subjects having no connection with each other

in trust to secure payment in one bill for the purpose of combining various

of judgments; making certain interests in support of the whole.

requirements of corporations

acting as sureties; providing Second, it prevents surprise or fraud upon

for renewal of licenses, legislators by means of provisions in bills of

renewal fees and identifying which the titles give no intimation, and which

number of license; providing might therefore be overlooked and carelessly

procedures for and reasons and unintentionally adopted.

for refusal to issue or

for revocation of licenses; Third, it permits the people to be fairly

providing for judicial review; apprised of the subjects of legislation under

providing for remittitur to consideration, so that they may have an

principal in certain situations; opportunity of being heard if they so desire.

providing special powers and

duties of sheriff; providing [2] [3] Both the constitutional provision

extra-county authority of and the questioned statute are to be liberally

licensed bondsmen; prohibiting construed in favor of constitutionality. The

execution of bonds or statute will not be held unconstitutional

advertising as a bondsman by *525 where its provisions relate, directly or

unlicensed persons; prohibiting indirectly, to the same general subject, have

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Robinson v. Hill, 507 S.W.2d 521 (1974)

a mutual connection, and are not foreign to less than 150,000. Section 3(c) declares that

the subject expressed in the title. See Hayman the provisions of the Act do not apply ‘to

Const. Co. v. American Indem. Co., Tex.Sup., the execution of bail bonds' in such counties,

471 S.W.2d 564; Key Western Life Ins. Co. and it could be argued with considerable force

v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d that several provisions of the statute deal with

839; Central Ed. Agency v. Independent School matters other than the execution of bail bonds.

Dist. of City of El Paso, 152 Tex. 56, 254 See, for example, Section 13. Be that as it

S.W.2d 357; Adams v. San Angelo Waterworks may, the statute is not a special and local law

Co., 86 Tex. 485, 25 S.W. 605; Continental even though Section 3(c) means that none of

Bus System, Inc. v. Carney, Tex.Civ.App., its provisions shall apply in counties having

310 S.W.2d 676 (wr. ref). In this instance the a population of less than 150,000. Although

several matters that appellants say are different appellants argue to the contrary, the words

subjects actually relate to the same general ‘last preceding federal census' in Sections 3

subject, i.e. the licensing and regulation of bail and 5 refer not to the 1970 census but to the

bondsmen, and that general subject is expressed last census prior to the time the applicability

in the title. and effect of the law is to be determined in

a particular situation. See City of Ft. Worth

[4] [5] There is no merit in appellants' v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, 41

contention that the caption is fatally deficient in S.W.2d 228. At the present time the statutory

that it fails to disclose that the Act's provisions provisions covered by the limitation set out

do not apply to the execution of bail bonds in these two sections apply only in eleven

in counties having a population of less than counties, but changes in population may bring

150,000 according to the last preceding federal additional counties under these provisions and

census. See Tarrant County Water Control and exclude others that are now governed thereby.

Imp. Dist. No. 1 v. Fowler, 142 Tex. 375, 179 [6] [7] [8] Assuming as we do at this

S.W.2d 250; Austin v. Gulf, C. & S.F.R. Co., 45 point that the statute by its terms does not

Tex. 234. See also Pottorff v. El Paso-Hudspeth apply throughout the State, the primary and

Counties Road Dist., 5th Cir., 62 F.2d 498. ultimate test of whether the law is general or

Art. III, Sec. 35, requires only that the title special is whether there is a reasonable basis

state the general subject; it need not explain for the classification it makes and whether

the details. State v. Spartan's Industries, Inc., the law operates equally on all within the

Tex.Sup., 447 S.W.2d 407. In our opinion the class. See Board of Man. of Harris Co. Hosp.

statute does not violate Art. III, Sec. 35. Dist. v. Pension Bd., Tex.Sup., 449 S.W.2d

33; Smith v. Davis, Tex.Sup., 426 S.W.2d

827; Rodriguez v. Gonzales, 148 Tex. 537,

Appellants also contend that the statute is a 227 S.W.2d 791, and authorities there cited.

special and local law and, as such, contravenes The Legislature in this instance may well have

Art. III, Sec. 56, of our Constitution in a number concluded that bail bondsmen in the more

of respects. We do not agree. It is not entirely populous counties should be regulated and

clear to us that the statute has no force or effect required to secure their obligations because of

whatsoever in counties having a population of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Robinson v. Hill, 507 S.W.2d 521 (1974)

the high incidence of crime and the difficulties to be license fees, and there is nothing in the

involved in enforcing bond forfeitures and present record indicating that they are not.

determining the net worth of persons engaged We accoridngly hold that, for purposes of this

in the business of writing bonds, but that appeal, the exactions are license fees imposed

the same safeguards and procedures were not in the exercise of the police power and are

necessary and would be unduly burdensome not occupation taxes. See Brown v. City of

in more sparsely populated areas. There is a Galveston, 97 Tex. 1, 75 S.W. 488.

reasonable basis for the classification made by

the law, and the classification is broad enough

to include a substantial class. The fact that As previously indicated, it is our opinion that

counties just on either side of the population there is a reasonable basis for the Legislature's

line are similarly situated, or that *526 there regulating and requiring additional security

are excluded counties constituting part of the from bondsmen in the more populous counties

same metropolitan area as included counties, without making the same requirements with

does not make the classification unreasonable. respect to bail bondsmen in the counties having

Any classification on the basis of population is a smaller population. Since the classification is

subject to this complaint, and that circumstance reasonable, the statute does not deny appellants

alone is not a sufficient basis for holding the equal protection of the law.

statutory classification unconstitutional. The [10] By their point of error No. 7, appellants

Legislature has rather broad power to make attack the provisions of Sec. 12 of the Act

classifications for legislative purposes, and which authorize the court to remit at least 50

there is nothing here to suggest that the line per cent of the amount paid on a judgment of

drawn is arbitrary or capricious or a mere bond forfeiture where the principal has, as a

device used for the purpose of giving a local result of money spent or information furnished

law the appearance of a general law. See Miller by the surety, been rearrested and returned to

v. El Paso County, 136 Tex. 370, 150 S.W.2d the county within 120 days after the date of

1000. In our opinion the statute is a general law final judgment on the bond forfeiture. They

and does not violate Art. III, Sec. 56, of the say that these provisions violate Art. III, Sec.

Texas Constitution. 55, of the Texas Constitution, which prohibits

the Legislature from releasing or extinguishing

[9] Appellants further contend that the the liability or obligation of any corporation

$500.00 fee that must accompany an original or individual to the State or to any county

application for a license and the $250.00 or municipal corporation. In our opinion the

renewal fee are occupation taxes. They insist provisions in question do not contravene Art.

that as such these fees contravene Art. VIII, III, Sec. 55, because the court is authorized

Sections 1 and 2, of the Texas Constitution, to order the remittitur only when the principal

because no occupation tax has been levied by was rearrested as a result of money spent

the State on the business of writing bail bonds. or information furnished by the surety. The

The fees in question are prescribed by a statute remittitur is thus supported by a consideration

that is regulatory in nature. They are presumed deemed adequate by the Legislature, and we

cannot say it is so inadequate that the provision

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Robinson v. Hill, 507 S.W.2d 521 (1974)

for a remittitur is unconstitutional. See City

The judgment of the trial court is affirmed.

of Beaumont v. Fertitta, Tex.Sup., 415 S.W.2d

902; State v. City of Austin, 160 Tex. 348, 331 All Citations

S.W.2d 737.

507 S.W.2d 521

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8