                                                                             PD-1275-15
                      PD-1275-15                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 9/25/2015 2:26:33 PM
                                                            Accepted 9/30/2015 11:43:07 AM
                     NO.________________________                             ABEL ACOSTA
                                                                                     CLERK

                            IN THE
            TEXAS COURT OF CRIMINAL APPEALS
       ________________________________________________

                 THE STATE OF TEXAS, Petitioner

                                 v.

                  TOM BENSON, Respondent
       ________________________________________________

                        No. 03-15-00121-CR
                  In the Court of Appeals for the
                 Third District of Texas at Austin
                       No. C-1-CV-14-002294
                    County Court at Law No. 7
                       Travis County, Texas
       ________________________________________________

          PETITION FOR DISCRETIONARY REVIEW
       ________________________________________________

                               Tim Labadie
                               Assistant Travis County Attorney
                               State Bar No. 11784853
                               P.O. Box 1748
                               Austin, Texas 78767
September 30, 2015             (512) 854-5864
                               (512) 854-9316 (fax)
                               tim.labadie@traviscountytx.gov

                               Attorney for the State of Texas, Petitioner

                ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ..........................................................................................i

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ....................................... iii

INDEX OF AUTHORITIES .................................................................................. iv

STATEMENT REGARDING ORAL ARGUMENT............................................ 1

STATEMENT OF THE CASE ................................................................................2

STATEMENT OF PROCEDURAL HISTORY ..................................................... 3

QUESTION PRESENTED FOR REVIEW ............................................................ 3

REASONS FOR GRANTING REVIEW ............................................................... 4

ARGUMENT ............................................................................................................4

    1. THE ISSUE: IS THE PRINCIPAL’S RETURN TO THE COUNTY OF
       PROSECUTION AN ELEMENT OF THE INCARCERATION
       EXONERATION? ...............................................................................................4

    2. THE PURPOSE OF ARTICLES 22.13(A)(5) AND 22.13(B) IS TO GIVE
       THE SURETY FINANCIAL INCENTIVE TO RETURN THE PRINCIPAL TO
       THE COUNTY OF PROSECUTION ..................................................................... 5

    3. THE COURT CAN CONSIDER THE LEGISLATIVE HISTORY OF ARTICLE
       22.13 ..............................................................................................................11

    4. GENERALLY, A REDUCTION OF THE SURETY’S LIABILITY REQUIRES
       THE PRINCIPAL’S RETURN.............................................................................14

PRAYER FOR RELIEF ..........................................................................................18

CERTIFICATE OF COMPLIANCE ....................................................................19



                                                             i
CERTIFICATE OF SERVICE ...............................................................................19

APPENDIX ......................................................................................................... post




                                                          ii
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL


TRIAL JUDGE:

Honorable Todd Wong –County Court at Law No. 1, Travis County, Texas

PARTIES TO THE JUDGMENT:

The State of Texas (Plaintiff)
Brian Roy Whipple (Principal-Defendant)
Tom Benson (Surety-Defendant)

TRIAL AND APPELLATE COUNSEL:

Tim Labadie
Assistant Travis County Attorney
P. O. Box 1748
Austin, Texas 78767
Counsel for the State of Texas

Tom Benson
900 Jackson St., Suite 750
Dallas, Texas 75202
Pro se

Brian Roy Whipple did not appear in the trial court nor in the court of
appeals.




                                   iii
                              INDEX OF AUTHORITIES
                                                                                            Page

CASES

Armadillo Bail Bonds. v State,
    802 S.W.2d 237 (Tex. Crim. App. 1990) ..................................................... 9

Benson v. State,
     No. 03-15-00121-CR, 2015 Tex. App. LEXIS 9238
     (Tex. App.Austin, Aug. 31. 2015) ...............................................9, 11, 15

Boykin v. State,
      818 S.W.2d 782 (Tex. Crim. App. 1991) ...........................................5, 6, 11

Chase v. State,
      448 S.W.3d 6 (Tex. Crim. App. 2014) .......................................................12

Ex parte Reis,
      117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) ................................................. 6

Ex parte Vasquez,
      558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................................... 6

Gramercy Insurance Co. v State,
     834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) .....................7, 17

Grimes County Bail Board v. Ellen,
     267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) ... 7

Hardy v. State,
     281 S.W.3d 414 (Tex. Crim. App. 2009) ..................................................... 6

Lyles v State,
      850 S.W.2d 497 (Tex. Crim. App. 1993) ..................................................... 9




                                                iv
Makeig v. State,
     802 S.W.2d 59 (Tex. Crim. App. 1990) ....................................................... 8

McKenna v State,
    247 S.W.3d 716 (Tex. Crim. App. 2008) .......................................6, 7, 8, 17

Safety National Casualty Corp. v State,
      273 S.W.3d 157 (Tex. Crim. App. 2008) ................ 5, 7, 8, 9, 10, 11, 12, 15

State v Matyastik,
       811 S.W.2d 102 (Tex. Crim. App. 1991) ..................................................... 9


STATUTES

TEX. CODE CRIM. PROC. art. 17.01 ........................................................................... 6

TEX. CODE CRIM. PROC. art. 17.02 ........................................................................... 6

TEX. CODE CRIM. PROC. art. 17.08 ........................................................................... 6

TEX. CODE CRIM. PROC. art. 22.13 .......................................................7, 8, 9, 11, 14

TEX. CODE CRIM. PROC. art. 22.13(a)(1)............................................................8, 14

TEX. CODE CRIM. PROC. art. 22.13(a)(2)............................................................8, 14

TEX. CODE CRIM. PROC. art. 22.13(a)(3)................................................8, 14, 15, 16

TEX. CODE CRIM. PROC. art. 22.13(a)(4)............................................................8, 14

TEX. CODE CRIM. PROC. art. 22.13(a)(5)......... 2, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17

TEX. CODE CRIM. PROC. art. 22.13(a)(5)(A) ..................................3, 4, 5, 12, 13, 14

TEX. CODE CRIM. PROC. art. 22.13(b) ......... 2, 3, 5,6, 7, 8, 9, 10, 11, 12, 13, 14, 15



                                                      v
TEX. CODE CRIM. PROC. art. 22.16 ...........................................................8, 9, 15, 16

TEX. CODE CRIM. PROC. art. 22.16(a) ..............................................................15, 16

TEX. CODE CRIM. PROC. art. 22.16(b) ....................................................................16

TEX. CODE CRIM. PROC. art. 22.17 ...............................................................8, 16, 17

TEX. CODE CRIM. PROC. art. 22.17(a) ....................................................................17

TEX. GOV’T CODE § 311.021(2) ...............................................................................12

TEX. GOV’T CODE § 311.023 .....................................................................................6

OTHER

SENATE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS,
Tex. S.B. 1336, 78th Leg., R.S. (2003) ...................................................................10




                                                      vi
                     NO.________________________

                               IN THE
               TEXAS COURT OF CRIMINAL APPEALS
          ________________________________________________

                    THE STATE OF TEXAS, Petitioner

                                    v.

                     TOM BENSON, Respondent
          ________________________________________________

                           No. 03-15-00121-CR
                     In the Court of Appeals for the
                    Third District of Texas at Austin
                          No. C-1-CV-14-002294
                       County Court at Law No. 7
                          Travis County, Texas
          ________________________________________________

             PETITION FOR DISCRETIONARY REVIEW
          ________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

     The State of Texas petitions the Court to review and reverse the

judgment of the Austin Court of Appeals, which reversed the trial court’s

judgment and remanded the case to the trial court.

           STATEMENT REGARDING ORAL ARGUMENT

     Oral argument would be helpful to resolve whether a principal-

defendant must be returned to the county of prosecution before a surety’s


                                    -1-
liability for the forfeiture of the appearance bond is limited by articles

22.13(a)(5) and 22.13(b). This is a question of first impression in this Court

in an area of law rarely addressed by the Court. At oral argument, the

Court would be able to draw upon the experience and knowledge of both

the State’s attorney and the bondsman in order to better understand the

inner workings of bail bonds, the law applicable to bail bonds, and the

impact the Court’s decision will have on this integral part of our criminal

justice system.

                       STATEMENT OF THE CASE

      On August 29, 2013, Brian Roy Whipple, as Principal, and Tom

Benson, as Surety, executed an appearance bond payable to the State of

Texas in the amount of $5,000.00.1 This bond was conditioned on Mr.

Whipple’s personal appearance on a misdemeanor charge pending in

Travis County. 2 On February 14, 2014, Brian Whipple failed to appear in

court and the bail bond was forfeited.3

      In answering the bond forfeiture suit, Tom Benson did not deny the

making and the forfeiture of the bond. Instead, he asserted that Mr.


1     CR 4,5.
2     CR 4,5.
3     CR 4.


                                     -2-
Whipple was incarcerated in Las Vegas, Nevada within 180 days of his

failure to appear in Travis County, claiming that this provided him a

defense to liability under article 22.13(a)(5)(A) of the Texas Code of

Criminal Procedure. 4 Mr. Benson did not allege or present evidence that

Mr. Whipple ever returned to Travis County.

     On January 21, 2015, the trial court granted Plaintiff’s Motion for

Summary Judgment and rendered judgment against Brian Whipple and

Tom Benson for the full amount of the bond ($5,000.00) plus court costs.5

                 STATEMENT OF PROCEDURAL HISTORY

     In a decision rendered on August 31, 2015, a panel of the Third Court

of Appeals reversed the judgment of the trial court and remanded the case.

The State did not file a Motion for Rehearing in the Third Court of Appeals.

                  QUESTION PRESENTED FOR REVIEW

     Whether      the   principal-defendant’s   return   to   the   county   of

prosecution is an element of a surety’s exoneration defense to bond

forfeiture liability under articles 22.13(a)(5)(A) and 22.13(b) of the Texas

Code of Criminal Procedure?



4    CR 14.
5    CR 24-25.


                                      -3-
                  REASONS FOR GRANTING REVIEW

      While the issue in this case had never been directly addressed by any

Texas court before the decision of the court of appeals, its resolution was

suggested by this Court in a manner that directly conflicts with the

decision of the court of appeals. This is an important issue pertaining to the

law of bond forfeitures that has not been, but should be, settled by this

Court.

                               ARGUMENT

1.    THE ISSUE: IS THE PRINCIPAL’S RETURN TO THE COUNTY OF
      PROSECUTION AN ELEMENT OF THE INCARCERATION EXONERATION?

      Tom Benson has never denied that he and Brian Whipple made a

$5,000.00 appearance bond or that this bond forfeited because Mr. Whipple

failed to appear in court in Travis County or that Mr. Whipple has never

returned to the Travis County criminal justice system. Instead, Mr. Benson

invoked the incarceration exoneration found in articles 22.13(a)(5)(A) and

22.13(b) of the Texas Code of Criminal Procedure, which provide:

      (a) The following causes, and no other, will exonerate the defendant
      and his sureties, if any, from liability upon the forfeiture taken:
                                     .      .    .
            5. The incarceration of the principal in any jurisdiction in the
               United States:



                                     -4-
                   (A) in the case of a misdemeanor, at the time of or not
                  later than the 180th day after the date of the principal's
                  failure to appear in court[.]

      (b) A surety exonerated under Subdivision 5, Subsection (a), remains
      obligated to pay costs of court, any reasonable and necessary costs
      incurred by a county to secure the return of the principal, and interest
      accrued on the bond amount from the date of the judgment nisi to the
      date of the principal's incarceration.

Tex. Code Crim. Proc. articles 22.13(a)(5)(A) & 22.13(b).

      The State contends, based in part on this Court’s decision in Safety

National Casualty Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App. 2008),

that article 22.13(a)(5)’s exoneration is contingent on the principal’s return

to the county where the forfeiture occurred because article 22.13(b) imposes

liability on the surety for the costs incurred by that county in returning the

principal. Mr. Benson argues, and the Austin court of appeals holds, that a

surety is exonerated upon the principal’s incarceration without regard to

his or her return to the county of prosecution.

2.    THE PURPOSE OF ARTICLES 22.13(A)(5) AND 22.13(B) IS TO GIVE THE
      SURETY FINANCIAL INCENTIVE TO RETURN THE PRINCIPAL TO THE
      COUNTY OF PROSECUTION

      To resolve this issue, the Court must engage in statutory construction

of articles 22.13(a)(5) and 22.13(b) in order to determine their fair and

objective meaning at the time of their enactment. Boykin v. State, 818 S.W.2d


                                     -5-
782, 785 (Tex. Crim. App. 1991). Initially, the Court must consider the

literal text read in light of the rules of statutory construction, such as those

found in Chapter 311 of the Government Code. Hardy v. State, 281 S.W.3d

414, 422 (Tex. Crim. App. 2009). If the statute is ambiguous or application

of its plain language would lead to absurd consequences, the Court should

not literally construe the statute and can consider other sources, such as

legislative history, to determine the meaning of the statute. Boykin v. State,

818 S.W.2d at 785-86. See also, Tex. Gov’t Code §311.023.

       In determining the meaning of articles 22.13(a)(5) and 22.13(b), the

Court must bear in mind that the purpose of bail is to secure the principal’s

appearance in court so that the criminal charges against him or her can be

resolved. McKenna v State, 247 S.W.3d 716, 719 (Tex. Crim. App. 2008); Ex

parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Reis, 117

Tex. Crim. 123, 127, 33 S.W.2d 435, 437 (1930).6




6      See also, Tex. Code Crim. Proc. art. 17.01 (bail is defined as “the security given by
the accused that he will appear and answer before the proper court the accusation
brought against him.”); id. art. 17.02 (“A ‘bail bond’ is a written undertaking [by the
principal and surety] for the appearance of the principal . . . to answer a criminal
accusation.”); id. art. 17.08 (a bail bond must contain a promise by the principal and
surety promise that the principal will appear before the proper court to answer the
accusation against him).


                                            -6-
      In light of this purpose, the law mandates that the principal’s

nonappearance normally will result in the total forfeiture of the bond

amount. McKenna v State, 247 S.W.3d at 719. Even after forfeiture, the

State’s primary concern is the principal’s appearance, not collecting the

bond amount. See, Gramercy Insurance Co. v. State, 834 S.W.2d 379, 381-82

(Tex. App.−San Antonio 1992, no pet) (a bail bond is not intended to

function as a revenue device for the government). Indeed, the presence of a

bail bond protects the public interest in having the principal appear in

court by encouraging the surety’s participation in the return of the

principal. Grimes County Bail Bond Board v. Ellen, 267 S.W.3d 310, 317 (Tex.

App.−Houston [14th Dist.] 2008, pet. denied).

      The exoneration based on the post-forfeiture incarceration of the

principal found in articles 22.13(a)(5) and 22.13(b) was added to Chapter 22

of the Code of Criminal Procedure in 2003. Safety National, 273 S.W.3d at

160. Prior to that time, article 22.13 recognized just four causes for

exoneration; all of which resulted in a complete exoneration, and none of

which focused on the principal’s post-forfeiture conduct. 7 While, prior to


7      These causes are invalid and non-binding bond, death of the principal before the
forfeiture, sickness of the principal or some other uncontrollable circumstance, and


                                          -7-
2003, Chapter 22 contained other mechanisms8 allowing a trial court, in its

discretion, to reduce the surety’s liability when the principal was returned

to the county of prosecution, these were contingent on the surety showing

good cause for the principal’s failure to appear and that the surety

participated in the return of the principal to the county of prosecution.

McKenna v State, 247 S.W.3d at 719; Makeig v. State, 802 S.W.2d 59, 62-63

(Tex. Crim. App. 1990).

       By enacting articles 22.13(a)(5) and 22.13(b), the Legislature created a

less than total exoneration, not based on good cause for the failure to

appear, but on the principal’s post-forfeiture incarceration. Shortly after

this cause for exoneration was added to article 22, the State argued to this

Court that article 22.13(a)(5) violates the separation of powers provision in

the Texas Constitution. 9 Safety National Casualty Corp. v. State, 273 S.W.3d


failure to present an indictment or information at the first term of court after bail made.
Tex. Code Crim. Pro. art. 22.13(a)(1)-(4).
8       These mechanisms are remittitur under article 22.16 and the special bill of review
under article 22.17. Article 22.16 was also amended in 2003, but article 22.17 remains the
same.
9       The State argued that article 22.13(a)(5) was unconstitutional because it
effectively prohibits the entry of a judgment for 180 days (or 270 days for a felony). To
fully understand and appreciate the issue facing the Court, one must know a bit of the
history of articles 22.13 and 22.16. Prior to June 2003, article 22.13 listed four situations,
not including incarceration, in which the principal and the surety would be completely
exonerated from liability for a bond forfeiture. Article 22.16, on the other hand,
provided five situations, including the principal’s incarceration, where the surety’s


                                             -8-
157 (Tex. Crim. App. 2008). Envisioning the unjust consequences of the

construction given to article 22.13(a)(5) by the Austin court of appeals, the

State complained to this Court that the surety would be exonerated even if

the principal were arrested elsewhere on other charges but not returned to

the county of prosecution. Safety National, 273 S.W.3d at 163. The Court,

calming the State’s fears, found this construction of article 22.13(a)(5)

“simply incorrect” because article 22.13(b) imposes liability on the surety to

pay the costs incurred by a county to secure the principal’s return. Id. Thus,

this Court limited the incarceration exoneration to situations where the

principal’s return to the county of prosecution is certain.10 Id.



liability would be limited to court costs, return costs, and interest on the bond. Article
22.16 also placed time constraints on a court entering judgment in the bond forfeiture
suit (9 months for a misdemeanor, 18 months for a felony). In Armadillo Bail Bonds v.
State 802 S.W.2d 237 (Tex. Crim. App. 1990), State v. Matyastik, 811 S.W.2d 102 (Tex.
Crim. App. 1991), and Lyles v. State, 850 S.W.2d 497 (Tex. Crim. App. 1993), the Court
held that these time constraints violated the separation of powers provision of the Texas
Constitution. Even so, the Legislature did not attempt to fix the problem until 2003, at
which time it removed the time constraints from article 22.16 and moved to article 22.13
the limitation on liability because of the principal’s incarceration. In this context, the
State in Safety National argued that the 180/270 day provisions of article 22.13 were
similar to the 9/18 month provisions that had been ruled unconstitutional. The Court
disagreed finding no requirement in article 22.13 that the court wait any amount of time
before taking a judgment. Safety National Cas. Corp. v. State, 273 S.W.3d at 164.
10      Contrary to the Austin court’s assertion, a principal’s return to Texas is not
certain simply because he is incarcerated in another state. Benson v. State, 2015 Tex.
App. LEXIS 9238 at *10. Mr. Whipple is a prime example. While Mr. Benson presented
some evidence that Mr. Whipple was incarcerated in Nevada, there is no evidence that
either Mr. Benson or the State knew of this incarceration while Mr. Whipple remained


                                           -9-
      Articles 22.13(a)(5) and 22.13(b) were added to Chapter 22 in 2003

because:

      . . . the state is more interested in having the defendant appear
      than in receiving forfeited bond money. Setting time limits on
      when bonds would be forfeited would result in more
      defendants ultimately appearing in court because bondsmen
      would have a financial incentive to produce the principal many
      weeks after he or she originally failed to appear in court . . .
      [and] would give bondsmen consistency for principals who
      were incarcerated, while allowing a judge to adjust the time
      period as needed in a particular case. SENATE COMM. ON
      CRIMINAL JURISPRUDENCE, BILL ANALYSIS, Tex. S.B.
      1336, 78th Leg., R.S. (2003).

Quoted in Safety National Casualty Corp. v. State, 273 S.W.3d 157, 162-63

(Tex. Crim. App. 2008) (emphasis added).

      Thus, articles 22.13(a)(5) and 22.13(b) serve the bond’s purpose of

securing the principal’s appearance in court even after the principal’s

nonappearance by giving the surety a financial incentive (i.e., reduced

liability) to return the principal to the county of prosecution. The Austin

court of appeals, however, abrogates the bond’s purpose by rewarding Mr.

Benson with very limited liability for breaking his promise to insure Mr.

Whipple’s appearance in Travis County simply because Mr. Whipple was



in custody. Consequently, Mr. Whipple has never returned to the custody of Travis
County or any other county in Texas.


                                      -10-
incarcerated in Nevada, even though Mr. Whipple was not returned to

Travis County. Moreover, there is no evidence that Mr. Benson was

instrumental in Mr. Whipple’s arrest in Nevada, that Mr. Benson informed

Travis County of Mr. Whipple’s arrest while he still was in custody so that

Mr. Whipple might be extradited to Texas, or that Mr. Benson or the State

even knew of the incarceration at the time it occurred.

     Surely, this is not what the Legislature intended when it added

articles 22.13(a)(5) and 22.13(b) to the body of law governing bail bonds.

3.   THE COURT CAN CONSIDER THE LEGISLATIVE HISTORY OF ARTICLE
     22.13

     The Austin court of appeals refused to consider the bill analysis cited

above and relied on by this Court in Safety National because it concluded,

without any analysis and in a footnote, that article 22.13 is not ambiguous.

Benson v. State, No. 03-15-00121-CR, 2015 Tex. App. LEXIS 9238, at *10 n.3

(Tex. App.Austin, Aug. 31. 2015). This Court has recognized two

situations where it will consider legislative history in construing a statute:

when that statute is ambiguous or when application of the plain language

would lead to an absurd result. Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).



                                     -11-
     A statute is ambiguous when it is "reasonably susceptible to more

than one understanding." Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App.

2014). Reading article 22.13(a)(5)(A) alone, one could conclude that the

principal’s return is not necessary to trigger exoneration. However, it is

reasonable to conclude that the principal must be returned to the county of

prosecution before the exoneration is triggered when articles 22.13(a)(5)(A)

and 22.13(b) are read together, as the rules of statutory construction

demand. Tex. Gov’t Code §311.021(2). Indeed, as mentioned above, this

Court suggests this very construction in Safety National Casualty Corp. v.

State, 273 S.W.3d 157 (Tex. Crim. App. 2008). Thus, articles 22.13(a)(5)(A)

and 22.13(b) are ambiguous.

     Additionally, the construction given to articles 22.13(a)(5)(A) and

22.13(b) by the court of appeals leads to absurd results. First, it allows the

surety to take advantage of article 22.13(b)’s greatly reduced liability

without requiring the return of the principal to the county of prosecution,

thereby defeating the purpose of the bail bond.

     Second, if the court of appeals is correct, the resolution of the bond

forfeiture suit and the underlying criminal case will be delayed, and

perhaps never resolved, since the surety no longer has an incentive to seek

                                     -12-
the return of the principal. Instead, the Austin court has given the surety an

incentive to not have the principal returned to the county of prosecution so

as to avoid liability for the return costs.

      The decision of the court of appeals forces the State to choose, in

those cases where the principal is not returned to the county of

prosecution, between a timely resolution of the bond forfeiture suit,

without collecting return costs, or leaving the bond forfeiture suit pending

until the principal returns, which may never happen, in order to collect the

return costs. Under the first choice, the State runs the risk of bearing the

costs of return, when the Legislature intended those costs to be borne by

the surety, if the principal returns after the resolution of the bond forfeiture

suit. Under the second choice, the State runs the risk that the suit will never

be resolved because the principal never returns or that the surety will no

longer be in business or solvent upon the principal’s return.

      Thus, the Court can and should look to the legislative history to

determine the fair and objective meaning of these provisions. For, in doing

so, the Court will see that the Legislature did not intend articles

22.13(a)(5)(A) and 22.13(b) to apply to a fortuitous incarceration in another




                                       -13-
state on another charge that does not result in the principal’s return to the

county of prosecution.

4.    GENERALLY, A REDUCTION IN THE SURETY’S LIABILITY REQUIRES THE
      PRINCIPAL’S RETURN

      The incarceration exoneration under articles 22.13(a)(5) and (b) is but

one of several mechanisms available to the surety to minimize its bond

forfeiture liability, most of which require the return of the principal to the

county of prosecution. 11 For example, a surety is completely exonerated

from liability if the principal was prevented from appearing because he

was sick or because of an uncontrollable circumstance, provided that the

principal had no fault in causing the situation that prevented his

appearance. Tex. Code Crim. Proc. art. 22.13(a)(3).

      Before the surety can take advantage of this exoneration, the

principal must “appear before final judgment on the bond to answer the

accusation against him, or show sufficient cause for not so appearing.” Tex.

Code Crim. Proc. art. 22.13(a)(3). Because similar language is not found in

article 22.13(a)(5)(A), the court of appeals held that the principal’s return is

11      There are three causes for exoneration under article 22.13 that do not require the
return of the principal: when the bond is invalid and not binding (article 22.13(a)(1)),
when the principal dies before the forfeiture occurs (article 22.13(a)(2)), and when an
indictment or information is not presented timely and the prosecution is not continued
(article 22.13(a)(4)).


                                           -14-
not required. Benson v. State, 2015 Tex. App. LEXIS 9238, at *6-*7. However,

in Safety National, the Court found that the language in article 22.13(b)

imposing liability on the surety for return costs limits article 22.13(a)(5)’s

application to situations where the principal’s return is certain. Safety

National, 273 S.W.3d at 163. The point of Safety National missed by the court

of appeals is that by retaining the surety’s liability for return costs when

article 22.13(a)(5) applies, the Legislature intended that the principal be

returned to the county of prosecution. Moreover, there is no need for

language similar to article 22.13(a)(3) because application of the

incarceration exoneration is not dependent on good cause for the

principal’s failure to appear. Article 22.13(a)(5) is not concerned about why

the principal failed to appear. It is only concerned about the principal’s

return to the criminal justice system.

      Article 22.16 also limits the surety’s liability for a bond forfeiture. If,

before a final judgment is rendered in the bond forfeiture suit, the principal

is arrested and released on a new bond or the criminal case in which the

forfeited bond was made is dismissed, the surety’s liability is reduced to

court costs, interest on the bond akin to prejudgment interest, and, just like

article 22.13(b), “any reasonable and necessary costs to the county for the

                                      -15-
return of the principal.” Tex. Code Crim. Proc. art. 22.16(a). This same

reduction of liability can also be given to the surety by the court “for other

good cause shown.” Tex. Code Crim. Proc. art. 22.16(b).12 By retaining the

surety’s liability for return costs, both provisions require the return of the

principal even though these provisions do not use the same language in

article 22.13(a)(3) that the court of appeals found was required in article

22.13(a)(5) before requiring the principal’s return.

      A surety has been given another avenue for reducing its liability if

the principal is returned to the county of prosecution. However, unlike the

ones discussed above, this one can be utilized any time within two years

after a final judgment is rendered. This mechanism is known as the special

bill of review and is governed by article 22.17 of the Code of Criminal

Procedure.

      A surety can file a special bill of review to request, “on equitable

grounds, that the final judgment be reformed and that all or part of the

bond amount be remitted to the surety, after deducting the costs of court,



12     The main difference between the two subsections of article 22.16, other than the
basis for reducing the surety’s liability, is that subsection (a) provides a mandatory
reduction (“the court shall”), while subsection (b)’s reduction is discretionary (“the
court in its discretion may”).


                                         -16-
any reasonable costs to the county for the return of the principal, and the

interest accrued on the bond amount form the date of forfeiture.” Tex.

Code Crim. Proc. art. 22.17(a) (emphasis added). Because this statute does

not specify the equitable grounds that would justify a reformation of the

judgment, the courts have fashioned several factors for trial courts to

consider. One of these factors is whether the surety participated in the re-

arrest of the principal. Another factor is the cost and inconvenience to the

State in regaining custody of the principal. McKenna v. State, 247 S.W.3d

716, 719 (Tex. Crim. App. 2008); Gramercy Insurance Co. v. State, 834 S.W.2d

379, 382 (Tex. App.−San Antonio 1992, no pet.)

      Thus, the question under article 22.17 is not if the principal returned

to the county of prosecution, but whether the surety helped get the

principal arrested and how much it cost the State to return the principal to

the county of prosecution. Since the surety remains liable for return costs

under both article 22.17 and article 22.13(a)(5), the principal’s return to the

county of prosecution is an element of the incarceration exoneration just as

it is an element of an equitable special bill of review.

      Thus, in order to avoid summary judgment, Mr. Benson was required

to raise a fact issue on Mr. Whipple’s incarceration within 180 days of his

                                      -17-
failure to appear and Mr. Whipple’s return to Travis County. He failed to

meet this burden because he did not present any evidence that Mr.

Whipple was ever returned to Travis County. Thus, summary judgment

was proper.

                           PRAYER FOR RELIEF

      Accordingly, the State of Texas respectfully requests that this Court

grant this petition, reverse the decision of the Austin Court of Appeals, and

affirm the judgment of the trial court.

                              Respectfully submitted,

                              DAVID A. ESCAMILLA
                              TRAVIS COUNTY ATTORNEY

                              By:   /s/ Tim Labadie
                                    Assistant Travis County Attorney
                                    State Bar No. 11784853
                                    P.O. Box 1748
                                    Austin, Texas 78767
                                    (512) 854-5864
                                    (512) 854-9316 (fax)
                                    tim.labadie@traviscountytx.gov

                              Attorneys for the State of Texas, Petitioner




                                     -18-
                    CERTIFICATE OF COMPLIANCE

       By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby
certify that the foregoing Petition for Discretionary Review contains 3,412
words according to the word count of the computer program used to
prepare this document and is compliant as to form pursuant to Tex. R.
App. P. 9.4.
                                    /s/ Tim Labadie


                       CERTIFICATE OF SERVICE

     I hereby certify that on September 25, 2015, and in accordance with
Texas Rule of Appellate Procedure 9.5, a true and correct copy of the
foregoing was emailed to Mr. Tom Benson at tomrbenson@gmail.com.

                                   /s/ Tim Labadie




                                    -19-
                              APPENDIX



A.   Benson v. State,
          No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)


B.   Safety National Casualty Corp. v State,
           273 S.W.3d 157 (Tex. Crim. App. 2008)
          Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)




             Tom Benson, Appellant v. The State of Texas, Appellee


                                NO. 03-15-00121-CR

           COURT OF APPEALS OF TEXAS, THIRD DISTRICT,
                            AUSTIN

                            2015 Tex. App. LEXIS 9238

                               August 31, 2015, Filed

NOTICE: PUBLISH.                                 This is an appeal from a final
                                              judgment in a bond-forfeiture suit. Roy
PRIOR HISTORY:       [*1] FROM                Whipple, the principal, was charged
THE COUNTY COURT AT LAW NO.                   with a misdemeanor offense in Travis
7 OF TRAVIS COUNTY. NO. C-1-CV-               County. Appellant Tom Benson, the
14-002294, HONORABLE TODD T.                  surety, filed a bond conditioned on
WONG, JUDGE PRESIDING.                        Whipple's      subsequent    appearance.
                                              Whipple later failed to appear in court as
DISPOSITION:              Reversed and        required. Consequently, the trial court
Remanded.                                     issued a judgment nisi and declared the
                                              bond forfeited. See Tex. Code Crim.
COUNSEL: For Appellee: Mr. Tim                Proc. art. 22.02.
Labadie, Assistant County Attorney,
Austin, TX.                                      The State later filed a motion for
                                              summary judgment contending that it
For Appellant: Mr. Tom Benson, Dallas,        had established every element of its
TX.                                           bond-forfeiture claim as a matter of law
                                              and asked the trial court to finalize the
JUDGES: Before Chief Justice Rose,            judgment. In response, Benson raised
Justices Goodwin and Field.                   the affirmative defense provided by
                                              Texas Code of Criminal Procedure
OPINION BY: Scott K. Field                    article 22.13(a)(5)(A), which states:

OPINION                                              The following causes, and
                                                    no other, will exonerate the
           Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)



     defendant and his sureties, if                Although               bond-forfeiture
     any, from liability upon the              proceedings are criminal cases, appellate
     forfeiture taken:                         review of bond-forfeiture proceedings is
        The incarceration of the               governed by the same rules as civil suits.
     principal in any jurisdiction in          See id. art. 44.44; Alvarez v. State, 861
     the United States:                        S.W.2d 878, 881 (Tex. Crim. App. 1992)
                                               (per curiam); Mendez v. State, No. 03-
         in the case of a                      12-00201-CV, 2013 Tex. App. LEXIS
     misdemeanor, at the time of               13402, 2013 WL 5936624, at *1 n.1
     or not later than the 180th day           (Tex. App.--Austin Oct. 31, 2013, no
     after the date of the principal's         pet.) (mem. op.). The appellate court
     failure [*2] to appear in                 reviews a summary judgment de novo
     court.                                    and it takes as true all evidence
                                               favorable to the nonmoving party.
                                               Valence Operating Co. v. Dorsett, 164
Id. art. 22.13(a)(5)(A). Benson presented      S.W.3d 656, 661 (Tex. 2005). When
evidence that Whipple had been                 moving for summary judgment in a
incarcerated in Las Vegas, Nevada,             bond-forfeiture case, the State has the
within 180 days of his failure to appear       burden of establishing that there is no
in Travis County.1                             genuine issue of material fact as to any
                                               [*3] of the essential elements of the
     1 Specifically, Benson produced a         State's cause of action and that it is
     "Custody Letter" from the Las             entitled to judgment as a matter of law.
     Vegas     Metropolitan      Police        Alvarez, 861 S.W.2d at 880. The
     Department      confirming     that       elements of the State's cause of action
     Whipple had been incarcerated.            are the following: (1) there was a valid
    The trial court granted the State's        bond; (2) the defendant's name was
motion for summary judgment, and this          distinctly called at the courthouse door;
appeal followed. In his sole point of          and (3) the defendant failed to appear
error, Benson argues that the trial court      within a reasonable time of that call. See
erred by granting the State's motion for       id. at 881 (construing Tex. Code Crim.
summary judgment because he raised a           Proc. art. 22.02). The burden of proof
genuine issue of material fact with            on the second and third elements is
respect to each element of his                 satisfied by the judgment nisi. Id. Once
affirmative defense. We agree with             the State establishes through the bond
Benson and will reverse.                       and the judgment nisi that there are no
                                               genuine issues of material fact, the
STANDARD OF REVIEW                             burden shifts to the defendant to raise a
                                               fact issue on the affirmative defense of
           Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)



exoneration. Hill v. State, 955 S.W.2d         bond forfeiture by producing evidence
96, 100 (Tex. Crim. App. 1997). A party        of the bail bond and judgment nisi. See
seeking to avoid summary judgment by           Alvarez, 861 S.W.2d at 880-81 ("The
virtue of an affirmative defense bears the     essential elements of the State's cause of
burden of raising a material issue of fact     action in a bond forfeiture proceeding
on each element of that defense. See id.       are the bond and the judicial declaration
at 101 (citing Brownlee v. Brownlee,           of the forfeiture of the bond, which is
665 S.W.2d 111, 112 (Tex. 1984)).              the judgment nisi."). However, Benson
    This dispute requires us to interpret      contends that the trial court erred in
Texas Code of Criminal Procedure               granting summary judgment because he
article 22.13. The meaning of a statute is     presented evidence sufficient to raise a
a legal question, which we review de           fact issue as to each of the elements of
novo. Entergy Gulf States, Inc. v.             the affirmative defense provided by
Summers, 282 S.W.3d 433, 437 (Tex.             Texas Code of Criminal Procedure
2009). When construing a statute, our          article 22.13(a)(5)(A). According to
primary objective is to ascertain and          Benson, this defense requires four
give effect to the legislature's intent.       elements: The principal, (1) who is
First Am. Title Ins. Co. v. Combs, 258         charged with a misdemeanor, (2) is
S.W.3d 627, 631-32 (Tex. 2008). In             incarcerated (3) in any jurisdiction in the
determining legislative intent, we first       United States (4) at the time of or not
consider the plain language of the             later than the 180th day after the date of
statute. General Motors Corp. v. Bray,         the principal's failure to appear in court.
243 S.W.3d 678, 685 (Tex. App.--Austin         [*5] Benson asserts that he has raised a
2007, no pet.). When statutory [*4] text       fact issue as to each of these four
is clear, it is determinative of legislative   elements because he presented evidence
intent, unless enforcing the plain             that Whipple was charged with a
meaning of the statute's words would           misdemeanor in Travis County and was
produce an absurd result. Summers, 282         later incarcerated in Las Vegas within
S.W.3d at 437. Only when the statutory         180 days from the date he failed to
text is ambiguous do we "'resort to rules      appear in court.
of construction or extrinsic aids.'" Id.          In response, the State does not
(quoting In re Estate of Nash, 220             contend that Benson failed to raise a fact
S.W.3d 914, 917 (Tex. 2007)).                  issue on the four elements of his article
                                               22.13(a)(5) defense as identified by
DISCUSSION                                     Benson. Instead, it argues that article
   In arguing that the trial court erred in    22.13(b) adds a required element to
granting summary judgment on the               Benson's defense--that the principal be
State's claim, Benson admits that the          returned to the county of prosecution
State presented a prima facie case for         before the surety can be exonerated from
           Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)



liability. Specifically, the State points      to conclude that the requirements of
out that article 22.13(b) provides:            subsection (b) are not intended to be
                                               included as elements of the cause of
       A surety exonerated under               exoneration under article 22.13(a)(5).
     Subdivision 5, Subsection (a),            Article 22.13(a) lists five exclusive
     remains obligated to pay costs            means of exoneration from bond
     of court, any reasonable and              forfeiture. See id. art. 22.13(a) ("The
     necessary costs incurred by a             following causes, and no other, will
     county to secure the return of            exonerate the defendant and his sureties,
     the principal, and interest               if any, from liability upon the forfeiture
     accrued on the bond amount                taken."). Only one of these five causes--
     from the date of the judgment             article 22.13(a)(3)--explicitly makes the
     nisi to the date of the                   principal's return a requirement. See id.
     principal's incarceration.                art. 22.13(a)(3) (allowing for the
                                               surety's exoneration if principal's failure
                                               to appear in court was because of "some
Tex. Code Crim. Proc. art. 22.13(b). The       uncontrollable circumstance" but only if
State further argues that Benson did not       "such principal appear before final
raise an issue of fact concerning this         judgment on the bond to answer the
element of his defense under article           accusation against him, or show
22.13(a).                                      sufficient cause for not so appearing"). If
    Because the State has not disputed         the legislature had intended return of
the evidence supporting the other              [*7] the principal to be an element of
elements of Benson's defense, and              the defense that subsection (a)(5)(A)
because Benson has not [*6] alleged            provides, it could have included it in that
that he returned Whipple to Travis             subsection, as well. It certainly knew
County, our resolution of this appeal          how to create such a requirement, as
turns on a single question of statutory        evidenced by article 22.13(a)(3), but
construction:       whether         article    chose not to do so here. See TGS-
22.13(a)(5), read in conjunction with          NOPEC Geophysical Co. v. Combs, 340
article 22.13(b), requires that the            S.W.3d 432, 439 (Tex. 2011) ("We
principal be returned to the county of         presume that the Legislature chooses a
prosecution in order for the defendant         statute's language with care, including
and surety to be exonerated from               each word chosen for a purpose, while
liability upon the forfeited bond. This        purposefully omitting words not
appears to be an issue of first impression     chosen."); Riverside Nat'l Bank v. Lewis,
in Texas.                                      603 S.W.2d 169, 175 (Tex. 1980)
                                               (explaining that because legislature
   The plain language of article               knew how to include terms within
22.13(a) and article 22.13(b) compels us
           Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)



statutory definition and did not do so,              contains very similar language,
statutory definition did not include terms           does not require the principal's
"in light of [the term's] contemporaneous            return in order for the surety to be
inclusion of the same terms in a separate            relieved from liability before the
provision").                                         bond is forfeited. Article 17.16
    Rather than adding a requirement to              provides that "[a] surety may
exoneration under article 22.13(a)(5),               before forfeiture relieve the surety
article     22.13(b)      assumes      that          of the surety's undertaking by . . .
exoneration has already occurred.                    delivering to the sheriff of the
Subsection (b) begins by stating that "a             county in which the prosecution is
surety exonerated under Subdivision 5,               pending and to the office of the
Subsection (a)" remains responsible for              prosecuting attorney an affidavit
court costs, reimbursement of the costs              stating that the accused is
incurred by the county to secure return              incarcerated in federal custody, in
of the principal, and interest on the bond           the custody of any state, or in any
amount. Tex. Code Crim. Proc. art.                   county of this state." Tex. Code
22.13(b). This language does not make                Crim. Proc. art. 17.16(a)(2). The
exoneration conditional on payment of                article also provides that, "[f]or the
these amounts; instead, it assumes                   purposes of Subsection (a)(2) of
exoneration and adds these amounts as                this article, the bond is [*9]
further obligations of the surety once               discharged and the surety is
exoneration [*8] has occurred. The                   absolved of liability on the bond on
State appears to take the position that              the verification of the incarceration
return of the principal is a condition               of the accused." Id. art. 17.16(e).
precedent to exoneration; however, it                In other words, there is no
ignores the fact that payment of the                 requirement that the principal be
county's costs in returning the principal            returned to the county of
is but one of three different categories of          prosecution before the surety is
costs listed. There is nothing in the                relieved of liability under article
language of the statute that remotely                17.16. See Allegheny Cas. Co. v.
suggests the requirement that the surety             State, 163 S.W.3d 220, 226 (Tex.
pay costs for return of the principal, by            App.--El Paso 2005, no pet.)
itself, somehow becomes an element of                ("There is no requirement that the
the cause of exoneration.2                           surety notify the trial court, or
                                                     anyone else, that the bond has been
     2    Our interpretation of article              surrendered or to request that a
     22.13(b) as not requiring return of             detainer or arrest warrant be
     the principal is bolstered by the               entered so that the principal is
     fact that article 17.16, which                  subject to return to the sending
           Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)



     jurisdiction.") (citing Castaneda v.      shortly after he failed to appear, securing
     State, 138 S.W.3d 304, 308 (Tex.          his return to appear is quite easy and
     Crim. App. 2003)).                        does not require the assistance of a
         Yet article 17.16 also states, "A     bondsman." Id. at 164. This statement
     surety is liable for all reasonable       underscores the court of criminal
     and necessary expenses incurred in        appeals's reasoning that the return of the
     returning the accused into the            principal is certain when he is
     custody of the sheriff of the county      incarcerated within the United States
     in which the prosecution is               because the State, and not the surety, has
     pending." Tex. Code Crim. Proc.           the authority to secure his return. Cf.
     art. 17.16(g). This language is           Tex. Code Crim. Proc. art. 17.16(c)
     almost identical to that of article       (providing mechanism by which the
     22.13(b) upon which the State             State can secure return of the principal).
     relies. In article 17.16, the fact that   We conclude that Safety National
     a surety remains liable for any           provides no support for the State's
     costs incurred in the return of the       interpretation of article 22.13.3
     principal to the county of
     prosecution does not mean that this             3 Relying on legislative history,
     return is a requirement for the                 the State also argues that article
     surety's release from liability. This           22.13 fails to fulfill the primary
     language further indicates that the             purpose of bail bonds unless it
     legislature does not require a surety           requires that the principal be
     to return the principal before being            returned to the county of
     released from liability on the bond.            prosecution. However, because
                                                     article 22.13 is not ambiguous, we
    The State argues [*10] that the court            need [*11] not address legislative
of criminal appeals opinion in Safety                history. See Entergy Gulf States,
National, in which the State challenged              Inc. v. Summers, 282 S.W.3d 433,
the    constitutionality    of    articles           437 (Tex. 2009).
22.13(a)(5) and 22.16(a), supports its
construction of article 22.13. See Safety         Because we conclude that neither
Nat'l Cas. Corp. v. State, 273 S.W.3d          article 22.13(a)(5) nor article 22.13(b)
157 (Tex. Crim. App. 2008). However,           requires that the principal be returned to
nothing in Safety National states that the     the county of prosecution in order for
principal must have already been               the surety to be exonerated from liability
returned in order for the surety to be         for a forfeited bond, and because we
exonerated from liability. As the court of     further conclude that Benson has raised
criminal appeals explained, "[t]he point       a genuine issue of material fact on every
of Article 22.13(a)(5) is that, if the         element of his affirmative defense under
defendant is incarcerated when or
          Benson v. State, No. 03-15-00121-CR (Tex. App.Austin, Aug. 31, 2015)



article 22.13(a)(5), we sustain Benson's          Scott K. Field, Justice
point of error.                                 Before Chief Justice Rose, Justices
                                              Goodwin and Field
CONCLUSION
                                                  Reversed and Remanded
   We reverse the trial court's grant of
summary judgment and remand this                  Filed: August 31, 2015
cause to the trial court for further              Publish
proceedings consistent with this opinion.
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)




SAFETY NATIONAL CASUALTY CORP., AGENT MANUEL LEYVA D/B/A
        ROCKY BAIL BONDS, Appellant V. THE STATE OF TEXAS


                                    NO. PD-0413-07

                 COURT OF CRIMINAL APPEALS OF TEXAS

                 273 S.W.3d 157; 2008 Tex. Crim. App. LEXIS 641

                                May 14, 2008, Delivered

NOTICE: PUBLISH                                 JUDGES: MEYERS, J., delivered the
                                                opinion of the Court, in which KELLER,
SUBSEQUENT HISTORY: Rehearing                   P.J.,   and     PRICE,       WOMACK,
denied by In re Safety Nat'l Cas. Corp.,        JOHNSON, KEASLER, HERVEY,
2008 Tex. Crim. App. LEXIS 1004 (Tex.           HOLCOMB, and COCHRAN, JJ.,
Crim. App., Aug. 20, 2008)                      joined. COCHRAN, J., filed a
                                                concurring opinion.
PRIOR HISTORY: [**1]
  ON APPELLANT'S PETITION FOR                   OPINION BY: Meyers
DISCRETIONARY REVIEW FROM
THE EIGHTH COURT OF APPEALS                     OPINION
EL PASO COUNTY.                                     [*158] Appellant, Safety National,
Safety Nat'l Cas. Corp. v. State, 225           sought exoneration from the forfeiture of
S.W.3d 684, 2006 Tex. App. LEXIS                a bond due to the incarceration of the
10305 (Tex. App. El Paso, 2006)                 defendant. See Article 22.13(a)(5) of the
                                                Texas Code of Criminal Procedure. 1
COUNSEL: For APPELLANT: Ken W.                  The trial court entered a judgment in
Good, Tyler, TX.                                favor of the State for one half the
                                                amount of the original bond and entered
For STATE: Arne Schonberger, ASST.              findings of fact concluding that Article
COUNTY ATTORNEY, El Paso, TX;                   22.13 (a)(5) unconstitutionally interferes
Jeffrey L. Van Horn, STATE'S                    with the trial court's discretion and with
ATTORNEY, Austin, TX.                           the finality of judgments. 2 Appellant
                                                appealed, and the court of appeals
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



affirmed the judgment of the trial court.                         felony, at the
Safety National v. State, 225 S.W.3d 684                          time of or not
(Tex. App.--El Paso 2006). We granted                             later than the
review to consider the constitutionality                          270th       day
of Articles 22.13(a)(5) and 22.16(a). We                          after the date
hold that the statutes are constitutional                         of          the
and remand the cause to the trial court.                          principal's
                                                                  failure      to
     1 Unless otherwise specified, all                            appear       in
     future references to Articles refer                          court.
     to the Texas Code of Criminal
     Procedure.
     2     The relevant [**2] part of           FACTS
     Article 22.13 states:                          Appellant posted a $ 10,000 bond on
        (a) The following causes, and           behalf of Willie Guerrero, who was
     no other, will exonerate the               charged [*159] with felony theft and
     defendant and his sureties, if any,        was due to appear for a hearing on
     from liability upon the forfeiture         March 25, 2004. When a Safety National
     taken:                                     employee learned that Guerrero failed to
                                                appear at the hearing, she located him
            5. The incarceration of             and informed the court coordinator that
          the principal in any                  Guerrero would appear that afternoon.
          jurisdiction in the United            Instead, the coordinator told Appellant
          States:                               to bring Guerrero to court the following
                                                morning. Guerrero appeared the
                  (A) in the                    following morning and gave the trial
                case of a                       judge several reasons for his failure to
                misdemeanor,                    appear at his scheduled time, including
                at the time of                  the weather, car trouble, and that he had
                or not later                    forgotten. The trial judge was offended
                than the 180th                  by Guerrero's attitude and, [**3] as a
                day after the                   result, entered a judgment nisi forfeiting
                date of the                     the bond and placed Guerrero in
                principal's                     custody. He was later released on a new
                failure     to                  bond. At the final hearing on the
                appear      in                  judgment nisi, Appellant argued that it
                court; or                       was entitled to exoneration under Code
                   (B) in the                   of     Criminal     Procedure      Article
                case of a                       22.13(a)(5) because Guerrero was
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



incarcerated the day after his failure to       allowing defendants to wonder [sic] in at
appear. The court entered a judgment for        a time and date of their own choosing."
the State for $ 5,000 plus court costs and
entered findings of fact and conclusions              3 See Article V, § 1 ("The judicial
of law stating that Article 22.13(a)(5) is            power of this State shall be vested
unconstitutional.                                     in one Supreme Court, in one Court
    The trial court included the following            of Criminal Appeals, in Courts of
in its findings of fact and conclusions of            Appeals, in District Courts, in
law: Article 22.13(a)(5) affects the                  County Courts, in Commissioners
timing and the finality of judgments and              Courts, in Courts of Justices of the
interferes with the core powers of the                Peace, and in such other courts as
court and the administration of justice;              may be provided by law. The
the statute hampers the discretion of the             Legislature may establish such
court in controlling the time of trials and           other courts as it may deem
judgments because "to avoid multiple                  necessary and prescribe the
post-judgment actions, further tying up               jurisdiction     and     organization
its docket, it would have to wait 9                   thereof, and may conform the
months to enter a final judgment" and it              jurisdiction of the district and other
places virtual time and amount limits out             inferior courts thereto."); Article V,
of the discretion of the court; Article V,            § 8 ("District Court jurisdiction
Sections 1 and 8, of the Texas                        consists      [**5] of exclusive,
Constitution 3 vest power over bond                   appellate, and original jurisdiction
forfeitures in the judicial branch and                of all actions, proceedings, and
Article 22.13(a)(5) [**4] interferes with             remedies, except in cases where
that power; the stated purpose of a bond              exclusive, appellate, or original
is to have an orderly docket by having                jurisdiction may be conferred by
defendants appear on time and for                     this Constitution or other law on
sureties to assist with that-to allow a               some other court, tribunal, or
defendant to interfere with the court's               administrative body. District Court
docket by not showing up for trial                    judges shall have the power to
"without forfeiture of any portion of the             issue writs necessary to enforce
bond would cause future, similar                      their jurisdiction.The District Court
behavior by the defendants in this case               shall have appellate jurisdiction
and by other Sureties and accused                     and general supervisory control
persons"; and, taking away "discretion to             over the County Commissioners
order payment of all or part of a bond                Court, with such exceptions and
vitiates the purpose of a bond and would              under such regulations as may be
create havoc with the Court's calendar,               prescribed by law.").
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



    Appellant appealed, arguing that the              attached to either of the others,
trial court's failure to exonerate was                except in the instances herein
error and that the legal conclusions                  expressly permitted."
regarding Article 22.13(a)(5) were                 Appellant filed a petition for
erroneous. The court of appeals                 discretionary review asking us to
overruled      these     arguments     and      determine whether the court of appeals
considered only Appellant's argument            properly found that article 22.16(a) of
that it was entitled to mandatory               the Texas Code of Criminal Procedure is
remittitur under Article 22.16(a) because       unconstitutional based on a violation of
Guerrero was released on a new bond in          the separation-of-powers provision in
[*160] the case. The court of appeals           the Texas Constitution. We additionally
held that the current version of Article        granted review on our own motion to
22.16(a) violates Article II, section 1, of     determine whether article 22.13(a)(5) of
the Texas Constitution 4 because it             the Texas Code of Criminal Procedure is
provides for mandatory remittitur at any        [**7] unconstitutional based on a
time prior to final judgment if the             violation of the separation-of-powers
defendant principal is released on new          provision in the Texas Constitution.
bail [**6] in the case or the case for
which bond is given is dismissed. In            ARGUMENTS OF THE PARTIES
doing so, the legislature has removed the
trial court's discretion to remit the bond          Appellant argues that articles 22.13
in the event new bail is given or the           and 22.16 do not order a trial court to
criminal case is dismissed. Safety              alter a final judgment and do not tell the
National, 225 S.W.3d 684, 691-92.               trial court when it can enter a final
                                                judgment. Rather, Article 22.13 provides
     4 Article II, § 1, discusses the           affirmative defenses for the surety, and
     Division of Powers and states,             Article 22.16 sets out the limited
     "The powers of the Government of           situations wherein the surety may seek
     the State of Texas shall be divided        remittitur of the bond prior to final
     into three distinct departments,           judgment. Even after final judgment,
     each of which shall be confided to         Chapter 22 allows a special procedure
     a separate body of magistracy, to          under which the surety may seek the
     wit: Those which are Legislative to        return of a portion of the bond amount.
     one; those which are Executive to          See Article 22.17. The legislature
     another, and those which are               amended Chapter 22 in 2003, removing
     Judicial to another; and no person,        the limitations on the trial court's ability
     or collection of persons, being of         to enter a final judgment and setting out
     one of these departments, shall            the situations in which a bondsman is
     exercise any power properly                entitled to a full remittitur if the request
                                                is made while the court has jurisdiction
         Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



over the case. The time limits in Article        who are on bond and fail to appear or
22.13(a)(5) apply to the surety, not to          build more jails to hold those who are
the trial court. They are an expiration          not released on bond.
date on the surety's ability to use the              The State argues that, through
defense that the principal is incarcerated,      Articles 22.13(a)(5) and 22.16, "the
not a mandate telling the state when to          Legislature told the Court what
enter a judgment; thus, the time periods         judgment it must enter and in so doing
do [**8] not prevent the trial court from        has improperly exercised power reserved
entering a final judgment at any time.           to the judicial branch of government to
Article 22.16 also does not place time           hear controversies and apply discretion
limits or restrictions on a trial court's        to determine the amount of the
ability to enter a final judgment. It            judgment" and "by requiring a zero
provides for mandatory remittitur prior          judgment in all cases, no matter what the
to the entry of the final judgment only in       circumstances, (i.e. the amount of the
the limited situation of the principal           bond, the reason for missing court and
being released on new bail in the case or        the delay caused), the Legislature is
if the case is dismissed, and for                improperly usurping a judicial function."
discretionary remittitur for good cause          This removes the court's power to
shown.                                           consider facts related to the reason for
    The time limits in the statutes simply       the failure to appear and to enter a
place the burden on bondsmen to file a           judgment based on those facts. Courts
motion for remittitur while the court still      are also prevented by Article 22.13(a)(5)
has jurisdiction over the case and do not        from entering a judgment for nine
place restrictions on the court's ability to     months because there is no guidance for
enter judgment, therefore, the statutes do       the court concerning situations wherein
not violate the separation-of-powers             a final judgment is given prior to nine
doctrine of the Texas Constitution.              months and the defendant is returned
Finally, Appellant argues that the               after the judgment but before the nine
legislature has indicated an intent to           months have expired. This interferes
reward bondsmen who assist the state in          with the court's ability to control its
returning to custody principals who fail         docket because the court's judgment
to appear, because the purpose of bail is        would not actually be final until 270
to secure the presence of the accused,           days [**10] had passed since, even if
not to be a revenue device or to be              final judgment were entered, it would be
punitive or to substitute for [*161] a           nullified or would have to be reformed if
fine. Without bondsmen, the court                the defendant became incarcerated
dockets would be even worse, and the             within that time period. The State claims
state would either have to hire more             that subsequent appearance should not
officers to seek out defendants [**9]            exonerate a forfeiture because that
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



would allow defendants to keep missing          legislature amended Article 22.16 in
hearings until there are no witnesses or        2003 and moved the section that
evidence against him, and therefore,            addressed the principal's incarceration to
there should be a penalty for failure to        Article 22.13. In Armadillo Bail Bonds
appear at the designated time. Complete         v.     State    802       S.W.2d      237
remission of the forfeiture would mean          (Tex.Cr.App.,1990), State v. Matyastik,
that the defendant is not really bound to       811 S.W.2d 102 (Tex. Crim. App. 1991),
appear and can create continuances at           and Lyles, we held that the former
will. Because the court has the discretion      statute was unconstitutional.
to set the amount of the bail, and the              Considering the former version of
purpose of a bond is to assure the              Article 22.16, which placed time
fulfillment of an obligation to appear in       restrictions upon when a final judgment
court and to pay a penalty if that              could be entered, 5 Armadillo held that
obligation is not fulfilled, the State          the restrictions [*162] on the court's
asserts that it violates the separation-of-     right to determine when to decide a case
powers doctrine for the Legislature to          violated     the     separation-of-powers
make the bond unenforceable through             provision of the Texas Constitution. We
forced exoneration and for the surety to        stated, "We have held repeatedly that the
have the same risk whether the court sets       separation of powers provision may be
a high or low bond. As such, the                violated in either of two ways. First, it
Legislature has made failure to appear          [**12] is violated when one branch of
an offense without a penalty, which             government assumes, or is delegated, to
interferes with the orderly processes of        whatever degree, a power that is more
the courts. The State points out that, in       'properly attached' to another branch.
[**11] Lyles v. State, 850 S.W.2d 497,          The provision is also violated when one
501 (Tex. Crim. App. 1993), this Court          branch unduly interferes with another
said that the old statute requiring             branch so that the other branch cannot
mandatory remittitur at any time prior to       effectively exercise its constitutionally
final judgment removed a trial court's          assigned powers." Armadillo, 802
discretion. Under the same reasoning,           S.W.2d at 239 (internal citations
forcing a court to enter a zero judgment        omitted) (emphasis in original). We
against a bond also violates separation of      explained that the judicial branch has the
powers.                                         power to hear evidence, decide issues of
                                                fact, decide questions of law, enter a
CASE LAW                                        final judgment on the facts and the law,
   The former version of Article 22.16          and execute the final judgment or
encompassed both the issues of the              sentence, and the Legislature has
principal's incarceration and the               authority over judicial administration, as
principal's release on new bail. The            long as it does not infringe upon the
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



substantive power of the judicial branch.                   jurisdiction and the
Id. at 239-240. In Matyastik, we                            incarceration is verified
extended our holding in Armadillo,                          as       provided      by
eliminating the time restrictions in                        Subsection (b) of this
Article 22.16(c) and determining that                       article;
remittitur may occur anytime between                           (3) the principal is
forfeiture and the entry of a final                         released on new bail in
judgment. Matyastik, 811 S.W.2d at 104.                     the case;
We considered this issue again in Lyles
v. State and held that the mandatory                           (4) the principal is
remittitur provisions of Article 22.16 are                  deceased; or
void, but because Article 22.16(d)                             (5) the case for which
allows the trial court to [**13] remit all                  bond was given is
or part of the bond at the court's                          dismissed.
discretion prior to the entry of a final
judgment, that subsection does not                    (b) For the purposes of Subsection
violate the separation-of-powers. 850                 (a)(2) of this article, a surety may
S.W.2d at 501.                                        request confirmation of the
                                                      incarceration of his principal by
     5 Former Article 22.16 stated:                   written request to the law
         (a) After forfeiture of a bond               enforcement agency of the county
     and before the expiration of the                 where prosecution is pending. A
     time limits set by Subsection (c) of             law enforcement agency [**14] in
     this article, the court shall, on                this state that receives a request for
     written motion, remit to the surety              verification shall notify the court in
     the amount of the bond after                     which prosecution is pending and
     deducting the costs of court, any                the surety whether or not the
     reasonable costs to the county for               principal     is    or has been
     the return of the principal, and the             incarcerated in another jurisdiction
     interest accrued on the bond                     and the date of the incarceration.
     amount as provided by Subsection                    (c) A final judgment may be
     (e) of this article if:                          entered against a bond not earlier
                                                      than:
            (1) the principal is
          incarcerated    in   the                            (1) nine months after
          county in which the                               the date the forfeiture
          prosecution is pending;                           was entered, if the
             (2) the principal is                           offense for which the
          incarcerated in another
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



          bond was given is a                   ultimately appearing in [*163] court
          misdemeanor; or                       because bondsmen would have a
             (2) 18 months after                financial incentive to produce the
          the date the forfeiture               principal many weeks after he or she
          was entered, if the                   originally failed to appear in court . . .
          offense for which the                 [and] would give bondsmen consistency
          bond was given is a                   for principals who were incarcerated,
          felony.                               while allowing a judge to adjust the time
                                                period as needed in a particular case."
     (d) After the expiration of the time       SENATE COMM. ON CRIMINAL
     limits set by Subsection (c) of this       JURISPRUDENCE, BILL ANALYSIS,
     article and before the entry of a          Tex. S.B. 1336, 78th Leg., R.S. (2003).
     final judgment against the bond,               As we stated in State v. Sellers, 790
     the court in its discretion may remit      S.W.2d 316, 321 (Tex. Crim. App. 1990),
     to the surety all or part of the           a judgment nisi alone does not authorize
     amount of the bond after deducting         recovery of a bond amount by the State.
     the costs of court, any reasonable         A judgment nisi is a provisional
     costs to the county for the return of      judgment that is not final or absolute,
     the principal, and the interest            but may become final. See Article 22.14.
     accrued on the bond amount as              Nisi means "unless," so a judgment nisi
     provided by Subsection (e) of this         is valid unless a party shows cause why
     article.                                   it should be withdrawn. In the case
         (e) For the purposes of this           before us, Appellant argues that there
     article, interest accrues on the bond      are two reasons that the judgment should
     amount from the date of forfeiture         be withdrawn. First, the             [**16]
     in the same manner and at the same         defendant was incarcerated the day after
     rate as provided for the accrual of        his initial failure to appear, which, under
     prejudgment interest in civil cases.       Article 22.13(a)(5), triggers exoneration
                                                from the forfeiture of the bond. Second,
ANALYSIS                                        the defendant was released on new bond
                                                in the same case after he was arrested on
   In discussing [**15] the reasons for         the warrant resulting from the judgment
the 2003 amendments to Articles 22.13           nisi, which is a reason for remittitur
and 22.16, the Legislature stated that,         prior to final judgment under Article
"the state is more interested in having         22.16 (a).
the defendant appear than in receiving
forfeited bond money. Setting time                 The State reads Article 22.13(a)(5) to
limits on when bonds would be forfeited         mean that the court cannot enter a final
would result in more defendants                 judgment for nine months because then
                                                it would have "multiple post-judgment
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



actions" if the defendant returned after        has been dismissed. It makes sense that
final judgment but within nine months           when a new bond is issued in a case, the
after his failure to appear. However,           old bond should be remitted; this does
Article 22.13 does not say that the trial       not mean that a defendant can be on
court must wait until the time in               bond somewhere else for some other
subsection (a)(5) lapses to enter a final       case and be entitled to full remittitur.
judgment. The statute does not prohibit         Both Articles 22.13 and 22.16 require
the entry of a judgment or dictate when         remittitur only in specific, limited
the judgment must be entered. In fact,          situations--situations in which the return
Article 22.13 says nothing about the            of the defendant is certain (because the
entry of a final judgment--it simply            defendant [**18] is incarcerated
provides the surety with a defense if the       elsewhere), the return is secured by
defendant is incarcerated within nine           another bond in the same case, or the
months after he fails to appear. If that        return is unnecessary (because the case
term ends before the court enters a final       has been dismissed). 6
judgment on the bond, under Article
22.13, the court must remit the amount                6 We note that there are other
of [**17] the bond.                                   situations in the Code of Criminal
    The State also implies that Article               Procedure in which the legislature
22.13(a)(5) is triggered by the                       has limited the circumstances
defendant's incarceration, whether or not             under which courts may provide a
he is returned, and that he will be                   requested remedy. For example, in
exonerated without ever appearing in                  Articles 11.07, § 4 and 11.071, § 5,
court, stating that "Article 22.13(a)(5)              the legislature tells us under what
requires a zero judgment regardless of                limited conditions we may consider
the crime for which the defendant is                  a subsequent application for writ of
arrested and without the actual return of             habeas corpus.
the Defendant-Principal to the County of            [*164]      The point of Article
his    prosecution."      (Emphasis     in      22.13(a)(5) is that, if the defendant is
Respondent's Brief on the Merits). This         incarcerated when or shortly after he
is simply incorrect. As specifically            failed to appear, securing his return to
stated in Article 22.13(b), a surety            appear is quite easy and does not require
exonerated under subsection (a)(5)              the assistance of a bondsman. Because
remains obligated to pay costs incurred         the county would incur the cost to
by a county to secure the return of the         transfer the defendant from another
principal. Similarly, the court must remit      jurisdiction, Article 22.13(b) makes the
the amount of the bond under Article            surety liable for any costs incurred by
22.16 if the defendant has been given           the county to secure the return of the
new bond in the same case or the case           defendant. But the statute does not
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



require a court to wait nine months             can require a cash-only bond in lieu of a
before entering a final judgment, and           surety bond. See Article 23.05(a). And
thus, does not interfere with a court's         bail is not intended to be punitive or to
timing or finality of judgments. In this        be a revenue device. Bail bonding is a
case, Guerrero was returned the day             business; therefore, having to pay court
after his failure to appear and was in          costs and interest for the time during
court prior [**19] to the forfeiture of         which a defendant fails to appear is
the bond. He was placed in custody at           incentive for the bondsman to secure the
the same time the court entered the             attendance of the defendant at his
judgment nisi forfeiting the bond. And          scheduled hearing. The surety does not
Appellant requested remittitur under            have the same risk when the court sets a
Article 22.13 prior to the entry of final       high bail as it has when the court sets a
judgment. Therefore, the State's                low one, because a high bond has higher
hypothetical regarding Article 22.13            interest for the time it takes the surety to
forcing the trial court to wait nine            return the defendant.
months before entering judgment does
not apply to this situation.                    CONCLUSION
    We disagree with the State's                    Articles 22.13 and 22.16 do not
argument that there is no guidance for          interfere with the trial court's ability to
the court concerning situations wherein         enter final judgment, nor do they dictate
a final judgment is given prior to nine         the time frame within which a trial court
months and the defendant is returned            may enter a final judgment. The statutes
after the judgment but before the nine          do not violate the separation-of-powers
months have expired. Article 22.17              doctrine      and     thus     are      not
specifically allows for a special bill of       unconstitutional. The decision of the
review up to two years after a final            court of appeals is reversed, and the
judgment has been entered, which may            cause is remanded to the trial court.
include a request that all or part of the           Meyers, J.
forfeited bond be returned. The State is
also incorrect that complete remission of           Delivered: May 14, 2008
the forfeiture would mean that the                  Publish
defendant is not really bound to appear
and can create continuances at will and         CONCUR BY: COCHRAN
that the Legislature has made failure to
appear an offense without a penalty.            CONCUR
There are penalties, such as contempt
                                                   COCHRAN, J., filed a concurring
and additional criminal charges, that can
                                                opinion.
be pursued to punish a defendant for
failure [**20] to appear, or the court
        Safety National Casualty Corp. v State, 273 S.W.3d 157 (Tex. Crim. App. 2008)



OPINION                                         notes, "Bail bonding is a business[.]" 1
    The State discusses several valid           Indeed it is. To the extent that the
reasons why Article 22.13, dealing with         interests of the bail bond business and
the exoneration of a bail bond, may             the needs of the criminal justice system
[**21] be a counterproductive statute           are not on the same track, local and state
that ties the hands of judges and thwarts       governments are free to make
the purpose of having a surety in the first     appropriate adjustments. Courts do not
place. Nonetheless, I agree with the            decide the wisdom of such laws, they
majority that these deficits do not rise to     decide only their constitutionality.
the level of an unconstitutional [*165]
violation of the separation-of-powers                 1 Majority Op. at 13.
doctrine. These are matters that are best           I therefore join the majority opinion.
left to the Legislature and to local                Filed: May 14, 2008
governments that may increase their
reliance upon non-profit Pretrial                   Publish
Services programs. The majority aptly
