                                                                       ACCEPTED
                                                                   03-15-00121-CR
                                                                           5833554
                                                        THIRD COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                                                              6/26/2015 1:30:29 AM
                                                                 JEFFREY D. KYLE
                                                                            CLERK




              NO. 03-15-00121-CR             RECEIVED IN
                                        3rd COURT OF APPEALS
         IN THE COURT OF APPEALS            AUSTIN, TEXAS
          THIRD DISTRICT OF TEXAS       6/26/2015 1:30:29 AM
              AT AUSTIN, TEXAS            JEFFREY D. KYLE
  __________________________________________ Clerk

                 TOM BENSON,
                Defendant-Surety,
                                                     July 8, 2015
                   Appellant,

                       vs.

              THE STATE OF TEXAS,
                       Appellee.
  _________________________________________
Appealed from the County Court at Law Number One
           Sitting at Travis County, Texas
         Trial Court No. C-1-CV-14-002294
       The Honorable Todd Wong, Presiding

         APPELLANTS’ REPLY BRIEF




                                               TOM BENSON
                                      Texas Bar No. 02170500
                                      900 Jackson St., Ste. 750
                                     Dallas, Texas 75202-4461
                                    (214) 742-9898 Telephone
                                          (214) 742-9879 Fax
                                      tomrbenson@gmail.com

                                      APPELLANT PRO SE
                                       TABLE OF CONTENTS


INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

REPLY POINTS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

REPLY POINT 1:                     . ............................................ 1

REPLY POINT 1:                     SURETY WAS NOT REQUIRED TO PRESENT
                                   EVIDENCE THAT BRIAN WHIPPLE WAS
                                   RETURNED TO TRAVIS COUNTY AFTER HIS
                                   FAILURE TO APPEAR.. . . . . . . . . . . . . . . . . . . . . . . . 2

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

REQUEST FOR RELIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                        ii
                                        INDEX OF AUTHORITIES
CASES

Boylin v. State, 818 S.W.2d 782, 785-786 (Tex. Crim. App. 1991). . . . . . . 4, 7, 9

Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App.2011).. . . . . . . . . . . . . . . 4

Safety Nat. Cas. Corp. v. State, 261 S.W.3d 160, 161-162
(Tex. App. Houston [1st Dist.] 2008), pet. granted, supplemental opinion,
reaffirming original holding on article 22.13, addressing additional issue of
proper court costs, Safety Nat. Cas. Corp. v. State, 273 S.W.3d 730, 734
(Tex. App. Houston [1st Dist.] 2008), reversing only part of judgment
concerning court costs, Safety Nat. Cas. Corp. v. State, 305 S.W.3d 586, 590
(Tex. Crim. App. 2010, opinion on remand, Safety Nat. Cas. Corp. v. State
01-07-00122-CR and 01-07-00123-CR (Tex. App. Houston [1st Dist.] 2010. . 8,
                                                                              9

Safety National Casualty Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App.
2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App.2009)
(quoting State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App.1997)).. . . . . . . 5


TEXAS CODE OF CRIMINAL PROCEDURE

22.13(a)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-7, 9

22.16(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

22.16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

22.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

art. 22.13(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3-7

Chapter 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                                                              iii
         REPLY POINTS PRESENTED




              REPLY POINT I

   SURETY WAS NOT REQUIRED TO PRESENT
EVIDENCE THAT BRIAN WHIPPLE WAS RETURNED
       TO TRAVIS COUNTY AFTER HIS
           FAILURE TO APPEAR.




                   iv
                              NO. 03-15-00121-CR
                          IN THE COURT OF APPEALS
                          THIRD DISTRICT OF TEXAS
                              AT AUSTIN, TEXAS


TOM BENSON,
Defendant-Surety,
     Appellant,
vs.

THE STATE OF TEXAS,
     Appellee.


                          APPELLANTS’ REPLY BRIEF



                       SUMMARY OF THE ARGUMENT

REPLY POINT 1:            SURETY WAS NOT REQUIRED TO PRESENT
                          EVIDENCE THAT BRIAN WHIPPLE WAS
                          RETURNED TO TRAVIS COUNTY AFTER HIS
                          FAILURE TO APPEAR.


      1)     Neither article 22.13(a)(5)(A) or article 22.13(b) require the

incarceration of the principal on a bond in any specific jurisdiction in the United

States, just that he be incarcerated in any jurisdiction in the United States to be

entitled to assert the limited exoneration defense provided by article

22.13(a)(5)(A).


                                           1
                                 ARGUMENT

REPLY POINT 1:            SURETY WAS NOT REQUIRED TO PRESENT
                          EVIDENCE THAT BRIAN WHIPPLE WAS
                          RETURNED TO TRAVIS COUNTY AFTER HIS
                          FAILURE TO APPEAR.


      Now that the State has filed its brief, the only remaining issue whether there

is a fifth element to the defense under article 22.13(a)(5)(A) that the Surety must

raise and supply evidence in order to defeat the State’s Motion for Summary

Judgment. The four elements advanced by the Surety are: (1) Incarceration of

principal on bond; (2) within any jurisdiction in the United States; (3) principal

charged with misdemeanor; and (4) Incarceration within 180 days from the date

the principal fail to appear in court. The State does not contest these four

elements. (State’s Brief pages 4, 7, 13-14). The State contends that there is

another element.

      Under the State’s position the five elements would be: (1) Incarceration of

principal on bond; (2) within any jurisdiction in the United States; (3) principal

charged with misdemeanor; (4) Incarceration within 180 days from the date the

principal fail to appear in court; and (5) principal is returned to the county of

prosecution. (emphasis supplied).




                                          2
       Both appellant and the State rely upon the identical statutory language

which is found article1 22.13(a)(5) and 22.13(b). (Appellant’s Brief page 6,

Appendix Bookmark “4" pages 19-20) and (State’s Brief pages 5-6 and Appendix

Bookmark “Art2213").

       The applicable language in art. 22.13 provides:

“Art. 22.13. CAUSES WHICH WILL EXONERATE.

(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:

(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) in the case of a felony, at the time of or not later than the 270th 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.”



       1
              All statutory references are to the Texas Code of Criminal Procedure unless
otherwise noted.

                                               3
      The State contends that support for the fifth element can be found by

“reading” the following emphasized language found in article 22.13(b) together

with article 22.13(a)(5)(A).

      “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.”

      (State’s Brief page 7)(emphasis in original).

      To resolve the question presented, the Court must first construe articles

23.13(a)(5)(A) and 23.13(b). Statutory construction is a question of law, which is

reviewed de novo.) Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App.2011).

      The starting point is the focus upon the literal text of the statute. Boylin v.

State, 818 S.W.2d 782, 785-786 (Tex. Crim. App. 1991). If the statute is clear and

unambiguous, the court should not add or subtract from the statute. This plain

meaning rule has one narrow exception. It is where the plain language would lead

to absurd consequences that the Legislature could not possibly have intended. Id.

at 785-786. If the language is not plain, but rather ambiguous, then and only then,

out of absolute necessity, is it constitutionally permissible for a court to consider

                                           4
extra textual factors. Id. at 785-786.

   When interpreting the plain language of a statute, "each word, phrase, clause,

and sentence in a statute should be given effect if reasonably possible." Tapps v.

State, 294 S.W.3d 175, 177 (Tex. Crim. App.2009) (quoting State v. Hardy, 963

S.W.2d 516, 520 (Tex. Crim. App.1997)). And the Court should "presume that

every word in a statute has been used for a purpose and that each word, phrase,

clause, and sentence should be given effect if reasonably possible." Id. at 520.

                                   State’s Argument

      The State argues that by retaining the surety’s liability for return costs, in

several provisions of Chapter 222, article 22.13(a)(5)(A) contemplates the return of

the principal to the county of prosecution. (State’s Brief pages 10-12). The State

relies on article 22.13(b). (State’s Brief page 7). The State supports its reading of

articles 22.13(a)(5)(A) and 22.13(b) from what it terms as “guidance” found in

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

(State’s Brief pages 7-8).

      The State additionally argues that to reward the surety with very limited

liability when the principal is incarcerated, but not returned to the prosecuting

county does not fulfill the primary purpose of a bail bond. (State’s Brief page 10).

      2
             Articles 22.16(a); 22.16(b); and 22.17.

                                              5
                                       Surety’s Reply

      The language in articles 22.13(a)(5)(A) and 22.13(b) is clear and

unambiguous, the statute and entitles a surety to exoneration from a forfeiture

previously, taken if the principal is incarcerated in any jurisdiction in the United

States. It does not require that the principal be incarcerated in any particular

jurisdiction except that the jurisdiction be in the “United States” and it does not

require that the must be returned to the county of prosecution as the State alleges.

      The exoneration provided by article 22.13(a)(5)(A) is not a complete

exoneration.3 Article 23.13(b) provides that some specific specified items that are

excluded from the exoneration arising from the timely incarceration of the

principal in any jurisdiction in the United States. This is clear from the use of the

words “remains obligated” in art. 22.13(b). The items that are reserved from

exoneration are: costs of courts; 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.

      The argument is not over these items which are excluded from exoneration

when an incarceration of the principal occurs, but rather it is when does the

      3
             The State refers to this as “limited liability”.

                                                6
exoneration of non-excluded item(s) occur. The State’s argument is in effect that

the exoneration of the non-excluded item(s ) occurs when the principal on the

bond is incarcerated in any jurisdiction in the United States and the principal is

returned to the county of prosecution.

      The State does not argue that the language of article 22.13(b) says that the

principal must be returned to the county of prosecution, but alleges that the statute

“contemplates” it. (State’s Brief pages 10-12).

      The State provides no reason why the plain language of the statute should

not be applied. The State does not argue that the language of either article

22.13(a)(5)(A) or article 22.13(b) are ambiguous4 or that a plain reading of either

statute lead to an absurd result.5

      Its argument begin with extra textual factors. This is incorrect under Boylin

v. State, supra, 818 S.W.2d at 785-786. Only if the language in article

22.13(a)(5)(A) or article 22.13(b) is not plain, but is ambiguous, then and only

then, and out of absolute necessity, would it be constitutionally permissible to

consider extra textual factors. Id. at 785-786.

      Since the text of articles 22.13(a)(5)(A) and 22.13(b) are plain and not


      4
             The word ambiguous does not appear in the State’s argument.
      5
             The word absurd does not appear in the State’s argument.

                                             7
ambiguous and do not result in absurd consequences that the Legislature could not

possibly have intended, the State’s argument of a fifth element requiring that the

Surety was required to show that the principal on the bond in this case was

returned to Travis County is incorrect and the State’s argument that to reward the

surety with very limited liability when the principal is incarcerated, but not

returned to the prosecuting county does not fulfill the primary purpose of a bail

bond is not supported by current law. The purpose of a bail bond is expressed by

the plain text of the statutes in question.

      A similar issue regarding interest was decided in Safety Nat. Cas. Corp. v.

State, 261 S.W.3d 160, 161-162 (Tex. App. Houston [1st Dist.] 2008), pet. granted,

supplemental opinion, reaffirming original holding on article 22.13, addressing

additional issue of proper court costs, Safety Nat. Cas. Corp. v. State, 273 S.W.3d

730, 734 (Tex. App. Houston [1st Dist.] 2008), reversing only part of judgment

concerning court costs, Safety Nat. Cas. Corp. v. State, 305 S.W.3d 586, 590 (Tex.

Crim. App. 2010, opinion on remand, Safety Nat. Cas. Corp. v. State 01-07-

00122-CR and 01-07-00123-CR (Tex. App. Houston [1st Dist.] 2010,

Memorandum Opinion).

      In this case the State argued that the date of incarceration of the principal on

the bond that stopped the accrual of interest on the bond was when the principal

                                              8
was incarcerated in the county of prosecution. The Court held otherwise, it held

that by the plain language in article 22.13 the accrual of interest on the bond

stopped when the principal on the bond was incarcerated in any jurisdiction in the

United States and this was not an absurd result. Safety Nat. 261 S.W.3d at 162.

This same reasoning applies to this case for the reasons argued above.

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

2008) does not provide the State with ability to avoid the holdings in Boylin v.

State, supra, 818 S.W.2d 785-786 and in any event the State’s “guidance” found

in Safety National Casualty Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App.

2008) is dicta. The only question decided in Safety National, supra, was whether

article 22.13(a)(5) and article 22.16 were unconstitutional based on a violation of

the separation of powers provision in the Texas Constitution. Id. at 158 and 160.

                                      CONCLUSION

       Because there is no requirement that the Surety was required to present

evidence that Brian Whipple was returned to Travis County after his failure to

appear the Trail Court Faced with the Surety’s response6 and the summary

judgment proof had only one proper action to take which was to deny the State’s



       6
          Surety did not move for summary judgment on his affirmative defense, leaving it to be
resolved later.

                                               9
Motion. The case before this court is not to determine the correctness of, or

application of, the Surety’s affirmative defense, but the whether the Trial Court

erred in granting the State’s Motion in light of the surety’s response and summary

judgment evidence.

      At heart, this case is very simple. Granting a summary judgment despite a

pled affirmative defense by the non-movant supported with summary judgment

evidence is an error that caused the trial court to render an improper judgment

which should be reversed and remanded to the trial court.

                            REQUEST FOR RELIEF

      Appellant respectfully request that this Court reverse the judgment of the

trial court, remand the cause to the trial court and grant such other and further

relief as to which he has shown himself entitled.

                                 Respectfully submitted,

                                 /s/ Tom Benson
                                 _________________________________
                                 Tom Benson
                                 Texas State Bar No. 02170500
                                 900 Jackson St., Suite 750
                                 Dallas, Texas 75202-4461
                                 (214) 742-9898 Telephone
                                 (214) 742-9879 Fax
                                 tomrbenson@gmail.com

                                 APPELLANT PRO SE

                                          10
                     CERTIFICATE OF COMPLIANCE

       I certify that this document was produced on a computer using
WordPerfectX7 and contains approximately 2,487 words as determined by the
computer software’s word-count function, excluding the sections of the document
listed in Texas Rules of Appellate Procedure 9.4(i)(1) and that Appellants Brief
and Reply Brief together contains approximately 4,576 words as determined by
the computer software’s word-count function.

                               /s/ Tom Benson
                               ______________________________________
                               Tom Benson




                                       11
                         CERTIFICATE OF SERVICE

      I certify that on June 26, 2015, a true and correct copy of the foregoing
Appellants’ Reply Brief was served on appellee’s attorney, Tim Labadie,
Assistant County Attorney by email to tim.labadie@traviscountytx.gov.


                                /s/ Tom Benson
                                ______________________________________
                                Tom Benson




                                         12
