           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

   STATE OF TENNESSEE v. AAA AARON'S ACTION AGENCY BAIL
                        BONDS, INC.

            Direct Appeal from the Criminal Courts for Davidson County
    No. 2478 En Banc: J. Randall Wyatt, Jr., Judge; Seth Norman, Judge; Cheryl
                       Blackburn, Judge; Steve R. Dozier, Judge



                    No. M1999-01915-CCA-R3-CD - Decided June 9, 2000


The appellant bail bond company appeals the en banc order of the Criminal Courts of Davidson
County which refused to reinstate its authority to write bail bonds. We conclude the appellant was
not given proper notice of grounds relied upon for the refusal to reinstate its authority to write
bonds, and the Criminal Courts of Davidson County erroneously refused to reinstate appellant's
authority to write bail bonds based upon its alleged failure to notify a defendant of an arraignment
date. Accordingly, the judgment refusing to reinstate appellant's ability to write bail bonds is
reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Courts Reversed.

RILEY, J. delivered the opinion of the court, in which WADE, P. J. and OGLE , J. joined.

Thomas L. Whiteside, Nashville, Tennessee, for the appellant, AAA Aaron's Action Agency Bail
Bonds, Inc.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Pamela S. Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION


        At issue in this appeal is whether the Criminal Courts of Davidson County properly refused
to reinstate the appellant’s authority to write bail bonds. We conclude the Criminal Courts did not
provide adequate notice of the grounds for its refusal to reinstate appellant’s authority. We further
conclude the Criminal Courts of Davidson County erroneously refused to reinstate appellant’s
authority based upon the appellant’s alleged failure to notify a defendant of an arraignment date. We
reverse the judgment of the Criminal Courts of Davidson County.

                                   PROCEDURAL HISTORY
      The procedural history of this appeal is unique. On May 2, 1997, an en banc panel of the
Davidson County Criminal Courts entered a one-sentence order stating the following:

                       As the result of the actions of the AAA Aaron’s Action
               Agency Bail Bonds, Inc. and their agent or representative, in Division
               III of the Criminal Court, on Wednesday, April 23, 1997, the
               company is hereby denied the right to further write bonds in the
               Criminal Courts of Davidson County, Tennessee.

The bonding company filed a written answer on May 14, 1997, denying any wrongdoing. Before
any other action was taken, the bonding company filed a notice of appeal in this court on May 30,
1997.

        On appeal this court concluded that the May 2nd order was a “constitutionally inadequate”
notice of any wrongdoing. State v. AAA Bail Bonds, 993 S.W.2d 81, 86 (Tenn. Crim. App. 1998).
However, this court further noted that the bonding company’s premature notice of appeal divested
the trial court of jurisdiction; therefore, the trial courts were without authority to hold a further
hearing pending appeal. Id. at 87. The matter was remanded to the Criminal Courts of Davidson
County

               with instructions to amend, with particularity, the grounds upon
               which it relies in suspending AAA’s authority to write bonds. As
               statutorily provided, if AAA files a written answer within twenty days
               of the notice denying such charges, the trial court shall call a hearing
               within a reasonable time for the purpose of taking testimony and
               evidence on any issues of fact made by the charges and answer.
               (Emphasis added).
Id.

       On February 9, 1999, the Criminal Courts of Davidson County entered an order notifying
the bonding company to appear on March 24, 1999, to show cause why its privilege to write bonds
should not be suspended. The order provided that the show cause was

               based upon the actions of the Triple AAA Bonding Company in
               Division III of the Criminal Court for Davidson County, Tennessee,
               on April 23, 1997, in the matter of State of Tennessee v. Kimberly
               Hayes, Docket #97-A-549;

               And the subsequent failure of the Triple AAA Bonding Company to
               file with these Courts the information set out in an Opinion from
               these Courts dated August 5, 1997.

       The August 1997 opinion referred to in the notice was issued by one of the Criminal Court
judges pending the original appeal. That opinion provided that if the bonding company is seeking

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reinstatement, it must file with the Criminal Courts a detailed plan for its operation, specifically
setting out its notification procedures and the name of its agent who will answer to the court
concerning forfeitures. In the original appeal this court declared that opinion/order “void” since it
was entered pending the appeal. AAA Bail Bonds, 993 S.W.2d at 87. Although the bonding
company did reply in detail to this opinion/order, the alleged failure of the bonding company to
comply with this “void” opinion/order could not serve as the basis for a refusal to reinstate. We
note, however, that at the reinstatement hearing the failure to comply with this opinion/order was
not mentioned as the basis for the refusal to reinstate.

       At the an en banc hearing on March 24, 1999, counsel for the bonding company contended
the show cause order still did not provide notice of any wrongdoing by the bonding company.
Counsel conceded he had received a copy of the transcript of the April 1997 hearing.

        The transcript of the April 1997 hearing revealed that defendant Kimberly Hayes did not
appear for her earlier arraignment after having been indicted by the grand jury. Defendant appeared
at the April 1997 hearing, and her counsel advised the court that she had not been notified of the
earlier date. A representative of the bonding company was present at that hearing and was
questioned by the trial judge. The representative indicated the bonding company had received late
notice of the arraignment date, but that his “boss” had left a message on the defendant’s answering
machine. The representative further stated that a computer notice had been sent to the defendant;
however, the representative noted that the address was incomplete. When the representative
indicated he thought it was actually the attorney’s responsibility to notify the defendant of the court
date, the trial judge indicated to the representative that it was the bonding company’s responsibility.
The forfeiture was then set aside, and the defendant was advised by the trial court to keep in contact
with the bondsman and attorney regarding future court dates. There was no indication by the trial
judge that the bonding company might be suspended for any wrongdoing.

        At the March 1999 show cause hearing, the discussion between the judges and the bonding
company’s counsel centered around the bonding company’s obligation to notify defendants of court
dates. One of the trial judges noted that “there is no other way to have a defendant notified [of an
arraignment date] except through the bondsman.” Counsel contended the April 1997 transcript
indicated that the bonding company had in fact notified the defendant and that, regardless, failure
of a bonding company to notify a defendant of an arraignment date would not be proper grounds for
suspension of its authority to write bonds. No testimony or evidence was offered at the hearing.

        After a recess, the en banc panel orally announced its ruling. The brief ruling was that the
hearing was set for the purpose of taking testimony or evidence; no testimony or evidence was
offered; and the prior order of suspension remained in effect.1 The minute entry simply indicated
that the motion to reinstate was denied. There were no factual findings.


       1
          One of the judges also noted the bonding company did not presently have an agent in the
state. Counsel had earlier told the court the bonding company would have properly qualified agents
if its authority to write bonds was reinstated.

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                                   PROPER NOTIFICATION

         In the prior appeal this court held that notifying the bonding company that it was suspended
“as a result of the actions of [the bonding company] and their agent or representative, in Division
III of the Criminal Courts on Wednesday, April 23, 1997,” was constitutionally insufficient notice
of any wrongdoing by the bonding company. AAA Bail Bonds, 993 S.W.2d at 86. The matter was
remanded “with instructions to amend, with particularity, the grounds upon which it relies in
suspending AAA’s authority to write bonds.” Id. at 87 (emphasis added). The only difference in
the new notice is that it makes reference to the specific case on April 23, 1997, and includes a copy
of the transcript. The new notice does not comply with the requirement to allege grounds “with
particularity.” No grounds are alleged, and the transcript of the April 1997 hearing is far from
conclusive as to any wrongdoing. The representative testified at that hearing that the bonding
company had made efforts to contact the defendant. Counsel for the defendant stated that defendant
had not been notified. The trial judge told the bonding company representative it was their
responsibility to notify defendants to be in court. Thus, we conclude there was not proper notice of
alleged wrongdoing.

                        GROUNDS FOR CONTINUED SUSPENSION

        The oral ruling of the en banc panel was simply that the order of suspension would remain
in effect because the bonding company did not present any testimony or evidence. In light of the
lack of proper notice and the transcript of the April 1997 hearing, the failure of the bonding company
to present further evidence was unnecessary.

        In the context of this case, the record is inconclusive as to whether the bonding company
notified the defendant of her arraignment date. Regardless, according to the notice, the sole legal
basis for the suspension of and the refusal to reinstate the bonding company was its failure to notify
this one defendant of her arraignment date. Although there was an expressed concern by the judges
over other matters relating to the bonding company, the inadequate notice only related to the one
April 1997 instance. Our examination of that April 1997 transcript does not reveal actions by the
bonding company that would justify its suspension.

                       PRETERMITTED ISSUE - DUTY TO NOTIFY

       Although not in the show cause order, in the oral ruling of the en banc panel, in the minute
entry denying reinstatement, or in any findings, it appears the true issue in controversy is whether
the bonding company has a legal obligation to the Criminal Courts to notify a defendant of the
arraignment date after a defendant is indicted, and whether a failure to do so is a proper ground for
suspension.

        The bonding company insists the Criminal Courts of Davidson County do not have the
authority to suspend a bonding company based upon the failure of the bonding company to notify
a defendant of a court date. Specifically, the bonding company contends it does not have the
ultimate responsibility of notifying a defendant of an arraignment date following a grand jury

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indictment. Although it is economically beneficial for a bondsman to apprize defendants of court
dates, the bonding company contends there is no provision under the bail statutes which would
authorize a sanction based upon the failure of a bondsman to notify a defendant of an arraignment
or any other court date. See Tenn. Code Ann. § 40-11-101 et seq. Although the state has been
unable to cite any statutory provision authorizing a suspension for such a failure, it still insists the
trial courts have such authority.

        However, we do not reach this issue. The bail contract in the underlying case giving rise to
appellant’s suspension is not in the record. It would further appear that arraignment notification
procedures vary throughout the state, especially since some grand juries meet almost continuously
in some metropolitan areas and seldom in some rural areas. The record does not conclusively
establish whether a defendant is personally given a court date at the time the defendant is bound over
to the action of the grand jury in Davidson County, although the judges appeared to indicate at the
hearing that no future date is known or given to a defendant at that time. The record is also
inconclusive as to whether the clerk’s office notifies the bonding company and/or the defendant of
the arraignment date, and how the bonding company ascertains that an indictment has been returned
and an arraignment date set for the defendant.

       In summary, we need not address in this appeal the issue of whether a bonding company can
be sanctioned for failing to notify a defendant of a court date. We choose to leave that issue for
another day, particularly in light of the sparse record before this court.

                                           CONCLUSION

        Since the appellant bonding company received inadequate notice of any wrongdoing and the
April 1997 transcript does not justify a finding of wrongdoing, the judgment of the Criminal Courts
of Davidson County is reversed. The statements at the hearing indicated there is currently no agent
for the bonding company; therefore, any proposed agent of the bonding company will have to be
approved by the proper court.




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