GREEN, MAXIE D. D/B/A a TO Z BAIL BONDS v. the State of Texas

In the Court of Criminal

Appeals of Texas

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No. PD-0008-22

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MAXIE D. GREEN D/B/A A TO Z BAIL BONDS,

Appellant

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review

From the Second Court of Appeals

Wichita County

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YEARY, J., filed a dissenting opinion.

The Court decides that “conclusive proof” that the defendant’s

name was distinctly called at the door of the courtroom door establishes

“conclusively” the statutory element that his name “shall be called

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distinctly at the courthouse door[.]” Majority Opinion at 1 & 15; TEX.

CODE CRIM. PROC. art. 22.02 (emphasis added). 1 This is true, the Court

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decides, not only as a matter of proof at the trial of a bond forfeiture

case, but even for purposes of a summary judgment proceeding. But the

Court’s premise is flawed. The cases upon which it relies do not even

stand for the proposition that evidence that the name was called at the

courtroom door will categorically prove (even as a matter of “substantial

compliance”) that it was called at the courthouse door for purposes of

trial, much less for purposes of a summary judgment proceeding. I

respectfully dissent.

Typically, the judgment nisi will serve to establish at least a

prima facie case in a bond forfeiture proceeding, including evidence of

the necessary element that the defendant’s name was “called distinctly

at the courthouse door[.]” Tocher v. State, 517 S.W.2d 299, 300−01 (Tex.

Crim. App. 1975). It is then up to the defendant or surety to rebut that

prima facie case with evidence that the defendant’s name was not, in

1 Substantively unchanged since its appearance as Article 408 of the

1856 “Old Code,” present Article 22.02 reads:

Bail bonds and personal bonds are forfeited in the

following manner: The name of the defendant shall be called

distinctly at the courthouse door, and if the defendant does not

appear within a reasonable time after such call is made,

judgment shall be entered that the State of Texas recover of the

defendant the amount of money in which he is bound, and of his

sureties, if any, the amount of money in which they are

respectively bound, which judgment shall state that the same

will be made final, unless good cause be shown why the

defendant did not appear.

TEX. CODE CRIM. PROC. art. 22.02 (emphasis added).

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fact, called at the courthouse door. Id. at 301. If he cannot, then the trial

court does not err to grant a State’s motion for summary judgment.

But that assumes that a judgment nisi actually recites that the

defendant’s name was called at the courthouse door, as in Tocher itself.

Id. at 300; see Swaim v. State, 498 S.W.2d 188, 191 (Tex. Crim. App.

1973) (uncontested judgment nisi recital that the defendant’s name was

called at the “courthouse door” served as conclusive proof). Here, the

judgment nisi does not. Instead, it recites that the defendant’s name was

called out at the courtroom door. And that is functionally the only

evidence the State had to offer relating to this element of its bond

forfeiture case—or, at least, it was all that the State did offer for

purposes of its motion for summary judgment. 2 1F

In my view, such a recitation in a judgment nisi may only serve

to shift the burden of proof to the defendant with respect to the statutory

element requiring proof of calling a name at the “courthouse” door if the

words “courtroom” and “courthouse” are synonymous, or if evidence of

“courtroom” will always, without more, prove “courthouse.” The Court

today does not declare the two terms to be synonymous—presumably

because, manifestly, they are not. 3 But it does effectively declare that

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2The two unanswered requests for admissions, to the extent they prove

anything at all, also refer to whether Appellant’s name was called at the

“courtroom door,” not the courthouse door. Majority Opinion at 3.

3 Given the statute’s long lineage, see note 1, ante, it might be thought

that for this Court to construe the word “courthouse” in Article 22.02 to mean

courtroom door would make it more functional in the modern age of multistory

courthouses. After all, it seems even to me that a defendant is more likely to

be found waiting in the common area outside the courtroom door than in the

common area (if any) outside the main door of a large modern courthouse. But

that is not a choice for this Court to make, consistent with separation of powers,

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calling a defendant’s name at the courtroom door will always suffice to

prove his name has been called at the courthouse door—categorically—

as a matter of “substantial compliance.” 4 And from this premise the

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TEX. CONST. art. II, § 1, and I am gratified that the Court today does not take

such an approach to construing the statute.

4 I am somewhat troubled by the ease with which some courts—in this

case and in others—decide that “substantial compliance” with a statutory

mandate is all that is necessary to show what a legislative enactment

manifestly requires. When the Legislature permits “substantial compliance”

with a procedural mandate to be sufficient, it knows how to say so. E.g., TEX.

CODE CRIM. PROC. art. 26.13(c) (“In admonishing the defendant [during a

guilty plea proceeding], substantial compliance by the court is sufficient[.]”)

(emphasis added). It has not explicitly said so in Article 22.02. The Court also

points to “numerous decisions from the intermediate appellate courts

upholding grants of summary judgment when the facts conclusively

demonstrated substantial compliance with the pertinent statute.” Majority

Opinion at 11, n.9. But at least some of the intermediate court opinions pointed

to by the Court address statutes that themselves appear to contain legislative

authorization to apply at least the equivalent of a substantial compliance

standard. See, e.g., United Fire & Cas. Co. v. Boring & Tunnelling Co. of Am.,

321 S.W.3d 24 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (applying

TEX. GOV’T CODE § 2253.041, which in part provides: “(c) The notice must be

accompanied by a sworn statement of account that states in substance: . . .”)

(emphasis added); Richardson v. Mid-Cities Drywall, Inc., 968 S.W.2d 512

(Tex. App.—Texarkana 1998, no pet.) (applying TEX. PROP. Code § 53.054,

which in part provides: “(a) The affidavit must be signed by the person claiming

the lien or by another person on the claimant’s behalf and must contain

substantially: . . .”) (emphasis added). Again, the statute at issue here contains

no such language. And all of this leads me to question whether a court may

properly, consistent with the constitutional mandate of separated powers,

declare “substantial compliance” with a law sufficient when the Legislature

itself has not authorized it to do so.

I agree that there may be some ineluctable wiggle room within which

courts must determine what it means to conduct a required procedure “at” the

courthouse door. See note 5, post. Must the defendant’s name be called out

literally on the threshold of the courthouse door, or will two feet in front of or

behind the threshold suffice? In any event, here, even assuming the

applicability of the cases that the Court says permit substantial compliance,

the State’s summary judgment evidence was deficient, for the reasons

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Court reasons that a judgment nisi that recites “courtroom door,” if not

refuted by the defendant, will always serve “conclusively” to prove

“courthouse door,” even for purposes of a summary judgment

proceeding.

But still, the cases that the Court cites in support of its premise

do not say what the Court suggests they do. Majority Opinion at 8−10.

They do not hold that proof of calling the defendant at the “courtroom

door” will categorically constitute at least substantial compliance with

the State’s burden to show calling the defendant at the “courthouse

door.” Instead, each of those cases looks to the specific facts presented to

determine, circumstantially, whether what the State showed to have

happened constituted the functional equivalent of calling the

defendant’s name “at the courthouse door[.]” TEX. CODE CRIM. PROC. art.

22.02 (emphasis added). The cases do not hold that proof of calling at

the “courtroom door” will always serve as proof of calling “at the

courthouse door,” no matter the circumstances—even for purposes of a

bond forfeiture trial, much less of a summary judgment proceeding.

In Deem v. State, 342 S.W.2d 758, 759 (Tex. Crim. App. 1961), the

earliest case cited by the Court today, the judgment nisi recited that the

defendant’s name “was called distinctly at the door of the court house.”

The defendant’s sureties argued that the judgment nisi was incorrect in

this regard, and testimony was adduced from a deputy district clerk that

the defendant’s name “was called . . . outside the court room door, but

that he did not know if it was also called at the main door of the court

developed in the text post. For the present, therefore, I will say no more about

the propriety of a “substantial compliance” construction of Art. 22.02.

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house.” Id. (emphasis added). In rejecting the sureties’ claim, the Court

simply stated: “It is concluded that there was a substantial compliance

with the requirement that the name of the principal be called distinctly

at the court house door. Caldwell et al. v. State, 136 Tex.Cr.R. 524, 126

S.W.2d 654.” Id. The opinion in Deem does not say exactly how far

“outside the court room door” the defendant’s name was called, but its

reliance upon Caldwell suggests that this would have been a relevant

consideration.

In Caldwell, the judgment nisi recited that the defendant’s name

was called “at the door of the court house[,]” but facts adduced at the

trial to determine whether the judgment nisi should be made final made

it clear that this recitation was not literally accurate. 136 Tex.Cr.R. 524,

525, 126 S.W.2d 654, 655 (1939). The facts in Caldwell did not show that

the defendant’s name was called at the door of the courtroom either.

Instead, the deputy sheriff stood at a cigar stand in the large lobby

(“seventy-five feet long and twenty or thirty feet wide”) outside of the

courtroom, but “within four steps (12 feet) of the outer door of the court

house[,]” and called the defendant’s name from there. Id. In determining

whether this would satisfy the statutory mandate that the name be

called “at the court house door[,]” the Court invoked an even earlier case

from the Texas Supreme Court construing the word “at” in the context

of the phrase “at the door of the court house[.]” Id. 136 Tex.Cr.R. at

526−27, 126 S.W.2d at 655−56 (quoting Howard v. Fulton, 79 Tex. 231,

236, 14 S.W. 1061, 1062 (1891)). 5 The Caldwell Court concluded: “The

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5 The question in Howard was whether a notice of trustee sale of land,

which by the terms of the mortgage instrument was to be posted “at the court-

house door,” was properly situated when it was literally posted on a bulletin

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place from which appellant’s name was called when the forfeiture was

taken on his bond was within such reasonable distance of the court

house door as under the circumstances to be in substantial compliance

with the law requiring that his name be called at the door.” Id. 136

Tex.Cr.R. at 656, 126 S.W.2d at 527. 6 5F

In Bennett v. State, 394 S.W.2d 804, 807 (Tex. Crim. App. 1965),

the judgment nisi recited, as in Deem, that the defendant’s name was

called at the courthouse door. Testimony at trial showed that the bailiff

had been directed to call the name “outside in the hallway of the

courtroom on the fourth floor of the courthouse[.]” Id. Because the

judgment nisi recited that the defendant’s name had in fact been called

at the courthouse door, and no evidence showed that the bailiff did not

also do that, the Court suggested that the defendant and sureties failed

to rebut the State’s prima facie case. Id. The Court then remarked: “Be

that as it may, under the recent decision of this court in Deem, et al., v.

State, the record shows substantial compliance with the requirement of

board in the courthouse some forty feet away, but “in open view from the

door[.]” The Supreme Court determined that the word “at” was less precise in

terms of designating spatial relationships than the words “in” or “on” would be,

and opined that “[w]e do not think that the legislature meant, nor do we think

the parties to the mortgage under consideration intended, that the notice

should be posted on or in the door.” 79 Tex. at 236, 14 S.W. at 1062.

6Who is to say whether the Court would have concluded in Caldwell

that the place from which the name was called would have been within a

“reasonable distance” of the courthouse door had the evidence been that the

deputy sheriff stood at the courtroom door? That door could have been as much

as seventy-five feet away from the courthouse door, and it is hard to imagine

the Court would so readily have found that distance to be “reasonable . . . under

the circumstances” so as “to be in substantial compliance with the law

requiring that [the defendant’s] name be called at the [courthouse] door.”

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Art. 425 [now Article 22.02], that the name of the principal be called,

distinctly, at the courthouse door.” Id. As in Deem, however, there was

no evidence that the name was called precisely “at the courtroom door.”

Neither Deem nor Bennett may be read fairly to stand for the

proposition that calling the name merely from the courtroom door will

invariably constitute “substantial compliance” with Article 22.02, since

neither presents those facts, and both may have been resolved

alternatively on the basis that the prima facie showing from the

judgment nisi (reciting that the defendant’s name was called from the

“courthouse door”) was, in any event, unrebutted. 7 The judgment nisi in

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this case simply recites that the defendant’s name was called at the

courtroom door. Not in the hallway outside the courtroom door, and

certainly not within twelve feet (or some other “reasonable distance”) of

the courthouse door.

The Court reads its precedents for the proposition that a

judgment nisi that recites the bare fact that the name was called at the

courtroom door will always constitute prima facie proof, at least by

substantial compliance, that the name was called at the courthouse door,

and reasons from that premise that when that prima facie proof goes

7 The Court also cites Tocher for its observation that Bennett stands for

the proposition that the calling of the principal’s name outside in the hallway

of the fourth floor of the courthouse is in substantial compliance with the

requirement in Art. 22.02, V.A.C.C.P., that the name be called distinctly at the

courthouse door. Majority Opinion at 9. But substantial compliance was “not

an issue” in Tocher, as the Court there expressly recognized. Tocher, 517

S.W.2d at 300. Instead, the Court upheld the forfeiture because the judgment

nisi recited that the defendant’s name had been called out literally at the

courthouse door, and no evidence at the bond forfeiture hearing suggested

otherwise.

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unrebutted, then summary judgment is appropriate. But the cases do

not support the premise that proof of “courtroom door,” without more,

will invariably constitute proof of “courthouse door.” 8 It seems to me

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that a judgment nisi that recites no more than this bare fact fails to

satisfy the State’s burden of proof in the first place, and it does not

trigger any duty of rebuttal from a defendant or his sureties in order to

avoid summary judgment.

By no means do I attempt here to resolve whether the statute at

issue in this case was complied with, substantially or otherwise. I only

object to the Court’s decision that this case was properly resolved by

summary judgment. I am persuaded that the Court misreads our

precedents. Moreover, whatever the Court may conclude about the

wisdom of our precedents (those that the Court reads today to invariably

allow calling a name at the courtroom door instead of the courthouse

door), I consider it my duty to apply deference to the legislative

determination to require calling that name at the courthouse door. To

the degree that the Court assumes that calling a name at a courtroom

door is the functional equivalent, always, of calling a name at a

courthouse door, its decision fails to defer to our Legislature’s own policy

decisions, as reflected in our statutory law.

I respectfully dissent.

8 I am not the only judge on this Court to have ever understood the cases

in essentially this way. As former Judge Overstreet observed: “When the

argument against the practice of calling the name at the courtroom door is

raised, this Court’s opinions have construed substantial compliance to mean

either: (1) reasonable distance to the courthouse door, as opposed to the

courtroom door; or (2) lack of evidence to show otherwise.” Alvarez v. State, 861

S.W.2d 878, 885 (Tex. Crim. App. 1992) (Overstreet, J., concurring in part and

dissenting in part).

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FILED: June 28, 2023

PUBLISH