









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00065-CV
______________________________


INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 149th Judicial District Court
Brazoria County, Texas
Trial Court No. 13840*RM00





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	This is an appeal by  International Fidelity Insurance Company from a judgment forfeiting
a bail bond.  International raises two issues for appellate review.  First, it contests the validity of the
judgment nisi on which the final judgment of bond forfeiture is based.  Second, it contends that the
judgment is invalid because the court that issued the writ of scire facias on the bond forfeiture was
not the court in which the applicable criminal case was pending.  For reasons that follow, we
overrule these contentions and affirm the judgment of the trial court.
	We first consider the issue of the validity of the judgment nisi.  The final judgment of bond
forfeiture rendered by the 149th Judicial District Court reads in pertinent part as follows:
	[T]he Defendant-Principal failed to appear at the courtroom of the 239th District
Court before the Judge of the 239th District Court, acting on behalf of the 23rd
Judicial District, pursuant to Brazoria County local rule entitled: ORDER
EQUALIZING CASELOADS AND DIVIDING DOCKET, as ordered in that certain
order for pre-trial hearing and setting case for trial issued on May 12, 2000.  The
Defendant's Bail Bond was declared forfeited and a Judgment Nisi on Forfeiture of
Bond was entered against the Defendant by the Judge of the 239th District Court in
the 239th District Court acting on behalf of the 23rd Judicial District.  As required
by Tex. Code Crim. Proc. Ann. art[.] 22.10 the case was docketed upon the civil
docket, of the 149th District Court . . . . Plaintiff is entitled to final judgment.

(Emphasis added.)

	Proceedings for the forfeiture of bail formally commence with the entry of a judgment nisi,
by which the court acquires jurisdiction to adjudicate the matter of enforcing the bond obligation.
Burgemeister v. Anderson, 113 Tex. 495, 259 S.W.1078, 1078-79 (1924).  A judgment nisi is an
interlocutory, conditional judgment.  Jackson v. State, 422 S.W.2d 448 (Tex. Crim. App. 1968).  It
declares that a bond is forfeited unless the defendant shows good cause for his failure to appear in
the court in which his case was pending and where his presence was required. (1)
  See Tex. Code Crim.
Proc. Ann. art. 22.02 (Vernon 1989).  In a bail bond forfeiture case, the essential elements of the
state's cause of action are the bond and the judgment nisi.  Alvarez v. State, 861 S.W.2d 878, 880-81
(Tex. Crim. App. 1992); Deckard v. State, 605 S.W.2d 918, 921 (Tex. Crim. App. 1980); Tocher
v. State, 517 S.W.2d 299, 301 (Tex. Crim. App. 1975).  	
	International's argument challenging the validity of the judgment nisi on which the final
judgment of bond forfeiture is based may be summarized as follows.  The 23rd Judicial District
Court rendered the judgment nisi.  The court where the case was pending and before which the
defendant had been ordered to appear was the 239th Judicial District Court.  Consequently, the judge
of the 23rd Judicial District Court, which rendered the judgment nisi, lacked any evidence of the
facts concerning the defendant's failure to appear.  The judgment nisi rendered by that court is
therefore of no evidentiary value.  Because the State did not introduce evidence at the bond forfeiture
trial that the defendant failed to appear before the court in which his case was pending (the 239th
Judicial District Court) or evidence that the case was actually pending before the court which
executed the judgment nisi (the 23rd Judicial District Court), the State has failed to carry its burden
of proof on its cause of action. 
	This argument reflects a misunderstanding of the proceedings in this matter.  The record
shows that the district clerk of Brazoria County sent the defendant a letter informing him that he had
been indicted by a grand jury.  Enclosed with the letter were copies of the felony indictment and an
order from the 239th Judicial District Court setting the case for a pretrial hearing in that court on
August 3, 2000.  On that date, the 239th Judicial District Court, which is presided over by the
Honorable J. Ray Gayle, called this cause for trial.  The 239th Judicial District Court was acting on
behalf of the 23rd Judicial District Court because the 23rd Judicial District Court handles all felony
cases in Brazoria County pursuant to local rule.  This is why Judge Gayle, who presides over the
239th Judicial District Court, signed the judgment nisi which was styled the 23rd Judicial District
Court.  The judge at the final bond forfeiture trial acted pursuant to the local rule.  Contrary to
International's understanding, the court in which this cause was pending and before which the
defendant had been ordered to appear, and the court that rendered the judgment nisi were one and
the same.  That court was therefore in a position to note whether the defendant appeared as required. 
We find that the judgment nisi is valid.  
	The judgment nisi is prima facie proof that Article 22.02 of the Texas Code of Criminal
Procedure, which provides for the manner of taking the forfeiture of an appearance bond, has been
satisfied.  Tex. Code Crim. Proc. Ann. art. 22.02; Alvarez v. State, 861 S.W.2d at 887 (op. on
reh'g); Tocher v. State, 517 S.W.2d at 301.  International had the burden to affirmatively show
otherwise.  Tocher v. State, 517 S.W.2d at 301.  Because it has failed to do so, we overrule
International's first contention.
	We now consider  whether the court entering the scire facias (2) on the bail bond forfeiture must
be the court in which the criminal case was pending.  The pertinent statute reads:
	When a forfeiture has been declared upon a bond, the court or clerk shall docket the
case upon the scire facias or upon the civil docket, in the name of the State of Texas,
as plaintiff, and the principal and his sureties, if any, as defendants; and, except as
otherwise provided by this chapter, the proceedings had therein shall be governed by
the same rules governing other civil suits.

Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon Supp. 2002).  
	International relies on Gen. Bonding & Cas. Ins. Co. v. State, 73 Tex. Crim. 649, 165 S.W.
615, 619 (op. on reh'g), for the proposition that the scire facias on the bail bond forfeiture must
proceed from the court in which the criminal case was pending and the forfeiture declared.  In our
case, after the 239th Judicial District Court, acting on behalf of the 23rd Judicial District Court,
declared the bond forfeited (the judgment nisi), the case was transferred to the civil docket in
accordance with Article 22.10, citation was issued (the scire facias writ), and the trial for bond
forfeiture was held by the 149th Judicial District Court (the scire facias proceeding).  Because the
149th Judicial District Court was not the court in which the criminal case was pending and the
forfeiture declared, International argues it had no jurisdiction over the matter and that judgment is
void.  
	We disagree with International's reading of Article 22.10 and General Bonding.  General
Bonding requires only that the court forfeiting the bond have possession of the record and
jurisdiction over the cause.  Gen. Bonding & Cas. Ins. Co. v. State, 165 S.W. at 619. As General
Bonding and the cases cited therein make clear, the record referred to consists of the bond and the
judgment nisi.  Id. at 620; see, e.g., State v. Kinne, 39 N.H. 129, 137-38 (1859).  Both the bond and
the judgment nisi were entered into evidence in our case.  As far as jurisdiction is concerned, a
district court judge has the power to hear and determine a matter pending in any other district court
in the county, regardless of whether the case is transferred.  See Tex. Gov't Code Ann. § 74.094
(Vernon Supp. 2002).  Any resulting judgment, order, or action is valid and binding as if the case
were pending in the court of the judge who acts in the matter.  Id.  Thus, a district court has authority
to render a judgment nisi, issue a scire facias writ, or hear the scire facias bond forfeiture proceeding
even if it is not the court in which the defendant was required to appear and failed to do so.  See
George v. State, 589 S.W.2d 428, 430 (Tex. Crim. App. 1979); Hall v. State, 485 S.W.2d 563, 564
(Tex. Crim. App. 1972).  

	We hold that the court entering the scire facias writ or hearing the scire facias proceeding
need not be the court in which the criminal case was pending and the bond declared forfeited.  We
overrule International's contentions and affirm the judgment of the trial court.

 
							William J. Cornelius
							Chief Justice

Date Submitted:	February 27, 2002
Date Decided:		March 20, 2002

Publish 
1. The literal meaning of "judgment nisi" is "judgment unless."  It refers to the judgment that
will stand unless "the adversely affected party appears and shows cause why it should be withdrawn."
See Black's Law Dictionary 1068 (7th ed. 1999). 


2. "Scire facias" means a judicial writ, founded on some matter of record, such as a judgment
or recognizance, and requiring the person against whom it is brought to show cause why the party
bringing it should not have advantage of such record.  The name is used to designate both the writ
and the whole proceeding. See Black's Law Dictionary 1347 (7th ed. 1999).  Although it is
unclear whether International is referring to the scire facias writ or the scire facias proceeding in its
argument, the distinction does not affect the outcome of this case.
