i          i      i                                                                 i     i      i




                                 MEMORANDUM OPINION

                                         No. 04-09-00373-CV

                        Octavio CASTANEDA D/B/A Castaneda Bail Bonds,
                                        Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the 229th Judicial District Court, Starr County, Texas
                                     Trial Court No. DC-09-180
                          Honorable Alex William Gabert, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: August 4, 2010

AFFIRMED

           Appellant, Octavio Castaneda d/b/a Castaneda Bail Bonds, appeals the order denying a bill

of review. We affirm.

                                          BACKGROUND

           Castaneda posted a $5,000.00 bond for Juan Amando Cavazos, who was under indictment

for felony possession of cocaine. The bond was forfeited and a judgment nisi was entered on August
                                                                                       04-09-00373-CV



13, 2008, when Juan Amando Cavazos failed to appear for arraignment. The judgment nisi ordered

that the State recover $5,000.00 from Castaneda as the surety on the bail bond unless good cause was

shown for Cavazos’s failure to appear. Citation was issued, directing Castaneda to show cause why

the judgment of forfeiture should not be made final. The officer’s return of service, stating that

Castaneda was personally served with the show cause order on August 21, 2008, is in the record.

On December 23, 2008, the court coordinator sent notice to Castaneda that a show cause hearing was

set for January 29, 2009, at 3:00 p.m. Castaneda filed a pro se answer on January 9, 2009. On

February 4, 2009, the trial court signed a final judgment, ordering Castaneda to pay the State $5,000.

The judgment recites that Castaneda filed an answer, but failed to appear at the hearing. Castaneda

did not timely file a direct appeal from this judgment.

       Castaneda initially filed a petition for bill of review in cause number DC-08-306, the same

cause as the judgment nisi and final judgment. However, he did not pursue that petition and the

record does not reflect any action was taken on it. Castaneda subsequently filed a petition for bill

of review as a new cause. After a brief evidentiary hearing, the trial court signed an order denying

the relief requested in the petition. Castaneda appeals this order.

                                           DISCUSSION

       An equitable bill of review is brought as a new lawsuit and challenges the validity of a prior

judgment that can no longer be directly attacked by other avenues. Caldwell v. Barnes, 975 S.W.2d

535, 537 (Tex. 1998); Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Transworld Fin.

Servs. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). The grounds for granting a bill of review are

narrow because of the fundamental policy in favor of the finality of judgments. Transworld Fin.,

722 S.W.2d at 407. To obtain relief by bill of review, a petitioner must ordinarily show: (1) he


                                                 -2-
                                                                                       04-09-00373-CV



exercised due diligence to avail himself of all adequate legal remedies, (2) he has a meritorious

defense to the cause of action underlying the judgment, (3) that, without any fault or negligence of

his own, (4) he was prevented from making due to the fraud, accident, or wrongful act of the

opponent. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999); Caldwell, 975 S.W.2d

at 537. However, if the petitioner establishes he was not served with process or given notice of a

trial or hearing, then his right to due process was violated, and he need not show a meritorious

defense or wrongful conduct by his opponent, and his want of fault or negligence may be considered

established. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86 (1988); Caldwell, 975 S.W.2d at

537; LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989); Lopez v. Lopez,

757 S.W.2d 721, 723 (Tex. 1988).

       We review the grant or denial of a bill of review under an abuse of discretion standard.

Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We

indulge every presumption in favor of the trial court’s ruling. Narvaez v. Maldonado, 127 S.W.3d

313, 319 (Tex. App.—Austin 2004, no pet.). We will not disturb the trial court’s ruling unless the

court acted in an unreasonable or arbitrary manner or without reference to any guiding rules and

principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). In the absence of

findings of fact and conclusions of law, we presume the trial court found the necessary facts in

support of its judgment if there is any probative evidence to support such findings. Nguyen, 93

S.W.3d at 293-94 (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)).

       Castaneda contends the bill of review should have been granted because he established he

was exonerated from bail bond liability pursuant to article 17.16 of the Texas Code of Criminal

Procedure. However, proof of a meritorious defense to the forfeiture claim is insufficient to set aside


                                                  -3-
                                                                                      04-09-00373-CV



the judgment by bill of review. Castaneda does not argue he was not properly served with process

or notice of the hearing, nor does he point to any evidence that he was prevented from asserting his

defense by the fraud, accident or wrongful act of the State, unmixed with any fault or negligence of

his own. Accordingly, Castaneda has failed to show the trial court abused its discretion.

       The trial court’s order denying the petition for bill of review is affirmed.



                                                       Steven C. Hilbig, Justice




                                                 -4-
