                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00396-CR

CHRISTOPHER SPEARS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                      From the County Court at Law No. 2
                             Brazos County, Texas
                      Trial Court No. 07-05226-CRM-CCL2


                          MEMORANDUM OPINION


      Christopher Spears appeals the granting of a summary judgment in favor of the

state of Texas on a bond forfeiture proceeding. Spears contends that the trial court

erred in refusing to grant his request for an arrest warrant, in finding that the evidence

was insufficient to demonstrate cause for the issuance of a warrant, and in not finding

in favor of his affirmative defense pursuant to Texas Code of Criminal Procedure article

17.19(b). TEX. CODE CRIM. PROC. ANN. art. 17.19(b) (Vernon Supp. 2009). Because we

find that the trial court erred in granting the State’s motion for summary judgment, we

reverse the judgment of the trial court and remand for further proceedings.
        As the movant for summary judgment, the State had the burden of establishing

that there were no genuine issues of material fact as to any of the elements of the State's

cause of action, which the State proved by the bond and the judgment nisi. Alvarez v.

State, 861 S.W.2d 878, 887 (Tex. Crim. App. 1993) (opinion on reh'g). The burden then

shifted to Spears to raise a fact issue on the affirmative defense set forth in article

17.19(b). Id. at 889 n.5. An affirmative defense will prevent the granting of a summary

judgment only if each element of the affirmative defense is raised by competent

summary judgment evidence. Hill v. State, 955 S.W.2d 96, 101 (Tex. Crim. App. 1997).

Every reasonable inference from the evidence must be indulged in favor of the non-

movant, and any doubts must be resolved in the non-movant's favor. Alvarez, 861

S.W.2d at 887.

        Article 17.19(b) is an affirmative defense to liability on a forfeiture. In order to

defeat the State’s motion for summary judgment, Spears must show that (1) the court or

magistrate refused to issue a capias or warrant for the arrest of the principal; and (2)

after the refusal to issue the capias or warrant of arrest, the principal failed to appear.

TEX. CODE CRIM. PROC. ANN. art. 17.19(b) (Vernon Supp. 2009). In addition, Spears must

show that he filed an affidavit in strict compliance with article 17.19(a). See Hernden v.

State, 865 S.W.2d 521, 523 (Tex. App.—San Antonio 1993, no writ).

        Spears complains that the trial court denied his request to issue a warrant for the

principal after he filed his affidavit because it was mandatory that the trial court do so.

Spears also contends that his affidavit was sufficient to comply with article 17.19(a). A

trial court has no authority to refuse to issue a warrant for a principal after a surety has

Spears v. State                                                                       Page 2
properly presented an affidavit pursuant to article 17.19. See, e.g., McConathy v. State,

545 S.W.2d 166, 168 (Tex. Crim. App. 1977).

        The primary issue, then, is whether the affidavit filed by Spears complies with

article 17.19(a). Article 17.19(a) sets forth the requirements for an affidavit to be filed

when a surety desires to be released from his obligation, including the court and cause

number, the name of the defendant and the offense charged, the date of the bond, the

reason for surrender, and that the required notice has been given. TEX. CODE CRIM.

PROC. ANN. art. 17.19(a) (Vernon Supp. 2009). Spears did file an affidavit, and it is

undisputed that the trial court denied his request for the issuance of a warrant.

        The State contends that Spears’s affidavit was insufficient in that it did not state

that Spears had personal knowledge of the contents of the affidavit, did not state

whether the acts to maintain the bond were required of the principal, and that it did not

state sufficient cause for the trial court to issue the warrant. The State also contends that

the proper standard for determining “cause” is probable cause. The State does not

challenge the affidavit regarding the other requirements of article 17.19(a) and we do

not address them in this appeal.

        The affidavit filed by Spears stated that he is making the affidavit after being

sworn and under oath, and was notarized as such. An "affidavit" is defined as "a

statement in writing of a fact or facts signed by the party making it, sworn to before an

officer authorized to administer oaths, and officially certified to by the officer under his

seal of office." TEX. GOV'T CODE ANN. § 312.011 (Vernon 2005). The affidavit filed by

Spears meets this definition.

Spears v. State                                                                        Page 3
        In his affidavit, Spears set forth three reasons for his request to surrender the

principal: (1) Def[endant] has never checked in; (2) Def[endant] has not provided our

office with current info.; and (3) Def[endant] does not return phone calls or messages.

Spears also stated that he had information regarding the principal’s current address in

Oklahoma City. While the affidavit filed by Spears certainly could have been more

specific, it did meet the requirements of article 17.19(a). As such, once the affidavit was

presented to the trial court, the trial court did not have discretion to deny Spears’s

request for a warrant to be issued. See McConathy, 545 S.W.2d at 168 (A trial court has

no authority to refuse to issue a warrant for a principal after a surety has properly

presented an affidavit pursuant to article 17.19.); see also TEX. CODE CRIM. PROC. ANN.

art. 17.19(b) (Vernon Supp. 2009) (the trial judge "shall issue" an arrest warrant for the

principal if the judge determines there is cause to surrender the principal). If the

principal wants to later challenge the validity or content of the affidavit, they can

pursue a civil action against the bond company. McConathy, 545 S.W.2d at 168; Robbins

v. Roberts, 833 S.W.2d 619, 623-24 (Tex. App.—Amarillo 1992, no pet.).

        Further, there is no requirement that the cause set forth in article 17.19 rise to a

level of probable cause. We decline to add the requirement that the affidavit must set

forth probable cause to surrender the principal because we are required to strictly

construe the statutes governing bond forfeitures. See Hernden v. State, 865 S.W.2d 521,

523 (Tex. App.—San Antonio 1993, no writ). As such, we will not add language that the

legislature did not include. Reviewing the evidence under the appropriate standards,

we find that the allegations contained in the affidavit were sufficient to establish cause

Spears v. State                                                                       Page 4
to surrender the principal. We find that the trial court erred in granting the summary

judgment in favor of the State. We sustain issues one and two.

Remedy

        Spears requests that we render judgment in his favor. However, this is an appeal

of a summary judgment proceeding filed by the State. When we reverse a trial court's

judgment, it is our duty under Rule of Appellate Procedure 43.3 to render the judgment

the trial court should have rendered. TEX. R. APP. P. 43.3. However, Spears did not file

his own motion for summary judgment. Therefore, we cannot give him relief he did

not request by rendering judgment in his favor at this stage of the proceedings. The

order that the trial court should have rendered is to deny the motion for summary

judgment, not to grant judgment in his favor. Spears’s issue three is overruled.

Conclusion

        We find that the trial court erred in granting the State’s motion for summary

judgment of forfeiture against Spears. We reverse and remand this cause to the trial

court for further proceedings in accordance with this opinion.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed December 30, 2009
Do not publish
[CV06]


Spears v. State                                                                    Page 5
