                                                                         ACCEPTED
                                                                     03-15-00121-CR
                                                                             5475449
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                5/29/2015 3:22:17 PM
                                                                   JEFFREY D. KYLE
                                                                              CLERK
               NO. 03-15-00121-CR

          IN THE COURT OF APPEALS               FILED IN
                                         3rd COURT OF APPEALS
 FOR THE THIRD JUDICIAL DISTRICT OF TEXAS    AUSTIN, TEXAS
               AT AUSTIN, TEXAS          5/29/2015 3:22:17 PM
________________________________________________
                                           JEFFREY D. KYLE
                                                 Clerk

            TOM BENSON, Appellant

                        v.

         THE STATE OF TEXAS, Appellee
________________________________________________

   Appealed from the County Court at Law No. 7,
 Travis County, Texas, Cause No. C-1-CV-14-002294

________________________________________________

               APPELLEE’S BRIEF
________________________________________________

                      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

                      Attorney for the State of Texas, Appellee


        ORAL ARGUMENT REQUESTED
                                       TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ................................................................................... ii

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

II.     STATEMENT OF FACTS............................................................................. 2

III.    SUMMARY OF THE ARGUMENT ........................................................... 4

IV.     ARGUMENT .................................................................................................5

        A. Standard of Review and the Applicable Law ..................................... 5

        B. Tom Benson did not present any evidence that Brian
           Whipple returned to Travis County after his failure to appear ....... 6

IV.     PRAYER .......................................................................................................14

CERTIFICATE OF SERVICE ...............................................................................15




                                                          i
                                INDEX OF AUTHORITIES
                                                                                                  Page

CASES

Armadillo Bail Bonds. v State,
    802 S.W.2d 237 (Tex. Crim. App. 1990 ....................................................... 8

Burns v. State,
     861 S.W.2d 878 (Tex. Crim. App. 1993) .................................................5, 6

Ex parte Reis,
      117 Tex. Crim. 123, 33 S.W. 2d 435 (1930) ................................................. 9

Ex parte Vasquez,
      558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................................... 9

Gramercy Insurance Co. v State,
     834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.) ...................10, 13

Grimes County Bail Board v. Ellen,
     267 S.W.3d 310 (Tex. App.-Houston [14th Dist.] 2008, pet. denied.) .10

KPMG Peat Marwick v. Harrison County Housing Fin. Corp.,
   988 S.W.2d 746 (Tex. 1999)...........................................................................6

Kubosh v. State,
     177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)............ 5

Lyles v State,
      850 S.W.2d 497 (Tex. Crim. App. 1993) .....................................................8

McKenna v State,
    247 S.W.3d 716 (Tex. Crim. App. 2008) ...................................................13




                                                   ii
Mendez v. State,
    No. 03-12-00200-CV, 2013 Tex. App. LEXIS 13278, 2013 WL 5914142,
    (Tex. App. –Austin Oct. 25, 2013, no pet.)(mem.op) ...............................5

Nixon v. Mr. Property Management, Co.,
     690 S.W.2d 546 (Tex. 1985)...........................................................................5

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

State v Matyastik,
       811 S.W.2d 102 (Tex. Crim. App. 1991) .....................................................8


STATUTES, RULES AND OTHER

TEX. CODE CRIM. PROC. art. 17.01 ........................................................................... 9

TEX. CODE CRIM. PROC. art. 17.02 ........................................................................... 9

TEX. CODE CRIM. PROC. art. 17.08 ........................................................................... 9

TEX. CODE CRIM. PROC. art. 22.10 ........................................................................... 5

TEX. CODE CRIM. PROC. art. 22.13 .....................................................................8, 11

TEX. CODE CRIM. PROC. art. 22.13(a)(1)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(2)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(3)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(4)................................................................11

TEX. CODE CRIM. PROC. art. 22.13(a)(5)..................................................8, 9, 10, 13

TEX. CODE CRIM. PROC. art. 22.13(a)(5)(A) ................................................3, 4, 6, 7


                                                     iii
TEX. CODE CRIM. PROC. art. 22.13(b) ..................................................4, 7, 9, 10, 11

TEX. CODE CRIM. PROC. art. 22.16 .....................................................................8, 12

TEX. CODE CRIM. PROC. art. 22.16(a) ....................................................................11

TEX. CODE CRIM. PROC. art. 22.16(b) ....................................................................12

TEX. CODE CRIM. PROC. art. 22.17 ...................................................................12, 13

TEX. CODE CRIM. PROC. art. 22.17(a) ....................................................................12

TEX. CODE CRIM. PROC. art. 44.42 ........................................................................... 5

TEX. CODE CRIM. PROC. art. 44.44 ........................................................................... 5

TEX. R. CIV. P. 166a(c) ..............................................................................................5

SENATE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS,
Tex. S.B. 1336, 78th Leg., R.S. (2003) ..................................................................... 9




                                                          iv
                          NO. 03-15-00121-CR

                   IN THE COURT OF APPEALS
           FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
                       AT AUSTIN, TEXAS

          ________________________________________________

                       TOM BENSON, Appellant

                                    v.

                    THE STATE OF TEXAS, Appellee

          ________________________________________________

             Appealed from the County Court at Law No. 7,
           Travis County, Texas, Cause No. C-1-CV-14-002294

          ________________________________________________

                          APPELLEE’S BRIEF

          ________________________________________________


TO THE HONORABLE THIRD COURT OF APPEALS:

     The State of Texas, Appellee, files this brief in support of the trial

court’s judgment and would respectfully show the Court the following.

I.   STATEMENT REGARDING ORAL ARGUMENT

     The State of Texas requests oral argument because the issue

presented by this case (i.e., what are the elements of a surety’s defense


                                   -1-
based on the incarceration of the principal) is extremely important to bond

forfeiture jurisprudence in Texas and has yet to be directly considered by

any Texas court. The courts are not frequently called upon to address

issues considering bond forfeitures because the State does not have the

right to appeal adverse judgments in bond forfeiture suits. 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.

II.   STATEMENT OF FACTS

      On August 29, 2013, Brian 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 when this case was




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


                                     -2-
called for trial.3 Thereafter, Mr. Whipple’s name was called distinctly at

the door of the courthouse and he was given a reasonable time after which

to appear. 4 Brian Whipple, however, failed to appear and the bail bond

was forfeited.5

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

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

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. 6 Mr. Benson did not allege that Mr. Whipple was ever

returned to Travis County.

      On December 4, 2014, Plaintiff’s Motion for Summary Judgment was

filed and set for hearing on January 21, 2015. 7 In response, Mr. Benson

asked the court to deny the motion, claiming he had raised a fact issue on

each element of his defense based on article 22.13(a)(5)(A) of the Texas

Code of Criminal Procedure. Mr. Benson asserted that these elements are


3     CR 4.
4     CR 4.
5     CR 4.
6     CR 14.
7     CR 9-13.


                                   -3-
incarceration of the principal within any jurisdiction in the United States

within 180 days from the failure to appear on a misdemeanor charge.8

       The trial court granted the State’s motion and rendered judgment

against Brian Whipple and Tom Benson for the full amount of the bond

($5,000.00) plus court costs.9

III.   SUMMARY OF THE ARGUMENT

       The elements of the exoneration defense under article 22.13(a)(5)(A)

are not, as Tom Benson asserts, simply that a person charged with a

misdemeanor is incarcerated in any jurisdiction in the United States within

180 days after the principal’s failure to appear. Another element, found in

article 22.13(b), is that the principal must return to the county in which the

misdemeanor case is pending. Since Mr. Benson did not provide the trial

court with any evidence that Mr. Whipple returned to Travis County after

his failure to appear, the trial court was right to grant summary judgment

for the State.




8      CR 16-23.
9      CR 24-25.


                                     -4-
IV.   ARGUMENT

      A.    Standard of Review and the Applicable Law

      Bond forfeiture suits, while criminal in nature, are subject to the rules

of civil procedure and the rules of civil appellate procedure. Tex. Code

Crim. Proc. articles 22.10, 44.42 and 44.44. Kubosh v. State, 177 S.W.3d 156,

160 (Tex. App.−Houston [1st Dist.] 2005, pet. ref’d); Mendez v. State, No. 03-

12-00200-CV, 2013 Tex. App. LEXIS 13278, *3, 2013 WL 5914142, *2 (Tex.

App.−Austin Oct. 25, 2013, no pet.) (mem. op.). The standard for reviewing

a traditional summary judgment, which is what the State obtained in this

case, is whether the movant carried its burden of showing there is no

genuine issue of material fact and judgment should be granted as a matter

of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690

S.W.2d 546, 548-49 (Tex. 1985).

      In order to be entitled to a forfeiture of a bail bond, the State has the

burden to show that (1) a valid bond was executed by the principal and

surety; (2) the principal’s name was distinctly called at the courthouse

door; and (3) the principal failed to appear within a reasonable time of that

call. Burns v. State, 861 S.W.2d 878, 888 (Tex. Crim. App. 1993). The bond

establishes the first element of the State’s bond forfeiture suit and the


                                      -5-
Judgment Nisi is prima facie proof of the second and third elements. Burns

v. State, 861 S.W.2d at 887. Attached to the State’s motion were certified

copies of the bond and the Judgment Nisi. Thus, the State established as a

matter of law that there are no genuine issues of material fact as to any of

the elements of the State’s cause of action, as Mr. Benson admits. 10

      Thus, to avoid a summary judgment, Mr. Benson was required to

present summary judgment evidence sufficient to raise an issue of fact on

each element of his defense. KPMG Peat Marwick v. Harrison County Housing

Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999).

      B.     Tom Benson did not present any evidence that Brian Whipple
             returned to Travis County after his failure to appear

      To determine whether Tom Benson met his burden to defeat the

State’s summary judgment, the Court must first determine what are the

elements of his defense. Tom Benson pleaded a defense based on article

22.13(a)(5)(A) of the Texas Code of Criminal Procedure, which provides:

      (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:


10    Appellant’s Brief at p. 5.


                                      -6-
                   (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[.]

Tex. Code Crim. Proc. article 22.13(a)(5)(A).

      Mr. Benson argues that the elements of this defense are that Mr.

Whipple was charged with a misdemeanor and that he was incarcerated in

any jurisdiction in the United States within 180 days from his failure to

appear in court. However, there is another element to this defense: the

principal must be returned to the county of prosecution. This element is

found not in article 22.13(a)(5)(A), but in article 22.13(b), which provides:

      (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. article 22.13(b) (emphasis added).

When read together, these provisions limit a surety’s liability if the

principle, who is charged with a misdemeanor, is incarcerated within 180

days of his failure to appear and is returned to the county of prosecution.

      While no court has directly delineated the elements of this defense,

the Texas Court of Criminal Appeals has provided guidance on this issue

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


                                      -7-
2008). The main issue in Safety National was whether article 22.13(a)(5)

violates the separation of powers provision in the Texas Constitution.11

However, in its attempt to convince the Court that article 22.13(a)(5) can

work an unjust result, the State intimated “that Article 22.13(a)(5) is

triggered by the defendant’s incarceration, whether or not he is returned,

and the he will be exonerated without ever appearing in court[.]”Safety

National Casualty Corp. v. State, 273 S.W.3d at 163. The Court found this

reading of article 22.13(a)(5) “simply incorrect,” because article 22.13(a)(5)

is limited to those situations where the principal’s return to the county of

prosecution is certain. Id.

11      The State argued that article 22.13.(a)(5) is 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
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.


                                             -8-
       Also instructive to the determination of the elements of this defense

are the Legislature’s reasons for adding subsections (a)(5) and (b) to article

22.13 in 2003:

       . . . 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 at 162-63

(emphasis added).

       In these few words, the Legislature encapsulates the role of article

22.13(a)(5) in fulfilling the primary purpose of a bail bond, which is to

ensure that the principal will appear and answer the charges brought

against him or her. 12 This purpose is not abrogated by the principal’s




12      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). 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


                                             -9-
failure to appear; the State would still rather have the principal appear than

collect on a forfeited bond, as the Legislature noted above. 13 Indeed, the

presence of a bail bond encourages 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 principal’s return is, of course, important to the State so that the

criminal case against the principal can be resolved. To help fulfill this

purpose, the Legislature, in articles 22.13(a)(5) and (b), has given the surety

financial incentive to bring the principal back to court after the principal’s

failure to appear – and the quicker the better for the surety. 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.

      The incarceration exoneration under article 22.13(a)(5) is but one of

several mechanisms available to the surety to minimize its bond forfeiture

liability. Like article 22.13(a)(5), most of these contemplate the return of the


promise by the principal and surety promise that the principal will appear before the
proper court to answer the accusation against him).
13    See also, 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).


                                         -10-
principal to the county of prosecution.14 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). However, 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).

      Additionally, 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 return of the principal.” Tex. Code

Crim. Proc. art. 22.16(a). This same reduction of liability can also be given


14      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)).


                                           -11-
to the surety by the court “for other good cause shown.” Tex. Code Crim.

Proc. art. 22.16(b).15 By retaining the surety’s liability for return costs, both

provisions contemplate the return of the principal.

      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,

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



15     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”).


                                         -12-
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 did 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

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.

                                      -13-
IV.   PRAYER

      The State established as a matter of law that Brian Whipple and Tom

Benson made a $5,000.00 appearance bond, which forfeited after Mr.

Whipple failed to appear in the court in which his misdemeanor case is

pending. Tom Benson does not dispute these facts. Instead, he tried to

defeat summary judgment by providing evidence that Brian Whipple was

arrested in Nevada within 180 days of his failure to appear in the Travis

County misdemeanor case. However, this defense is limited to those

situations where the principal is returned to the county of prosecution.

Since Tom Benson did not provide the trial court any evidence that Mr.

Whipple ever returned to Travis County after the bond forfeited, the trial

court correctly rendered summary judgment in favor of the State.

      Accordingly, the State of Texas respectfully requests that this Court

affirm the judgment of the trial court.

                              Respectfully submitted,

                              DAVID A. ESCAMILLA
                              TRAVIS COUNTY ATTORNEY

                              By:   /s/ Tim Labadie
                                    Tim Labadie
                                    Assistant Travis County Attorney
                                    State Bar No. 11784853


                                     -14-
                                   P.O. Box 1748
                                   Austin, Texas 78767
                                   (512) 854-5864
                                   (512) 854-9316 (fax)
                                   tim.labadie@traviscountytx.gov

                             Attorneys for the State of Texas, Appellee

                       CERTIFICATE OF COMPLIANCE

       By my signature below, pursuant to Tex. R. App. P. 9.4(i)(3), I hereby
certify that the foregoing Appellee’s Brief contains 3,163 words 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 May 29, 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




                                    -15-
APPENDIX
            Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)




            ARMADILLO BAIL BONDS, Appellant v. THE STATE
                       OF TEXAS, Appellee

                                       No. 1049-89

                 COURT OF CRIMINAL APPEALS OF TEXAS

                 802 S.W.2d 237; 1990 Tex. Crim. App. LEXIS 198

                             December 5, 1990, Delivered

PRIOR HISTORY:           [**1] Petition             In this criminal bail bond forfeiture
for Discretionary Review from the Fifth         case, we granted Armadillo Bail Bonds'
Court of Appeals; Dallas County.                petition for discretionary review,
                                                pursuant to Texas Rule of Appellate
COUNSEL: Attorneys for appellant: G.            Procedure 200(c)(4), in order to
P. (Pat) Monks, Houston, Texas, Randy           determine whether Article 22.16(c)(2) of
Adler, Dallas, Texas.                           the Texas Code of Criminal Procedure
                                                violates the separation of powers
Attorneys for State: John Vance, D. A.          provision of the Texas Constitution. See
& Alec B. Stevenson, III & Michael J.           Tex. Const. art. 2, § 1. Having found the
Watts, Asst. D. A's., Dallas, Texas,            statute unconstitutional, we will affirm
Robert Huttash, State's Attorney, Austin,       the judgment of the court of appeals.
Texas.
                                                    Alejandro de Jesus Carreon, charged
JUDGES: En Banc. Campbell, Judge.               in Dallas County with a felony, failed to
Judges Teague & Miller dissent without          appear for trial on November 19, 1987.
opinion. Sturns, Judge not participating.       On that date the trial court rendered
                                                judgment nisi for the State [**2] and
OPINION BY: CAMPBELL                            against de Jesus Carreon and his surety,
                                                Armadillo Bail Bonds, jointly and
OPINION                                         severally, in the amount of de Jesus
                                                Carreon's bond. Nine months later, on
   [*238]      OPINION                 ON       August 15, 1988, at a hearing before the
APPELLANT'S   PETITION                FOR       trial court, Armadillo was given an
DISCRETIONARY REVIEW                            opportunity to show good cause for de
                                                Jesus Carreon's failure to appear for
             Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)



trial. No such cause was shown, and the              A proper understanding of the issue
judgment of forfeiture was made final            presented requires an examination of the
the next day. Armadillo then moved for           complete text of Article 22.16(a) and
a new trial on the basis of Tex. Code            (c):
Crim. Pro. art. 22.16(c)(2), which                  (a) After forfeiture of a bond and
provides that "[a] final judgment may be         before the expiration of the time limits
entered against a bond not earlier than . .      set by Subsection (c) of this article the
. 18 months after the date the forfeiture        court shall, on written motion, remit to
was entered, if the offense for which the        the surety the amount of the bond after
bond was given is a felony." Armadillo's         deducting the costs of court, any
motion for new trial was denied, and the         reasonable costs to the county for the
Fifth Court of Appeals affirmed on the           return of the principal, and the interest
ground that Article 22.16(c)(2) is invalid       accrued on the bond amount . . . if:
under      the    Texas     Constitution's
separation     of    powers     provision.          (1) the principal is incarcerated in the
Armadillo Bail Bonds v. State, 772               county in which the prosecution is
S.W.2d 193 (Tex.App. -- Dallas 1989).            pending;
    In its petition for discretionary               (2) the principal is incarcerated in
review, Armadillo contends that Article          another jurisdiction and [**4]      the
22.16(c)(2) "is a valid enactment of law         incarceration is verified . . .;
to regulate the trial court's . . . power to        (3) the principal is released on new
grant [a] certain type of relief, a final        bail in the case;
judgment." Appellant's [**3] Brief at
                                                    (4) the principal is deceased; or
18. Armadillo argues further that the
statute is constitutional because it "does          (5) the case for which bond was
not prevent the courts from managing             given is dismissed.
their affairs . . .; it only controls the type      ***
of relief a court can grant at certain
times." Appellant's Brief at 12. The State          (c) A final judgment may be entered
responds that "by ordering trial courts          against a bond not earlier than:
not to enter bond forfeiture judgments               [*239] (1) nine months after the
until the expiration of . . . eighteen           date the forfeiture was entered, if the
months in a felony case, . . ., the              offense for which the bond was given is
legislature is usurping a judicial               a misdemeanor; or
function. This is certainly violative of            (2) 18 months after the date the
[the separation of powers provision] of          forfeiture was entered, if the offense for
the Texas Constitution." State's Brief at        which the bond was given is a felony.
7.
                                                    (Emphasis added.)
            Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)



    It seems probable that Article              others, except in the instances herein
22.16(c), enacted in 1987, resulted from        expressly permitted.
our decision in Williams v. State, 707              This separation of powers provision
S.W.2d 40 (Tex.Cr.App. 1986). 1 In              reflects a belief on the part of those who
Williams we held unconstitutional a             drafted and adopted our state
statute that entitled the surety to an          constitution that one of the greatest
automatic ninety-five percent remittitur        threats to liberty is the accumulation of
if the defendant appeared within two            excessive power in a single branch of
years after a final judgment and the            government. The provision also has the
surety claimed responsibility for the           [**6] incidental effect of promoting
return. We concluded that the automatic         effective government by assigning
remittitur    provision   impermissibly         functions to the branches that are best
interfered with judicial power by               suited to discharge them. See H. Bruff,
requiring the modification of a final           Separation of Powers Under the Texas
judgment. It appears the Legislature has        Constitution, 68 Texas L. Rev. 1337,
tried to circumvent the Williams holding        1341 (1990).
by denying the courts the authority to
[**5] render a final judgment for a set             We have held repeatedly that the
period of time.                                 separation of powers provision may be
                                                violated in either of two ways. First, it is
     1 See Senate Comm. on Crim.                violated when one branch of government
     Juris., Bill Analysis, Tex. S.B. 185,      assumes, or is delegated, to whatever
     70th Leg., R.S. (1987) (discussing         degree, a power that is more "properly
     Williams v. State, 707 S.W.2d 40           attached" to another branch. Ex parte
     (Tex.Cr.App. 1986)).                       Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.
                                                1973). The provision is also violated
  Article 2, § 1          of   the   Texas      when one branch unduly interferes with
Constitution provides:                          another branch so that the other branch
   The powers of the Government of the          cannot      effectively    exercise      its
State of Texas shall be divided into three      constitutionally assigned powers. Rose
distinct departments, each of which shall       v. State, 752 S.W.2d 529, 535
be confided to a separate body of               (Tex.Cr.App. 1987); Meshell v. State,
magistracy, to wit: Those which are             739 S.W.2d 246, 252 (Tex.Cr.App.
Legislative to one, those which are             1987); see 16 C.J.S. Constitutional Law
Executive to another, and those which           § 112 (1984). The undue interference
are Judicial to another; and no person, or      test
collection of persons, being of one of             takes the middle ground between
these departments, shall exercise any           those    who    would   seek   rigid
power properly attached to either of the        compartmentalization and those who
            Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)



would find no separation of powers              explicitly grants the Legislature ultimate
violation until one branch completely           authority over judicial "administration,"
disrupted another branch's ability to           Tex. Const. art. 5, § 31; Meshell v. State,
function.            The             rigid      739 S.W.2d at 255, although this
compartmentalization [**7]         theory       authority does not permit the Legislature
undermines       the    efficiency      of      "to infringe upon the substantive power
government and undervalues the                  of the Judicial department under the
availability of checks and balances. The        guise of establishing 'rules of court,' thus
other extreme looks only for the                rendering the separation of powers
completed coup and underestimates the           doctrine meaningless." Meshell v. State,
incremental effect of interbranch               739 S.W.2d at 255. Given these
intrusions.                                     constitutional provisions, it is no simple
  N. McCabe, Four Faces of State                task to determine whether any given
Constitutional Separation of Powers:            legislative action that affects the
                                                exercise of judicial power is a violation
   Challenges to Speedy Trial and               of the separation of powers provision.
Speedy Disposition Provisions, 62
Temple L. Rev. 177, 218 (1989).                    Helpful to our inquiry in this case, we
                                                believe, is the Montana Supreme Court's
   The State argues, and the court of           decision in Coate v. Omholt, 203 Mont.
appeals held in effect, that Article            488, 662 P.2d 591 (Mont. 1983). There,
22.16(c)(2) unduly interferes with the          the court held unconstitutional, as
courts' exercise of the "judicial" power.       violations of the separation of powers
Our inquiry must begin, then, with the          principle, two Montana statutes that
nature of this power and the extent to          placed time limits on district and
which the Legislature may inject itself         supreme court cases and imposed
into this arena.                                financial sanctions on judges for failure
   The Texas Constitution explicitly            to comply. Although the facts of Omholt
vests the judicial power of the state in        are different from those in the case
the courts. Tex. Const. art. 5, § 1. The        before us today, we believe the
core of this judicial power embraces the        reasoning of the decision is instructive
power (1) to hear evidence; (2) to decide       and sound:
the issues [*240] of fact raised by the             . . . We [**9] conclude that, based
pleadings; (3) to decide the relevant           on the separation of powers clause of
questions of law; (4) to enter a final          our state constitution, the question of
judgment on the facts and the law; and          when cases shall be decided and the
(5) to execute the final judgment or            manner in which they shall be decided,
sentence. Kelley v. State, 676 S.W.2d           is a matter solely for the judicial branch
104, 107 (Tex.Cr.App. 1984). On the             of government.
other hand, the constitution [**8]
             Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)



   ***                                           realm of judicial affairs as to dictate to a
   By [the separation of powers]                 judge how he shall judge or how he shall
provision, each branch of government is          comport himself in judging or which
made       equal,     coordinate,     and        seeks to surround the act of judging with
independent. By this we do not mean              hampering conditions clearly offends the
absolute      independence        because        constitutional scheme of the separation
"absolute independence" cannot exist in          of powers and will be held invalid."
our form of government. It does mean,               The courts have recognized, as the
however, ". . . that the powers properly         authors state, that certain judicial
belonging to one department shall not be         functions require that the courts alone
exercised by either of the others." With         determine how those functions are to be
only one exception ( State ex rel.               exercised. Even assuming the right
Emerald People's Util. v. Joseph (Ore.           under many state constitutions, and
1982), 292 Or. 357, 640 P.2d 1011), the          indeed, the need for the legislature to be
supreme courts of those states called on         involved in rule-making where the
to answer the question have declared             courts and the legislature have
that the essential nature of a                   concurrent rule-making power, the
constitutional court encompasses the             authors state:
right to determine when a judicial                   "Grant the necessity for concurrent
decision will be made.                           jurisdiction in the field of procedure,
   These holdings are best summarized            immediately another problem presents
in a law review article entitled,                itself. Should [**11] there not be some
Legislative Control Over Judicial Rule-          realm of judicial administration entirely
Making: A Problem in Constitutional              free from legislative supervision? Or
Revision (1958), 107 U. Pa. L. Rev. 1,           shall the legislature be permitted to
31-32:                                           dictate to the courts every detail of their
    "What the holdings do suggest is that        internal regimen: command appellate
there is a third realm of judicial activity,     courts to issue written opinions in every
[**10] neither substantive nor adjective         case, declare within what time cases
law, a realm of 'proceedings which are           shall be heard, [*241] deny to the court
so vital to the efficient functioning of a       the power to issue its mandate until a
court as to be beyond legislative power.         prescribed period of time after judgment
'This is the area of minimum functional          shall have passed? There are spheres of
integrity of the courts, 'what is essential      activity so fundamental and so necessary
to the existence, dignity and functions of       to a court so inherent in its very nature
the court as a constitutional tribunal and       as a court, that to divest it of its absolute
from the very fact that it is a court.' Any      command within these spheres is to
statute which moves so far into this             make meaningless the very phrase
            Armadillo Bail Bonds. v State, 802 S.W.2d 237 (Tex. Crim. App. 1990)



judicial power." 107 U. Pa. L. Rev. at          separation      of    powers      principle
29-30.                                          necessarily contemplates a zone of
   662 P.2d at 594 (emphasis in                 judicial power which must be free of
original; some citations omitted). See          legislative interference. 2 The question in
also Sands v. Albert Pike Motor Hotel,          each case is whether the legislation in
245 Ark. 755, 434 S.W.2d 288 (Ark.              issue is grounded on the Legislature's
1968); Holliman v. State, 175 Ga. 232,          own constitutionally assigned power
165 S.E. 11 (Ga. 1932); Waite v.                and, if so, whether the legislation
Burgess, 69 Nev. 230, 245 P.2d 994              nevertheless unduly interferes, or [**13]
(Nev. 1952); Schario v. State, 105 Ohio         threatens to unduly interfere, with the
St. 535, 138 N.E. 63 (Ohio 1922);               Judiciary's effective exercise of its
Complaint Against Grady, 118 Wis. 2d            constitutionally assigned power, and we
762, 348 N.W.2d 559 (Wis. 1984) (all            so hold.
cases holding legislature may not dictate
to judiciary when [**12] or how cases                 2 We should not be understood to
shall be decided).                                    approve the court of appeals'
                                                      sweeping statement that "a statute
    Article 22.16(c)(2) requires that the             which requires the judicial branch
Judiciary refrain from exercising a part              to act or refrain from acting within
of its core power for a period of a year              a specified time is [always]
and a half. If this requirement is, as                unconstitutional as an unwarranted
Armadillo argues, a valid exercise of the             encroachment by the legislative
Legislature's power over judicial                     branch upon the prerogatives and
administration, then, as the court of                 functions of the judiciary." 772
appeals noted, "nothing prevents the                  S.W.2d at 196. There are many
legislature     from      imposing      an            instances where the Legislature
interminable delay in obtaining final                 may pass legislation that affects in
judgment." 772 S.W.2d at 197 (emphasis                some way how or when judicial
added). In other words, if Article                    power may be exercised.
22.16(c)(2) is valid, then the Legislature
has the power to render the Judiciary               In our view, Article 22.16(c)(2)
impotent with respect to the entry of           unduly interferes with the Judiciary's
final judgments.                                effective exercise of its constitutionally
                                                assigned power. We hold, therefore, that
   We adhere to our holdings in Meshell         the statute is invalid under Article 2, § 1
and Williams that the Legislature may           of the Texas Constitution. The judgment
not unduly interfere with the judicial          of the court of appeals is affirmed.
function under the guise of establishing
rules of court. We also agree with the             Teague and Miller dissent without an
Omholt court's reasoning that the               opinion.
                  Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)




             JOHN BURNS, Appellant v. THE STATE OF TEXAS,
                               Appellee

                                     No. 1111-91

                COURT OF CRIMINAL APPEALS OF TEXAS

                861 S.W.2d 878; 1993 Tex. Crim. App. LEXIS 129


                              June 23, 1993, Delivered

SUBSEQUENT HISTORY:                 [**1]
861 S.W.2d 878 at 886.                        OPINION BY: MILLER

PRIOR HISTORY:            Petition for        OPINION
Discretionary   Review     from    the
Fourteenth Court of Appeals. [HARRIS          [*886] OPINION ON STATE'S
County]                                       MOTION FOR REHEARING
   Original Opinion of December 23,               This appeal arose from a bond
1992, Reported at: 1992 Tex. Crim. App.       forfeiture. The trial judge granted
LEXIS 248.                                    summary judgment in favor of the State,
                                              and the surety, John Burns, appealed. 1
                                              In the court of appeals, appellant raised
COUNSEL: For Appellant: Stanley G.            nine points of error which the court
Schneider, Houston, Tx. W. Troy               overruled, and the judgment was
McKinney, Houston, Tx.                        affirmed. Burns v. State, 814 S.W.2d
                                              768 (Tex.App. - Houston [14th Dist.]
For Appellee: John B. Holmes, Jr., D. A.      1991). This Court granted appellant's
& Kathleen A. B. Braddock & Mark A.           petition for discretionary review on the
Font, Asst. D. A's., Houston, Tx. Robert      two grounds presented therein, to-wit:
Huttash, State's Attorney, Austin, Tx.        (1) "whether the court of appeals used
                                              the proper standard of review by failing
JUDGES: En Banc. Miller, Judge,               to review the evidence [**2] in the light
McCormick, Presiding Judge &                  most favorable to appellant[,]" and (2)
Overstreet, Judge, concur in the result       "whether a bond may be forfeited due to
                   Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)



a principal's failure to appear in court on    addresses summary judgment, so we
a certain date absent proof of notice to       find it useful to consult decisions from
the principal that he is to appear in court    our sister court on this standard. The
on that date when the principal has            purpose of the summary judgment rule is
previously been ordered to appear at a         to provide a method of summarily
date after the date on which the               terminating a case when it clearly
judgment nisi issued."                         appears that only a question of law is
                                               involved and that no genuine issue of
     1     The principal in this cause,        fact remains. Gaines v. Hamman, 163
     Pedro Alvarez, is not a party to this     Tex. 618, 358 S.W.2d 557, 563 (Tex.
     appeal.                                   1962). The issue in a summary judgment
    On original submission, we found a         proceeding, therefore, is whether there is
substantial material fact regarding notice     a genuine issue of fact in the case. Id. at
was presented which defeated summary           562. The party moving for summary
judgment, and we therefore sustained           judgment has the burden of showing that
appellant's second ground for review.          there is no such fact question and that he
Alvarez & Burns v. State,         S.W.2d       is entitled [**4] to judgment as a matter
(Tex.Crim.App. No. 1111-91, delivered          of law. Nixon v. Mr. Property
December 23, 1992), slip op. at p. 8. 2 In     Management Company, Inc, 690 S.W.2d
its motion for rehearing, the State            546, 548 (Tex. 1985). In deciding
presents three reasons why this Court          whether there is a disputed material fact
erred in finding a substantial material        issue precluding summary judgment, the
[*887]      fact was presented which           court takes as true the evidence
defeated summary judgment. The State           favorable to the non-moving party. Id.
alleges the opinion omits a material fact,     at 548-49. Every reasonable inference
omits and improperly recites [**3] the         from the evidence must be indulged in
law applicable to summary judgment             favor of the non-movant, and any doubts
cases, and improperly applies the law to       resolved in its favor. Id. at 549. See also
the facts.                                     Montgomery v. Kennedy, 669 S.W.2d
                                               309 (Tex. 1984); City of Houston v.
     2     Finding merit in appellant's        Clear Creek Basin Authority, 589
     second ground for review, we did          S.W.2d 671 (Tex. 1979). Hence, the
     not address his first ground for          applicable standard of review is to view
     review. Id. at p. 9.                      the evidence in the light most favorable
                                               to the party opposing the summary
   In order to address the State's             judgment motion. Gaines v. Hamman,
contentions we must first articulate the       358 S.W.2d at 562. 3
appropriate standard of review in a
summary judgment case. Rule 116a of
the Texas Rules of Civil Procedure
                   Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)



     3 In his first ground for review in             shown why the defendant did
     his petition, appellant contended               not appear.
     the court of appeals utilized an
     incorrect standard of review and
     viewed the evidence in the light          It is well-settled that the State's proof in
     most favorable to the movant,             a bond forfeiture proceeding consists of
     rather than the non-movant. Given         the bond and the judicial declaration of
     our disposition of this motion for        the forfeiture of the bond, which is the
     rehearing, we express no opinion          judgment nisi. Tocher v. State, 517
     on the merits of this ground for          S.W.2d 299, 301 (Tex.Crim.App. 1975).
     review, but only note that this is        The judgment nisi is prima facie proof
     the proper standard to apply.             that the statutory requirements of Art.
    [**5] We now review the elements           22.02 have been satisfied. Id. The [**6]
of the State's cause of action in a bond       burden then shifts to the defendant to
forfeiture from which this summary             affirmatively show otherwise. Id.
judgment action arose. Bond forfeiture,        Indeed, "the court will presume that the
although in the nature of a civil              judgment nisi was taken in accordance
proceeding, 4 is governed by the Code of       with the statutory requirements, unless it
Criminal Procedure. Article 22.02              affirmatively appear otherwise." Id.,
directs the manner of taking a forfeiture      citing Thompson v. State, 31 Tex. 166
and provides in pertinent part:                (1868). In moving for summary
                                               judgment in an appearance bond
       The name of the defendant               forfeiture case, the State must therefore
     shall be called distinctly at the         establish as a matter of law that there are
     courthouse door, and if the               no genuine issues of material fact as to
     defendant does not appear                 any of the elements of the State's cause
     within a reasonable time after            of action, which are proved by the bond
     such call is made, judgment               and the judgment nisi. Deckard v. State,
     shall be entered that the State           615 S.W.2d 717, 718 (Tex.Crim.App.
     of Texas recover of the                   1981) (panel opinion).
     defendant the amount of
     money in which he is bound,                     4 See Art. 22.10, V.A.C.C.P.
     and of his sureties, if any, the              With this review in mind, we now
     amount of money in which                  address the merits of the State's motion
     they are respectively bound,              for rehearing which raises an issue
     which judgment shall state                regarding its burden of proof in this
     that the same will be made                case. In its motion, the State argues inter
     final, unless good cause be               alia that in our opinion on original
                                               submission we improperly assigned the
                   Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)



burden of proof in a summary judgment          forfeiture.    Art.    22.02    (emphasis
action     [*888]      on a bond [**7]         supplied). Thus, to be entitled to
forfeiture. In that opinion we stated:         forfeiture of a bond [**8] the State need
                                               only show (1) a valid bond; (2) that the
       Therefore, the fact issues              defendant's name was distinctly called at
     which must be proven in a                 the courthouse door; and (3) the
     motion       for     summary              defendant failed to appear within a
     judgment on a bond forfeiture             reasonable time of that call. At the risk
     are: (1) a valid bond executed            of being redundant, we reiterate that the
     by the surety (Article                    burden of proof on the second and third
     17.08(5)); (2) failure of a               prongs is satisfied by the judgment nisi.
     defendant bound by bail to                    Article 22.02 further provides that
     appear in a court in which his            this judgment will be made final unless
     case is pending when his                  "good cause be shown why the
     personal      appearance     is           defendant did not appear." This proviso
     required under the Code                   operates like an affirmative defense in
     (Article 22.01); (3) the name             that the defendant admits he failed to
     of the defendant shall have               appear but asserts he has good cause
     been called distinctly at the             which excuses his failure to do so. This
     courthouse door (Article                  burden is appropriately placed on the
     22.02); and (4) no valid                  defendant.
     reason for the principal not
     appearing (Article 22.13).                   The court of appeals, relying upon
                                               Lopez v. State, 678 S.W.2d 197
                                               (Tex.App. - San Antonio 1984, no pet.),
Alvarez & Burns, slip op. at p 3; see also     recognized that there are only four fact
Burns, 814 S.W.2d at 770. The State            issues in a motion for summary
contends this fourth issue is not a fact       judgment on a bond forfeiture. See
which it must prove in a bond forfeiture       Burns, 814 S.W.2d at 770. Those issues,
proceeding. A plain reading of Art.            per Art. 22.02, are: whether there is a
22.02, along with the Tocher decision,         valid bond; whether the principal's name
reveals the State is correct.                  was called at the courthouse door;
                                               whether the principal failed to appear;
    Article 22.02 directs that the             and whether the principal had a valid
defendant's name be called "distinctly"        reason for not appearing. While there are
at the courthouse door. The defendant is       four [**9] fact issues under Art. 22.02,
given a "reasonable time after such call       the State bears only the burden of proof
is made" in which to appear. Upon his          on three of them. As the State points out
failure to do so, "judgment shall be           in its motion for rehearing, this Court
entered" for the State on the bond             "inexplicably" stated these issues as the
                   Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)



State's burden of proof in our opinion on            and his surety from liability upon
original submission. See Alvarez &                   the forfeiture taken. Allegedly
Burns, slip op. at p. 4. We therefore                germane to this cause is section (3)
sustain the State's ground for rehearing             which provides:
on this burden of proof issue.
    In his second ground for review in                       The sickness of the
his petition, appellant contended the                      principal     or    some
State failed to establish as a matter of                   uncontrollable
law that the principal had notice of the                   circumstance       which
court setting and "that the summary                        prevented              his
judgment evidence created a substantial                    appearance at court, and
and genuine issue of material fact                         it must, in every such
concerning notice to the principal, thus                   case, be shown that his
precluding summary judgment." On                           failure to appear arose
original submission we agreed with                         from no fault on his part.
appellant and concluded "the amended                       The causes mentioned in
affidavits of the principal's attorney and                 this subdivision shall not
the affidavit of the surety which present                  be deemed sufficient to
evidence that the principal did not                        exonerate the principal
receive notice of the setting raises (sic)                 and his sureties, is any,
material      facts     reflecting      the                unless such principal
contradiction and inconsistency of the                     appear before final
principal's lack of notice to defeat                       judgment on the bond to
summary judgment." Id., slip op. at p. 8.                  answer the accusation
In its motion for rehearing, the State                     against him, or show
argues that we misapplied the law to the                   sufficient cause for not
facts. [**10] The State asserts that the                   so appearing.
dispositive issue before this Court is
whether the appellant, as non-movant,
presented summary judgment evidence                  Pursuant to the express terms of
on every element of his defense, viz: his            Art. 22.13, to controvert the State's
failure to appear was due to an                      prima facie proof, appellant must
uncontrollable circumstance pursuant to              show (1) that some uncontrollable
Art. 22.13, V.A.C.C.P. 5 We disagree                 circumstance       prevented       the
with the State's argument.                           principal's appearance at court, (2)
                                                     that the principal's failure to appear
     5      Article 22.13, V.A.C.C.P.,               arose from no fault on his part, and
     provides an exclusive list of causes            (3) that the principal appeared
     which will exonerate the principal              before final judgment on the bond
                   Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)



     to answer the accusation against          summary judgment boils down to the
     him (or had sufficient cause for not      allegation . . . that it is entitled to
     so appearing).                            summary judgment 'as matter (sic) of
         In the motion for rehearing, the      law by virtue of the fact that no good
     State asserts pursuant to Art. 22.13      cause exists for the Defendant-
     that we omitted the fact that the         Principal's failure to appear.'" Appellant
     record is wholly void of any              then asserts in his response that there are
     evidence that, after forfeiture, the      genuine issues of material fact which
     principal appeared prior to               preclude the State's entitlement to
     judgment in the forfeiture case.          summary judgment, including lack of
     Hence the State argues that even          notice to appear. Nowhere in his
     though there may have been a lack         response (as opposed to his answer)
     of notice to appear, appellant has        does appellant assert he is entitled to
     failed to meet his burden of proof        exoneration of [**12] liability on the
     on this affirmative defense by not        bond forfeiture via Art. 22.13.
     presenting any evidence that, in the
     23 months between forfeiture and                6 See Burns, 814 S.W.2d at 770.
     judgment, he had been returned to               7 See Alvarez & Burns, slip op. at
     custody in Harris County. See                   p. 5.
     Fernandez v. State, 516 S.W.2d 677              8 Specifically, appellant filed an
     (Tex.Crim.App. 1974).                           original answer and two amended
                                                     answers.
    [**11]       [*889]      In spite of
statements in the court of appeals'                 In his brief in the court of appeals
opinion 6 and this Court's opinion on          appellant contended, inter alia, that the
original submission, 7 appellant has not       trial court erred in granting summary
raised or argued an "uncontrollable            judgment because a fact issue existed
circumstance" affirmative defense under        concerning notice to the principal to
Art. 22.13. The record reveals that            appear. Again, appellant did not argue
citation issued on April 15, 1988, on the      he was entitled to exoneration pursuant
bond forfeiture. See Art. 22.10.               to Art. 22.13. 9 In his petition for
Appellant filed an answer 8 generally          discretionary review before this Court,
denying the allegations and providing a        appellant contended lack of notice was a
laundry list of defenses, including            fact issue in this case but not under Art.
"[appellant] is entitled to be exonerated      22.13. Thus, the affirmative defense of
under the provisions of Article 22.13          an uncontrollable circumstance was not
T.C.C.P." The State then filed its motion      an issue before either the court of
for summary judgment. Appellant filed          appeals or this Court, and any statements
his reply in response to this motion           addressing that issue are dicta.
asserting "the State's entire motion for
                  Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993)



    9       Appellant's only argument         summary judgment. The State presented
    mentioning Art. 22.13 is in a             the bond and the judgment nisi to the
    constitutional             challenge.     trial court, thus making a prima facie
    Appellant's point of error states:        case for the bond forfeiture. Appellant
                                              presented evidence concerning a lack of
           The trial court erred in           notice to appear and providing good
         granting         summary             cause for his failure to appear. See Art.
         judgment because if no               22.02. On original submission we held
         actual notice is required,           the evidence raised a material fact issue
         TEX. CODE CRIM.                      and the trial judge erred in granting
         PROC. ANN. art. 17.09                summary judgment. In reviewing that
         (Vernon 1977), TEX.                  holding on this motion for rehearing, we
         CODE CRIM. PROC.                     conclude our decision was correct.
         ANN. art 22.13 (Vernon                  The State's motion for rehearing is
         1989), and the bond are              granted only to the extent that we
         void as unconstitutional             corrected our statement of the State's
         under the Fourteenth                 burden of proof in a [*890] bond
         Amendment        of    the           forfeiture case. See pp. 4-5, supra. The
         United              States           other grounds are denied.
         Constitution and Art. I,
         sec's. (sic) 13 and 19 of                Miller, J.
         the Texas Constitution.                  Delivered: June 23, 1993
                                                  En Banc
                                                 McCormick, PJ., and Overstreet, J.,
    [**13] The issue presented here is
                                              concur in result.
whether there is a material fact issue
regarding notice which would preclude
                   Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)




                      Ex Parte Thomas Reis Alias Tommy Reis.

                                         No. 14091

                  COURT OF CRIMINAL APPEALS OF TEXAS

               117 Tex. Crim. 123; 33 S.W.2d 435; 1930 Tex. Crim. App.
                                     LEXIS 948

                             December 17, 1930, Delivered

SUBSEQUENT HISTORY:                  [***1]      felony, bail was granted as in case of
Reported in 33 S.W.2d 435.                       ordinary offense, the court was
                                                 authorized at the same term of court
PRIOR HISTORY: Appeal from the                   during which the order granting bail was
District Court of Galveston County.              entered to set aside the order and relator
Tried below before the Hon. J. C. Canty,         was properly remanded to the custody of
Judge.                                           the sheriff.
    Habeas corpus proceeding on the                 Habeas Corpus.
relation of Thomas Reis, alias Tommy                 The court had the inherent power to
Reis, who, after a hearing, was                  deal with the person of relator in the
remanded to the custody of the sheriff.          manner manifested by the record, since
   Affirmed.                                     the purpose of a bail bond is not only to
                                                 effectuate the release from custody of a
DISPOSITION: Affirmed.                           person accused of crime, but "to secure
                                                 his presence in order that he may be
HEADNOTES                                        tried upon the charge against him."
   Habeas Corpus -- Bail.                           Habeas Corpus.
   Where indictment against relator,                 The court should not be deprived of
charging a capital offense, was handed           its authority to correct a mistake of the
to the judge with numerous other                 character of the one here presented
indictments charging ordinary felonies,          during the term at which the improper
and without hearing the evidence, under          order     was      entered    under     a
the mistaken belief that the offense             misapprehension of the true facts and
charged against relator was an ordinary          conditions.
                  Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)



                                                was returned, the sheriff released relator
COUNSEL: Marsene Johnson, Jr., of               on a bond in the sum of five hundred
Galveston, for appellant.                       dollars. The matter having been brought
                                                to the attention of the trial judge, the
Lloyd W. Davidson, State's Attorney, of         order fixing bond was vacated and an
Austin, for the State.                          alias capias issued upon which relator
                                                was arrested and incarcerated in jail. The
JUDGES: Christian, Judge.                       vacating order was entered at the same
                                                term of court at which the indictment
OPINION BY: CHRISTIAN                           had been returned, and during that term
                                                relator sought to be released, upon a
OPINION                                         hearing on a writ of habeas corpus,
    [*123]       [**436] CHRISTIAN,             under the bond he had theretofore
Judge. -- Upon a hearing on a writ of           executed in the sum of five hundred
habeas corpus before the district court of      dollars. The testimony adduced upon the
Galveston County, relator was remanded          hearing was uncontroverted to the effect
to the custody of the sheriff. Hence this       that relator entered the home of Mrs.
appeal.      [*124]     Relator is under        Carrie Moeller, exhibited a pistol, bound
indictment charging him with robbery            and gagged her, struck her on the head
with firearms, a capital offense. The           with the pistol and robbed her of two
indictment against him was returned into        thousand dollars.
court with numerous other indictments               It is relator's contention that the trial
charging ordinary felonies against              court was without authority to vacate the
various persons. As the indictments were        order granting bail, notwithstanding the
handed to the judge of the district court       fact that [***3] he acted upon a mistake
he was advised by the county attorney,          of fact at the time bail was granted. He
upon having made inquiry of him, that           relies upon the holding in the cases of
all of the indictments charged ordinary         Jenkins v. State, 45 Tex. Crim. 253, 76
felonies. It being the custom of the judge      S.W. 464, 77 S.W. 224, and the
to set the bond in cases of ordinary            announcement in Augustine v. State, 33
felony at five hundred dollars, he              Tex. Crim. 1, 23 S.W. 689. In the latter
indorsed [***2]         on each of the          case the accused was indicted for murder
indictments such sum as the amount to           on the 21st of December, 1876. On the
be required as bail. Among the                  29th of the same month the case was
indictments       upon      which      this     transferred to Bexar County. In
indorsement appeared was that charging          December, 1882, the accused was
relator with the offense of robbery with        admitted to bail in the sum of ten
firearms. Thereafter, during the same           thousand dollars on account of sickness
term of court at which the indictment           rendering it dangerous to longer confine
                  Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)



him. A month thereafter the prosecution         order granting bail. Contending that
was dismissed. In December, 1891, the           when the district court granted him bail
accused was re-indicted for the same            and the order thereof was spread of
murder and the venue changed to                 record, such order was final and
Gonzales County, the facts supporting           conclusive and became res adjudicata in
the charge being identical with those           all subsequent proceedings in the case,
upon which the first indictment had been        and that the district judge was without
returned. After the second indictment,          power or authority to vacate or withdraw
bail was refused. In reversing the              such order, Starritt filed an original
judgment and granting bail, the court,          [***5] action in the Supreme Court
speaking through Judge Davidson, held           praying for a writ of mandamus. It
that "when bail is once granted after           appears that the order granting bail was
indictment found, it is beyond the power        vacated at the same term of the court at
of the state to re-arrest for that offense,     which it was made. It was the State's
the right to bail being res adjudicata."        contention that the district judge had
Subsequently, in the case of Jenkins v.         jurisdiction to vacate, withdraw, or set
State, 45 [***4] Tex. Crim. 253, 76             aside the order, even upon his own
S.W. 464, Augustine's Case was cited in         motion and without notice, at the same
support of the rule in holding that when        term of the court at which the order was
bail is granted after indictment it is          made. In holding that the order granting
beyond the [*125] power of the trial            bail was res adjudicata and final as to the
judge to increase the amount thereof.           State, and that the district judge had no
Again, in Jenkins v. State, 77 S.W. 224,        authority to vacate it, it was said that the
the rule laid down in Augustine's Case          authorities supporting the right of the
was approved.                                   court to vacate or modify its own
    Looking to other jurisdictions, it is       judgments or orders were not applicable,
observed that the Supreme Court of              in that in such cases the court had under
Oklahoma, in the case of State ex rel.          consideration property interests of the
Starritt v. Newman, 114 Okla. 228, 245          parties rather than the liberties of the
P. 999, cited with approval the holding         citizens.
in the cases above discussed. Starritt was         It is unquestionably the rule in civil
incarcerated on a charge of murder.             cases that it is "within the power of the
Upon a proper application, he was               court at the same term, to revise or
granted bond in the sum of twenty-five          vacate any of its judgments, decrees, or
thousand      dollars.   Thereafter     he      orders." Gulf C. and S. F. Ry. Co. v.
presented a bond in said sum in due             Muse, District Judge, 109 Tex. 352, 207
form to the district judge, who declined        S.W. 897. [**437] Touching the power
to approve the bond, and entered an             of the court in such matters in criminal
order setting aside and withdrawing the         cases, we quote from Bishop's New
                   Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)



Criminal Procedure2d Ed., vol. 2, sec.           granting bail in a capital case during the
1298, as follows: [***6] "The power of           term of court at which the order was
the court to alter its docket entries and        entered, but concerned the power to
records during the term wherein they are         increase bail or deny bail after a proper
made, includes the right within such             order had been duly and legally entered
time to revise, correct and change its           fixing the amount of bond, or granting
sentences,          however         formally     bail.
pronounced, if nothing has been done                 Without approving the doctrine
under them. But steps taken under a              announced by the Supreme Court of
sentence, -- for example, a substantial          Missouri, in the case of The State v.
part execution thereof, -- will cut off the      Eyermann, 172 Mo. 294, 72 S.W. 539, it
right to alter it even during the term."         is observed that it was held that the court
   It is obvious that the power of the           had the power at any time during the
court in the respect mentioned in                term at which the accused was let to
criminal cases is not as broad as in civil       bail, to alter, amend, cancel, or set aside
cases. However, it is unnecessary at this        any order made with respect thereto,
time to discuss the limitations upon such        notwithstanding the accused may have
power.                                           complied with its order fixing his bond.
    The cases relied upon by relator are             Under our Constitution, bail is a
distinguishable upon the facts from the          matter of right, except in capital offenses
case at bar. As reflected by the record in       when the proof is evident. Section 11 of
such cases, no mistake [*126] entered            Art. 1, Constitution of Texas. In
into the order granting bail. It was             determining whether a capital offense is
granted upon a proper and legal order            bailable, the practice ordinarily pursued
duly entered after legal investigation and       in this state is to hear the evidence upon
proper exercise of discretion upon the           a writ of habeas [***8] corpus. Upon a
part of the judge. In the present case,          hearing the burden is upon the State to
being misinformed by the prosecuting             show that the accused is not entitled to
attorney as to the nature of the offense,        bail. Otherwise he is entitled to bail as a
the court granted bail in a capital case, in     matter of right. Ex parte Powell, 107
the absence of an agreement on the part          Tex. Crim. 648, 298 S.W. 575. Unless
of the State that the case was bailable,         the evidence heard by the court is clear
and without an examination upon [***7]           and strong, leading a well-guarded and
a writ of habeas corpus, or otherwise. In        dispassionate judgment to the conclusion
short, the record shows that there was no        that an offense has been committed, that
exercise of judicial discretion. The             the accused is the guilty agent, and that
question decided in the cases relied upon        he would probably be punished capitally
by relator was not related to the power          if the law is administered, bail is a
of the court to correct a mistake in             matter of right. Ex parte Alford, 97 Tex.
                   Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)



Crim. 410, 261 S.W. 1041. If the learned         contrary, the statute might be susceptible
trial judge had heard the evidence now           of the construction that it is only in cases
reflected by the record before he had            where bond has been granted after
granted bail in the sum of five hundred          investigation on habeas corpus that the
dollars he would have been fully                 accused is exempt from being again
warranted in reaching the conclusion             placed in custody for the same offense.
that the case was not bailable. If relator's        We quote from Corpus Juris, vol. 6,
contention be sustained, he is entitled to       page 952, as follows: "Upon admission
be enlarged on a bond in an amount               to bail the accused [***10] is regarded
generally required in cases of ordinary          as in the custody of his bail from the
felony, notwithstanding a mistake of fact        moment a bond or recognizance is
as to the character of the offense               executed until he is discharged or
prevented the exercise of proper                 recommitted; but he is also in the
discretion on the part of the court.             custody of the law, and it does not
   In prohibiting the re-arrest of one           deprive the court of its inherent power to
granted bail after indictment, the statute       deal with the person of the prisoner."
provides that in "cases where, [***9]                The purpose of a bail bond is not
after indictment is found the cause of the       only to effectuate the release from
defendant has been investigated on               custody of a person accused of crime,
habeas corpus, and an order made, either         but "to secure his presence in order that
remanding him to custody, or admitting           he may be tried upon the charge against
him to bail, he [*127] shall neither be          him." Tex. Jur., vol. 5, page 802. We
subject to be again placed in custody,           think the court had the inherent power to
unless when surrendered by his bail, nor         deal with the person of relator in
shall he be again entitled to the writ of        [**438] the manner manifested by the
habeas corpus, except in the special             record. In Ex parte Calloway, 98 Tex.
cases mentioned in this chapter." Article        Crim. 347, 265 S.W. 699, this court
169, C. C. P. We mention this for the            sustained the action of the trial court in
purpose of showing that it is the policy         raising the amount of bail theretofore
of the law that bail be not granted in           required after indictment in a felony less
capital cases until the facts have been          than capital on the ground that the
properly investigated. Intention to hold         accused had made threats that he would
that a proper agreement approved by the          not be tried and had failed to appear on
judge authorized to grant bail is invalid        several occasions, with the result that
is disclaimed. Nothing in the statute            several bonds had been forfeited. We
referred to can properly be construed to         think the principle upon which the
prevent the re-arrest of one indicted for a      decision rested relates to the inherent
capital offense under the facts                  power to deal with the person of the
manifested by this record. On the
                  Ex Parte Reis, 117 Tex. Crim. 123, 33 S.W. 2d 435 (1930)



accused in order to secure his presence             We have decided this case on its
at the trial.                                   merits without reference to the statute
   To deprive the court of the [***11]          (article 260, C. C. P.) under which the
authority to correct a mistake of the           cases relied upon by appellant seem to
nature in question during the term at           have been decided. The soundness of
which it was made would render it               such decisions is seriously questioned.
powerless to perform its constitutional            The judgment is affirmed.
and statutory functions. An inherent               Affirmed.
power would be destroyed. The
administration of justice would be                 [*128] The foregoing opinion of the
hampered, if not entirely defeated. We          Commission of Appeals has been
are constrained to hold that the action of      examined by the Judges of the Court of
the trial court should be sustained.            Criminal Appeals and approved by the
                                                Court.
                 Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)




                             Ex Parte Gilbert Vasquez

                                      No. 56,242

                      The Texas Court of Criminal Appeals

                558 S.W.2d 477; 1977 Tex. Crim. App. LEXIS 1290

                                    Nov. 30, 1977

PRIOR HISTORY:          [**1] Habeas          attempting to commit robbery. Bail was
Corpus Application from Bexar County          set at $100,000.
                                                  On August 9, 1977 appellant filed his
COUNSEL: For Appellant: Thomas                petition for writ of habeas corpus
Rocha, Jr. - San Antonio, TX                  seeking reduction of bail. A hearing on
                                              said petition was held on August 16,
For Appellee: Bill White, D.A. - San          1977, following which the court refused
Antonio, TX                                   to reduce bail.
OPINION BY: ONION                                 The twenty year old petitioner
                                              testified that he was in jail, that he was
OPINION                                       unable to make the amount of bond set,
                                              that he did not own any real estate, no
   [*478] Onion, Presiding Judge              stocks or bonds, had no money in the
   This appeal is taken from an order         bank and no cash anyplace. He related
entered in a habeas corpus proceeding in      he had a ten year old automobile, but he
the 227th District Court of Bexar County      gave it to "another lawyer" and that
refusing to reduce bail.                      [**2] it did not belong to him anymore.
   The record reflects that on August 3,      He testified he had made a $10,000 bond
1977 the appellant was indicted for           in an aggravated robbery case, 1/ and
capital murder. The said indictment           could possibly make a $10,000 bond in
charged that appellant intentionally and      [*479] the instant case. 2/ He told the
knowingly caused the death of Maria           court he was paying his lawyer $35 3/ a
Guajardo by shooting her with a gun           week on his fee, and if released could
while in the course of committing and         find a job with an uncle at $80 or $85 a
                                              week.
                 Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)



                                              Rodriquez, who had been running, the
     1        The aggravated robbery          court sustained the objection to further
     apparently grew out of the same          interrogation by the State.
     transaction as the instant case.             The State offered no evidence 4/ and
     2       The record is somewhat           at the conclusion of the hearing the court
     confusing on this fact. When asked       refused to reduce bail. In its findings the
     what kind of bond he, his family or      hearing the court refused to reduce bail.
     friends could make, petitioner           In its findings the court found, among
     answered:                                other things, that the petitioner had
       "A. I think that the same              failed to show he is financially unable to
     amount I had at first.                   make bond in the amount of $100,000.
        "Q.   Do you mean another             On the same date as the hearing the
     $10,000 or the same -- the original      petitioner filed a pauper's oath for the
     $10,000 bond?                            purposes of obtaining a record on appeal
                                              of the habeas corpus proceedings. The
        "A. The original $10,000."            court on the same date ordered the
        The witness was then passed.          transcription furnished without cost,
     3 The source of the $35 weekly           finding petitioner [**4] was a pauper.
     payments was not revealed.
                                                    4 The State has not filed a brief in
    Petitioner testified he did not have a
                                                    this cause.
pistol inside the grocery store and did
not shoot the deceased as alleged. On            Article 17.15, Vernon's Ann.C.C.P.,
cross-examination he acknowledged that        provides:
he drove co-defendant Magdalino                  "The amount of bail to be required in
Rodriquez [**3] to the grocery store,         any case is to be regulated by the court,
but stated he did not know Rodriquez          judge, magistrate or officer taking the
was going to shoot anyone, that he did        bail; they are to be governed in the
not give Rodriquez a gun, and that he         exercise of this discretion by the
did not wait for Rodriquez. He admitted       Constitution and by the following rules:
he later saw Rodriquez running several
blocks away from the store and inquired          "1. The bail shall be sufficiently high
as to his running, but Rodriquez "didn't      to give reasonable assurance that the
say nothing. He was afraid." Petitioner       undertaking will be complied with.
related that Rodriquez had no gun in his         "2. The power to require bail is not
hand and no bag with money in it. He          to be so used as to make it an instrument
denied splitting the money with               of oppression.
Rodriquez. When asked where he and
Rodriquez went after he picked up
                  Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)



    "3. The nature of the offense and the          The nature of the offense was shown
circumstances under which it was               to be capital murder (V.T.C.A., Penal
committed are to be considered.                [*480] Code, § 19.03), which carries a
    "4. The ability to make bail is to be      penalty of life imprisonment or death
regarded, and proof may be taken upon          (V.T.C.A., Penal Code, § 12.31). And
this point."                                   when considering the nature of the
                                               offense in setting bail, the punishment
   The burden of proof is on petitioner        permitted by law may be considered.
for reduction in bail to show that bail set    [**6] Ex parte Clark, supra; Ex parte
is excessive. Ex parte August, 552             Bufkin, 553 S.W.2d 116 (Tex.Cr.App.
S.W.2d 169 (Tex.Cr.App. 1977); Ex              1977). As to the circumstances under
parte Clark, 537 S.W.2d 40 (Tex.Cr.App.        which the offense was committed, there
1976); Holliman v. State, 485 S.W.2d           was also little evidence offered. While
912 (Tex.Cr.App. 1972).                        the return of an indictment establishes
   The primary [**5] object or purpose         probable cause as a matter of law, Ex
of an appearance bond is to secure the         parte Branch, 553 S.W.2d 380
presence of the defendant in court upon        (Tex.Cr.App. 1977); Ex parte Preston,
the trial of the accusation against him.       533 S.W.2d 820 (Tex.Cr.App. 1976); Ex
Fly v. State, 550 S.W.2d 684                   parte Sellers, 516 S.W.2d 665
(Tex.Cr.App. 1977); McConathy v. State,        (Tex.Cr.App. 1974); Ex parte White, 486
528 S.W.2d 594 (Tex.Cr.App. 1975).             S.W.2d 301 (Tex.Cr.App. 1972), the only
While bail should be sufficiently high to      testimony as to the circumstances under
give reasonable assurance that the             which the offense was committed came
undertaking will be complied with, the         from the petitioner. He denied his guilt
power to require bail is not to be used so     rf that he was implicated with
as to make it an instrument of                 Rodriquez, the apparent trigger man in
oppression. See Article 17.15(1) and (2),      the murder-robbery alleged. He did
supra; Ex parte Kerr, 549 S.W.2d 6             admit he drove Rodriquez to the grocery
(Tex.Cr.App. 1977); Ex parte Clark,            store and subsequently picked him up
supra.                                         several blocks from the store. He stated
                                               he did not know that Rodriquez had a
    The evidence was meager, but did
                                               gun or had shot anyone and denied he
show that petitioner's home was in San
                                               split the money with Rodriquez. From
Antonio and that he had a construction
                                               the evidence offered, it would appear
job with an uncle if he were to be
                                               that petitioner's criminal responsibility,
released on bail. There was nothing to
                                               if any, would fall under the provisions of
show that petitioner had a criminal
                                               V.T.C.A., Penal Code, § 7.01 and $7.02.
record and no showing as to whether or
not petitioner had a past history of              It appears to be undisputed that
failing to appear while on bond.               appellant was indigent, 5/ and while he
                 Ex Parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977)



indicated that [**7] he might be able to            undisputed. On the same date as
post a $10,000 bond, he did not reveal              the habeas corpus hearing the
how he would be able to do so.                      court, upon petitioner's affidavit,
Appellant's indigency is a circumstance             found the petitioner a pauper for
to be considered, but it is not a                   the purposes of appeal.
controlling circumstance nor the sole             When appellant's indigency is
criterion in determining the amount of        considered along with the nature of the
bail. Ex parte Sierra, 514 S.W.2d 760         offense and the only testimony as to the
(Tex.Cr.App. 1974); Ex parte Runo, 535        circumstances under which the offense
S.W.2d 188 (Tex.Cr.App. 1976); Ex             was committed which was offered, as
parte Clark, supra; Ex parte McClellan,       well as all other testimony introduced,
545 S.W.2d 483 (Tex.Cr.App. 1977); Ex         we conclude that the bail [**8] of
parte Kerr, supra.                            $100,000 was excessive. The power to
                                              require bail is not to be used as an
     5 While the trial court found that       instrument of oppression. Article 17.15,
     the petitioner had not shown he          supra; Ex parte Bufkin, supra. Bail is
     was financially unable to make a         reduced and set in the sum of $20,000.
     $100,000      bond,     appellant's
     testimony as to his indigency was            It is so ordered.
       Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)




           GRAMERCY INSURANCE CO. D/B/A BEXAR COUNTY
           BAIL BONDS, Appellant v. STATE OF TEXAS, Appellee

                              Appeal No. 04-91-00536-CV

           COURT OF APPEALS OF TEXAS, FOURTH DISTRICT,
                          SAN ANTONIO

                    834 S.W.2d 379; 1991 Tex. App. LEXIS 3287

                                 May 6, 1991, Delivered
                                  May 6, 1991, Filed

SUBSEQUENT HISTORY:                [**1]         Rainey, Becky, Assistant Criminal
Motion for Rehearing Denied July 6,              District Attorney, Bexar County Justice
1992. State's Petition for Discretionary         Center, 300 Dolorosa, San Antonio, TX
Review Refused November 25, 1992.                78205.

PRIOR HISTORY: Appeal from the                   JUDGES: Sitting: Alfonso Chapa,
227th District Court of Bexar County.            Justice, Fred Biery, Justice, Orlando
Trial Court Nos. 91-CI-07569 and 89-             Garcia, Justice
SF-0209. Honorable Mike Machado,
Judge Presiding.                                 OPINION BY: FRED BIERY

DISPOSITION:             AFFIRMED AS             OPINION
MODIFIED                                             [*380] OPINION
                                                    Opinion by: Fred Biery, Justice
COUNSEL:       ATTORNEYS     FOR                    Gramercy Insurance Co.         D/B/A
APPELLANT: Hitchings, Barry P.,                  Bexar County Bail Bonds, appellant,
HITCHINGS,        POLLOCK      &                 sought a remittitur from a bail bond
BERNARD, 512 Highland, Suite 200,                forfeiture final judgment in the amount
San Antonio, TX 78210.                           of $ 10,000. Notwithstanding the state's
                                                 election not to pursue a $ 10,000
ATTORNEYS OF APPELLEE: Hilbig,                   judgment on a separate and distinct $
Steven C., Criminal District Attorney,           10,000 personal recognizance bond
       Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)



signed by the same defendant arising out         correctional    Institution    at   Bastrop,
of the same criminal charge, the                 Texas.
remittitur request related to the surety            July 1990
bond [**2] was denied. For the reasons
stated below, we modify the trial court              An employee of the appellant bail
action and, as modified, on affirm the           bond company determined that Gonzales
judgment.                                        had been incarcerated in the Nueces
                                                 county jail since February 1990. Bexar
   A chronology of events is helpful:            county authorities [**3] did not have
   April 17, 1989                                this information until it was provided to
    Appellant (Bexar County Bail Bonds)          them by appellant's employee.
executed a bail bond in the amount of $             July 20, 1990
10,000 to secure the pretrial release from          Final judgment in the amount of $
jail of the principal, Rudolfo Lira              10,000 was granted against the appellant
Gonzales.                                        bail bond company.
   October 25, 1989                                  [*381] January 16, 1991
   Because of Gonzales' failure to                  For the first time, Bexar County
appear, the trial court signed a judgment        placed a detainer on Gonzales with the
nisi.                                            United States Marshall's Office.
   November 28, 1989                                April 18, 1991
   Gonzales was arrested again and                  Gonzales was transferred to the
placed in the Bexar County jail.                 Bexar County jail for disposition of his
   December 1, 1989                              Bexar County indictment.        He was
   Notwithstanding Gonzales' failure to          convicted and sentenced to five years
appear pursuant to the terms of the              imprisonment in the Texas Department
surety bond, he was granted a $ 10,000           of Corrections.
personal recognizance bond, again                   June 14, 1991
securing his release from jail.                     A hearing was conducted concerning
   January 16, 1990                              the appellant surety company's petition
   Gonzales once again failed to appear          for a bill of review and special bill of
and the personal recognizance bond was           review and a hearing was conducted on
also forfeited.                                  the amended judgment nisi forfeiting
                                                 Gonzales' personal recognizance bond.
   June 27, 1990                                 Notwithstanding the disposition and
  The surety company learned that                conviction on Gonzales' criminal case
Gonzales was incarcerated at the Federal         and notwithstanding the state's insistence
                                                 that the bail bond company pay $ 10,000
       Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)



on the forfeiture of the surety bond, the        of action accrued. TEX. CIV. PRAC.
state dismissed it's cause of action             REM. CODE [**5] ANN. § 16.051
against Gonzales on the $ 10,000                 (Vernon 1986) (residual limitations
personal recognizance bond, presumably           period). A general bill of review
because of an uncollectability factor.           proceeding requires a petitioner to prove
Appellant surety's petition [**4] for bill       (1) a meritorious defense, (2) which the
of review and special bill of review was         party was prevented from making by the
denied.                                          opposite party (3) unmixed with any
   The procedural vehicle by which the           fault or negligence of the petitioner's
appellant surety sought relief is found in       own. Alexander v. Hagedorn, 148 Tex.
article 22.17(a) of the Texas Code of            565, 568-69, 226 S.W.2d 996, 998
Criminal Procedure:                              (1950).
                                                     Apparently, the state convinced the
                                                 trial judge that the general bill of review
    Not later than two years after the date      requirements must be applied to article
a final judgment is entered in a bond            22.17, the statutory special bill of
forfeiture proceeding, the surety on the         review. We are persuaded, however,
bond may file with the court a special           that such is not the case and hold that a
bill of review. A special bill of review         statutory bill of review petitioner under
may include a request, on equitable              article 22.17 need not conform to the
grounds, that the final judgment be              rules of the equitable practice applicable
reformed and that all or part of the bond        to bills of review and is not limited by
amount be remitted to the surety, after          those restrictions. See Westchester Fire
deducting the costs of court, any                Ins. Co. v. Nuckols, 666 S.W.2d 372,
reasonable costs to the county for the           374-375 (Tex. App.--Eastland 1984, writ
return of the principal, and the interest        ref'd n.r.e.) (citing Norton v. Cheney,
accrued on the bond amount from the              138 Tex. 622, 161 S.W.2d 73, 74
date of forfeiture. The court in its             (1942)); see also Pure Oil Co. v. Reece,
discretion may grant or deny the bill in         124 Tex. 476, 479, 78 S.W.2d 932, 934
whole or in part.                                (1935). Further, we presume the
   A surety also has a right to an               legislature intended to abrogate the
equitable proceeding through the                 Alexander v. Hagedorn general bill of
procedure of a general bill of review.           review requirements when it passed
Williams v. State, 670 S.W.2d 717, 722           article [**6]          22.17 in 1987.
(Tex. App.--San Antonio 1984), aff'd as          Accordingly, a petitioner under article
modified 707 S.W.2d 40 (Tex. Crim.               22.17 is not required to allege and prove
App. 1986). An original petition for a           the Alexander v. Hagedorn elements of a
general bill of review must be brought           meritorious defense which could not be
within four years after the date the cause       presented because of conduct by the
         Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)



opposing party unmixed with any fault                    United States v. Mizani, 605 F. 2d
or negligence of the petitioner's own.                   739, 740 (4th Cir. 1979); Johnson
   On the other hand, a special bill of                  v. State, 172 Tex. Crim. 624, 361
review proceeding under article 22.17                    S.W.2d 574, 575-76 (Tex. Crim.
should take into account that the object                 App. 1961), cert. denied, 371 U.S.
and purpose of bail is to secure the                     828, 9 L. Ed. 2d 66, 83 S. Ct. 20
presence of the accused for disposition                  (1962); Ricard v. State, 171 Tex.
of the criminal charges against him and                  Crim. 456, 350 S.W.2d 938, 938-40
consider other factors including, but not                (Tex. Crim. App. 1961); Williams v.
necessarily limited to the following:                    State, 159 Tex. Crim. 443, 265
                                                         S.W.2d 92, 94 (Tex. Crim. App.
1) a bail bond is not punitive, nor is it                1954).
intended to be a substitute for a fine or              In applying these factors to the case
[*382] a revenue device to enrich the              before us, the record reflects the
government's coffers. See Carbo v.                 following:
United States, 7 L. Ed. 2d 769, 82 S. Ct.             1) There is no evidence in the record
662, 665 (1962); United States v. Bass,            regarding any cost or inconvenience to
573 F.2d 258, 260 (5th Circ. 1978);                the state in regaining custody of
Trammel v. State, 529 S.W.2d 528, 529              Gonzales.
(Tex. Crim. App. 1975).
                                                      2) A brief thirty-four day delay was
   2) The government's cost and                    occasioned by Gonzales' failure to
inconvenience in regaining custody.                appear.
    3) The delay caused by the principal's             [**8] 3) There apparently was no
failure to appear.                                 evidence of any willfulness of the breach
   4) The willfulness of the principal's           of conditions in view of the undisputed
breach of the bond conditions. 5) The              fact that Mr. Gonzales was given a
public [**7] interest in insuring the              personal recognizance bond three days
principal's appearance.                            after his rearrest and in view of the
   6) The participation of the surety in           state's decision not to pursue a $ 10,000
rearresting the principal. 7) The                  judgment against Mr. Gonzales on his
prejudice suffered by the government. 1            personal recognizance bond.
                                                      4) The public interest in law
     1                                             enforcement was served by Mr.
        See, e.g., United States v.                Gonzales' quick reapprehension.
     Cervantes, 672 F.2d 460, 461 (5th                5) The government suffered no
     Cir. 1982); United States v. Parr,            prejudice in prosecuting the criminal
     594 F.2d 440, 444 (5th Cir. 1979);            case against Mr. Gonzales and, in fact,
       Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.-San Antonio 1992, no pet.)



the appellant surety was the party who           surety is able to pay the $ 10,000 to the
located Mr. Gonzales in the Nueces               government. We hold that equity, due
County Jail and informed Bexar County            process and basic concepts of fairness
authorities.                                     require that Chapter 22 of the Texas
   We are also troubled by the apparent          code of criminal Procedure be applied
double standard of due process applied           similarly to surety bonds and personal
by the state to Mr. Gonzales and the             recognizance bonds alike.
appellant surety. On the same day that               Accordingly, we sustain the appellant
the state vigorously pursued the $               surety's point of error. There is authority
10,000 judgment against the appellant            for the proposition that an appropriate
surety, it filed a motion for nonsuit as to      remittitur can be ordered by the
Mr. Gonzalez' $ 10,000 obligation and            appellate court. Johnson v. State, 361
said:                                            S.W.2d at 575-76; Ricard v. State, 350
   Plaintiff [THE STATE] no longer               S.W.2d at 938-40; Williams v. State, 265
desires to prosecute [its] suit against          S.W.2d at 95. Taking into account the
Rudolfo L. Gonzales, who is principal            requirements of article 22.17 concerning
and surety on this [personal bond] as            deduction for court costs, costs for
defendant Rudolfo L. Gonzales has been           returning Gonzales to Bexar county and
returned to custody [**9] and the case is        the interest accrued on the bond from the
closed, therefore the purpose of the             date of forfeiture to the date of rearrest
[personal bond] has been satisfied.              (thirty two days), we order that the
(emphasis added).                                judgment of the trial [**10] court be
                                                 reformed to reflect a remittitur of $
    The rationale for not pursuing a $           9,500. As modified, the judgment of the
10,000 judgment against Mr. Gonzales             trial court is affirmed.
could and should equally be applied to
the appellant surety. The only apparent             FRED BIERY,
difference between the appellant surety             Justice
and Mr. Gonzales is that the appellant
                     Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                      (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)




            GRIMES COUNTY BAIL BOND BOARD, Appellant v.
            SONNY ELLEN D/B/A SONNY ELLEN BAIL BONDS,
                             Appellee

                   NO. 14-06-00906-CV, NO. 14-06-00907-CV

             COURT OF APPEALS OF TEXAS, FOURTEENTH
                       DISTRICT, HOUSTON

                  267 S.W.3d 310; 2008 Tex. App. LEXIS 5489

                       July 22, 2008, Judgment Rendered
                          July 22, 2008, Opinion Filed

SUBSEQUENT HISTORY: Petition
for review filed by, 10/15/2008              OPINION BY: William J. Boyce

PRIOR HISTORY: [**1]                         OPINION
 On Appeal From The 12th District                 [*313] The Grimes County Bail
Court, Grimes County, Texas. Trial           Bond Board suspended and later
Court Cause No. 30,088 and 30,140.           revoked Sonny Ellen's bail bond surety
Ellen v. Brazos County Bail Bond Bd.,        license after he failed to disclose unpaid
127 S.W.3d 42, 2003 Tex. App. LEXIS          judgments for bail bond forfeitures in his
6159 (Tex. App. Houston 14th Dist.,          license application. In a de novo appeal,
2003)                                        the trial court found that Ellen had failed
                                             to pay judgments but nonetheless
                                             reinstated his license. Because Ellen had
COUNSEL: For APPELLANTS: Jon                 unpaid judgments at the time of trial, the
Christopher Fultz, Anderson, TX.             trial court abused its discretion in
                                             reinstating his license. We therefore
For APPELLEES: Lane D. Thibodeaux,           reverse the trial court's judgment and
Bryan, TX.                                   remand       for    further    proceedings
                                             consistent with this opinion.
JUDGES: Panel consists of Chief
Justices Hedges, and Justices Brown and      BACKGROUND
Boyce.
                       Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                        (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


    The Board issued a bail bond surety        section 1704.252 to provide discretion to
license to Sonny Ellen in April 2005.          reinstate, which it employed to reinstate
Two months later, the Board suspended          Ellen's license. The Board appealed. 3
Ellen's license for failing to pay or
supersede 26 judgments and instructed                2 The Board also concluded that
him to pay all outstanding judgments to              Ellen made a false statement on his
avoid license revocation. In 23 of those             license application. The trial court
cases, Ellen filed special bills of review           noted on the record that Ellen had
in which he sought to reduce the                     answered a license application
amounts owed. 1 On July 8, 2005, those               question incorrectly, but those
special bills were denied. Ellen                     comments were [**3] not reduced
subsequently paid most -- but [**2] not              to a formal finding of fact;
all -- of the outstanding judgments.                 therefore, we will not consider
                                                     them. See Stevens v. Snyder, 874
     1 Filing a special bill of review               S.W.2d 241, 243 (Tex. App.--Dallas
     does not obviate the bondsman's                 1994, writ denied). The record does
     obligation to pay or supersede a                not demonstrate that the Board
     forfeiture judgment. See Tex. Occ.              requested an additional finding of
     Code Ann. § 1704.204(a) (Vernon                 fact on this ground, and the trial
     2004); In re Casteneda, No. 04-04-              court's lack of such finding
     00152-CV, 2004 Tex. App. LEXIS                  therefore is not preserved for
     2552, 2004 WL 572355, at *1 (Tex.               review. See Robles v. Robles, 965
     App.--San Antonio March 24,                     S.W.2d 605, 611 (Tex. App.--
     2004, orig. proceeding [mand.                   Houston [1st Dist.] 1998, pet.
     denied]) (mem. op.).                            denied).
   The Board revoked Ellen's license on              3 Ellen separately appealed the
July 15, 2005 for failing to pay                     Board's rulings suspending and
judgments pursuant to Occupations                    later revoking his license. The trial
Code sections 1704.204 [*314] and                    court consolidated those two de
1704.252. 2 Ellen appealed the Board's               novo proceedings, and we resolve
decision to the district court, which                both together.
conducted a trial de novo on appeal. The
court found that Ellen failed to pay           STANDARD OF REVIEW
judgments      in    accordance     with           A bail bond licensee may appeal a
Occupations Code section 1704.204,             board order suspending or revoking a
which is a stated reason for suspending        license by filing a petition in the trial
or revoking a bail bond surety license.        court. Tex. Occ. Code Ann. §
See Tex. Occ. Code Ann. § 1704.252(8)          1704.255(a) (Vernon 2004). The trial
(Vernon 2004). The court interpreted           court is to review the appeal "by trial de
                        Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                         (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


novo in the same manner as an appeal            factual sufficiency of the evidence
from a justice court to a county court."        supporting a jury's answer to a jury
Tex. Occ. Code Ann. § 1704.256                  question. Blackwood, 2 S.W.3d at 33
(Vernon 2004). Therefore, in the district       (citing Catalina v. Blasdel, 881 S.W.2d
court both sides present evidence to the        295, 297 (Tex. 1994)). In reviewing the
trial judge for a determination on the          trial court's conclusions [**5] of law,
evidence introduced. See Harris County          we will uphold on any legal theory
Bail Bond Bd. v. Burns, 881 S.W.2d 61,          supported by the evidence. Burns, 881
62 (Tex. App.--Houston [14th Dist.]             S.W.2d at 62.
1994, writ denied). [**4] The board's
decision to revoke a license enjoys no          ANALYSIS
deference during the de novo appeal. See           The governing statute provides that
id. Instead, the trial court is vested with     "[a]fter notice and hearing, a board may
full power to determine the issues and          revoke or suspend a license if the license
rights of all parties, and to try the case as   holder ... fails to pay a judgment in
though it had been filed originally in that     accordance with Section 1704.204." Tex.
court. See Harris County Bail Bond Bd.          Occ. Code Ann. § 1704.252(8). Section
v. Blackwood, 2 S.W.3d 31, 33 (Tex.             1704.204 requires a bondsman to pay a
App.--Houston [1st Dist.] 1999), rev'd          final judgment on a bail bond forfeiture
on other grounds, 41 S.W.3d 123 (Tex.           not later than the 31st day after the date
2001). 4                                        of the final judgment unless such
                                                judgment [*315] has been appealed, in
     4 Although the Texas Supreme               which case the bondsman must deposit
     Court reversed Blackwood, it               with the court either cash or a
     nonetheless upheld the principle           supersedeas bond in the amount of the
     that a board's decision is entitled to     judgment. See id. § 1704.204(a).
     no deference. See Harris County
     Bail Bond Bd. v. Blackwood, 41                 In 1994, we examined the
     S.W.3d 123, 127 (Tex. 2001) ("[I]n         predecessor statute to section 1704.252
     a de novo proceeding it was                and concluded that a trial court may not
     necessary that the [evidence]              renew the license of a bondsman who
     required by the statute be before          has failed to pay or supersede judgments
     the trial court, which was required        arising from bond forfeitures. Burns,
     to pass on [the license] application       881 S.W.2d at 64. The only choices in
     without regard to the Board's              that circumstance are revocation or
     decision.") (emphasis added).              suspension. See generally id. at 64-65
                                                (applying the grounds for revocation or
   We review the trial court's factual          suspension to license renewal). We
findings under the same standards that          rejected a suggested interpretation that
would be used in reviewing the legal or         would have allowed a board or trial
                        Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                         (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


court to permit persons to work as              revoke his license based upon the
bondsmen even though [**6] they were            presence of unpaid, unsuperseded
statutorily disqualified from doing so.         judgments. He urges us to overrule
See id. at 63. We concluded that such a         Burns, contending that the decision
statutory interpretation would defeat the       violates the Code Construction Act's
legislative purpose of protecting the           definition of the term "may;" defeats the
public's interest in securing the               purpose of de novo appeal; and renders
appearance of the accused. See id.; In re       an accompanying statutory provision
Canales, 52 S.W.3d 698, 702 (Tex.               meaningless.
2001) (orig. proceeding) (court may                We decline the invitation to overrule
consider the statute's objectives and the       Burns, and we re-affirm that the bail
consequences       of     a     particular      bond act gives a trial court discretion to
construction).                                  choose between suspending or revoking
    Almost a decade later, we concluded         the license of a bondsman who has
that Burns survived the Legislature's           unpaid judgments at the time of the de
1999 recodification of the bail bond act.       novo hearing. The trial court does not
See Ellen v. Brazos County Bail Bond            have discretion to reinstate a license
Bd., 127 S.W.3d 42, 47-48 (Tex. App.--          because the statute does not provide this
Houston [14th Dist.] 2003, no pet.). We         option under these circumstances. We
presume that the Legislature knew of our        reach this conclusion based not only on
interpretation in Burns when it                 the continuing vitality of Burns, but also
recodified the statute. See Coastal Indus.      because of the statute's unambiguous
Water Auth. v. Trinity Portland Cement          language.
Div., 563 S.W.2d 916, 918 (Tex. 1978).
The recodified statute carried forward          A. Stare Decisis
the same language we interpreted in                Given Burns, a discussion of stare
Burns, thereby indicating a legislative         decisis is warranted at the outset. Our
adoption of our prior construction. See         prior opinions have continuing authority,
id.                                             even when a party contends that a
    Although Burns involved license             precedent was incorrectly decided. See
renewal rather than suspension or               Guest v. Cochran, 993 S.W.2d 397, 404
revocation, the legal justifications for        n.6 (Tex. App.--Houston [14th Dist.]
refusing to renew a license apply with          1999, no pet.). [**8] We generally
equal force to suspension or revocation.        adhere to our precedents pursuant to
See id. at 64-65. Ellen candidly [**7]          stare decisis because consistency
acknowledges that, under Burns's                promotes efficiency, fairness, and
interpretation of the bail bond act, the        legitimacy. See Weiner v. Wasson, 900
trial court could not reinstate his license;    S.W.2d 316, 320 (Tex. 1995). If we did
its only choices were to suspend or             not follow our own decisions we would
                       Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                        (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


not be giving due consideration to the         legislative intent. Canales, 52 S.W.3d at
settled expectations of litigants because      702. If a statute is clear and
no issue could ever be considered truly        unambiguous, we need not resort to
resolved. See id. In addition, the             rules of construction. Id. We may
legitimacy of the [*316] judiciary rests       consider, among other things, the
in significant part "upon a stable and         statute's objectives and the consequences
predictable decisionmaking process." Id.       of a particular construction. Id. We read
    Stare decisis is strongest in cases        the statute as a whole and interpret it to
involving statutory construction because       effectuate every part. See City of
the Legislature may correct perceived          Houston v. Jackson, 42 S.W.3d 316,
construction errors through statutory          319-20 (Tex. App.--Houston [14th Dist.]
amendment. See Fiess v. State Farm             2001, pet. dism'd w.o.j.).
Lloyds, 202 S.W.3d 744, 749-50 (Tex.              Ellen focuses on the word "may" in
2006). As noted above, the Legislature         the phrase "may revoke or suspend"
met after Burns was issued and                 appearing in section 1704.252. Ellen
recodified the bail bond act without           argues that "may" is permissive rather
substantive change. See Tex. Occ. Code         than mandatory so as to give a trial court
Ann. § 1.001 (Vernon 2004). We                 discretion to reinstate if it so chooses.
therefore presume that the Legislature         Ellen stresses that the term "may"
intended the same construction to              signifies "discretionary authority or
continue to apply. See Fiess, 202 S.W.3d       grants permission or a power." See Tex.
at 749-50. This presumption underscores        Gov't Code Ann. § 311.016(1) (Vernon
that Burns was correctly decided.              [**10] 2005). This is true as far as it
   In light of Ellen's challenge to the        goes -- but it does not go as far as Ellen
correctness and wisdom of Burns,               contends.
however, we do not rely solely upon                The word "may" must be analyzed,
stare [**9] decisis in concluding that         but it must not be analyzed in isolation;
the trial court lacked discretion to           statutory context must be considered.
reinstate Ellen's license in the face of       See, e.g., Aaron Rents, Inc. v. Travis
unpaid judgments. We reach this                Cent. Appraisal Dist., 212 S.W.3d 665,
decision because we adhere to our              671 (Tex. App.--Austin 2006, no pet.)
precedent, and because this result is          ("[W]hether a statute requires the
dictated by legislative intent reflected in    imposition of attorney's fees or vests the
the operative statutory language.              trial court with the discretion to decide
                                               does not depend exclusively on whether
B. Statutory Construction                      the statute uses the word 'may' or
   In construing a statute, our primary        'shall.'"); BWI Cos. v. Beck, 910 S.W.2d
goal is to determine and effectuate            620, 623 (Tex. App.--Austin 1995, orig.
                                               proceeding       [mand.       overruled]).
                       Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                        (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


Additionally, the Code Construction Act        mentioned in section 1704.252. The
does not elevate any particular rule over      word "may" cannot be divorced from its
another. See Tex. Gov't Code Ann. §            surrounding language to change the
311.003 (Vernon 2005). We note that            statute's meaning, or to add an option the
several other provisions of the Code           statute does not provide under these
Construction Act support our conclusion        circumstances. See Jones v. Liberty Mut.
in this case, including:                       Ins. Co., 745 S.W.2d 901, 902 (Tex.
                                               1988); see also Morales v. Liberty Mut.
       . The entire statute is                 Ins. Co., 241 S.W.3d 514, 517-18 (Tex.
     presumed to be effective. Id.             2007) (requiring that statutes be read in
     § 311.021(2).                             context).
        . A just and reasonable                    Section 1704.252's unambiguous
     result is intended. Id. §                 language effectuates the statute's
     311.021(3).                               purpose. The bail bond act was intended
         . Public interests are                to ensure the financial security and
     favored over private interests.           integrity of bondsmen, "whose business
     Id. § 311.021(5).                         the Act deems to be in the public interest
                                               aimed at securing the appearance of the
        . The Court may consider               accused." Burns, 881 S.W.2d at 63;
     the objects to be attained and            [**12] Blackwood, 41 S.W.3d at 128.
     the consequences of a                     Consistent with that purpose, the Act --
     particular construction. Id. §            when read as a whole -- evinces a
     311.023.                                  consistent legislative intent to prevent
                                               bondsmen with unpaid judgments from
We agree [**11] that the word "may"            continuing to issue bail bonds. See, e.g.,
vests the trial court with discretion, but     Code Crim. Proc. Ann. art. 17.11, § 2
that discretion does not encompass             (Vernon 2005) (disqualifying defaulting
reinstatement.                                 sureties from signing as sureties on
    Section 1704.252's key language            additional bonds). Accordingly, license
provides that "a board may revoke or           applicants must disclose any unpaid
suspend a license if the license holder ...    judgments; until such judgments are
fails to pay [*317] a judgment[.]" Tex.        paid, applicants are expressly barred
Occ. Code Ann. § 1704.252(8)                   from licensure. See Tex. Occ. Code Ann.
(emphasis added). This language is             § 1704.154(b), (d). Had Ellen disclosed
unambiguous. It gives the trial court          the unpaid judgments, the Board would
discretion to choose between revocation        have been required to deny his
and suspension. It does not give the trial     application. See Blackwood, 41 S.W.3d
court     discretion   to     choose     a     at 126 ("The Act therefore makes all
reinstatement option that is nowhere           application requirements mandatory.").
                       Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                        (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


We will not embrace an interpretation of          Consistent with this purpose, a proper
section 1704.252 that ignores unpaid           bail bond must contain the surety's
judgments foreclosing Ellen's licensure.       binder that the defendant will appear to
    Enforcement of the bail bond act's         answer the charges. Tex. Code Crim.
unambiguous provisions is important for        Proc. Ann. art. 17.08, § 2. An officer
the proper functioning of the bail             who accepts a bail bond must verify the
mechanism. Bail is the security a              sufficiency of the [**14] security
criminal defendant gives to evidence his       offered. Id. art 17.11, § 1; art. 17.13.
promise that he will appear and answer         Those who would act as sureties must
the accusations brought against him.           pass several eligibility requirements,
Tex. Code Crim. Proc. Ann. art. 17.01          including possession of sufficient
(Vernon 2005). The primary purpose             financial resources; experience in the
[**13] of a bail bond is to secure the         bail bond business; and education from
presence of the defendant in court for         an accredited [*318]       institution of
trial on the offense with which he has         higher learning. See Tex. Occ. Code
been charged. McKenna v. State, 247            Ann. § 1704.152.
S.W.3d 716, 719 (Tex. Crim. App. 2008).            After becoming licensed, a bondsman
   Bail bonds are contracts between the        is prohibited from writing bail bonds
surety and the State of Texas. Reyes v.        totaling more than ten times the value of
State, 31 S.W.3d 343, 345 (Tex. App.--         the     deposited    security.    Id.    §
Corpus Christi 2000, no pet.). The             1704.203(a). Further, a bondsman may
contract consists of the surety's promise      not execute additional bail bonds if the
that the defendant will appear before the      amount of liability on pending
court. See id. at 346. Forfeiture              judgments nisi equals or exceeds twice
judgments recognize that the State may         the amount of the deposited security. Id.
incur costs or suffer inconvenience in re-     § 1704.203(c). A bondsman must
arresting an accused who fails to appear.      promptly pay all forfeiture judgments
See McKenna, 247 S.W.3d at 719. While          not later than the 31st day after the date
bail bonds are neither punitive nor a          of the judgment, unless superseded on
substitute for fines or revenue devices,       appeal. Id. § 1704.204(a). A licensing
they protect the public's interest by          board that learns of unpaid final
ensuring the defendant's appearance and        judgments must immediately notify the
encouraging the surety's participation in      sheriff, who is prohibited from accepting
re-arrest when the defendant does not          any bonds from that surety until the
appear. See Gramercy Ins. Co. v. State,        judgments have been paid. See id. §
834 S.W.2d 379, 381-82 (Tex. App.--San         1704.2535.        These       enforcement
Antonio 1992, no writ).                        provisions protect against a bondsman's
                                               insolvency. Font v. Carr, 867 S.W.2d
                        Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                         (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


873, 880 (Tex. App.--Houston [1st Dist.]        determination to revoke, therefore enjoy
1993, writ dism'd w.o.j.).                      no deferential treatment. See Burns, 881
    In [**15] light of this detailed            S.W.2d at 62.
structure, the existence of multiple                But the power to try a case de novo
unpaid judgments is no mere                     does not confer unbridled discretion to
technicality. A bondsman's accumulation         pick an outcome the statute does not
of unpaid judgments undermines the              specify for a bondsman with unpaid
entire bail process. The Legislature            judgments. Section 1704.252 limits the
consistently has spoken to prevent              trial court's options if it finds one of the
defaulting sureties from continuing to          enumerated statutory violations. See id.
act as bail bondsmen. Interpreting              (providing that a license may be revoked
section 1704.252 to permit reinstatement        or suspended if the bondsman is found
in the face of unpaid judgments would           to have committed one of the listed
eviscerate legislative intent to prevent        violations). The terms "revoke" and
bondsmen in default from continuing to          "suspend" are not interchangeable. A
issue bail bonds. See Burns, 881 S.W.2d         suspended license is subject to
at 63.                                          reinstatement if the violation that led to
                                                suspension can be cured. See, e.g., Tex.
C. Trial De Novo                                Occ. Code Ann. § 1704.253(a)
    Ellen contends that continued               (providing for reinstatement of a
adherence to Burns is incompatible with         suspended license after the deposit of
judicial review of a board's decision by        additional security). By contrast, a
trial de novo in the district court. See        bondsman whose license has been
Tex. Occ. Code Ann. §§ 1704.255(a),             revoked must reapply for a new license.
1704.256. The basis for this contention         See, e.g., Austin v. Harris County Bail
is not clear. The district court's power to     Bond Bd., 756 S.W.2d 65, 66 (Tex. App.-
conduct a trial "de novo," that is, a "trial    -Houston [1st Dist.] 1988, writ denied).
anew," vests the court with full power to           Allowing a trial court to re-hear the
determine the issues and parties' rights,       evidence     and     reach     its   own
and to try the case as though suit had          determination while confining its
been filed originally in that court. See        options within the boundaries of section
Lone Star Gas Co. v. State, 137 Tex.            1704.252 harmonizes [**17] statutory
279, 153 S.W.2d 681, 692 (Tex. 1941);           language with legislative intent to
Blackwood, 2 S.W.3d at 33. The trial            prevent sureties from issuing bail bonds
court, as the trier of fact, weighs the         while in default of forfeiture judgments.
evidence and assesses credibility. See          [*319] The trial court need not make the
Jones v. Tarrant Util. Co., 638 S.W.2d          same ruling as the licensing board. For
862, 866 (Tex. 1982). [**16] The                example, although a board may revoke a
Board's factual findings, and ultimate          license for unpaid judgments, the trial
                       Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                        (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


court may opt to consider mitigating                 § 311.024. Accordingly, we will
factors and decide upon suspension                   not consider the title when
pending payment of the outstanding                   interpreting the statute.
judgments. Moreover, if the license                Under section 1704.252(8), the board
holder can cure a section 1704.252             "may revoke or suspend a license" if the
violation at the time of the de novo           license holder fails to pay or supersede a
hearing     by    paying     outstanding       judgment. Under section 1704.253(a),
judgments, the license then may be             the board "shall immediately suspend a
reinstated because section 1704.252 no         license" if the license holder fails to
longer would require suspension or             maintain the aggregate security required
revocation. In short, our interpretation       under section 1704.160. Under section
does not conflict with the concept of de       1704.253(b), the board "shall revoke a
novo review.                                   license" if the license holder fails to
                                               maintain the aggregate security required
D. Role of Section 1704.253                    under 1704.160, and also fails to pay or
   Ellen argues that our interpretation of     supersede a judgment.
section 1704.252 is erroneous because it           Section 1704.252(8) vests the trial
renders meaningless an accompanying            court with discretion to suspend or
provision, section 1704.253. We                revoke a license if the bondsman fails to
disagree.                                      pay or supersede a judgment. See Tex.
    Section 1704.252 provides for              Occ. Code Ann. § 1704.252(8). In
"Discretionary License Suspension or           contrast, section 1704.253(a) gives the
Revocation," while section 1704.253            trial court no discretion if the bondsman
provides for "Mandatory License                fails to maintain the aggregate security
Suspension or Revocation." 5 Ellen             required [**19] under section 1704.160;
contends that interpreting section             suspension is the only option. Similarly,
1704.252 to require suspension or              section 1704.253(b) gives a trial court
revocation    --   and   to    exclude         no discretion if the bondsman fails to
reinstatement -- [**18] makes section          pay or supersede a judgment, and also
1704.253 meaningless because this latter       fails to maintain the aggregate security
provision also requires suspension or          required under section 1704.160. In that
revocation. This argument fails to             latter circumstance -- which couples an
recognize that sections 1704.252 and           unpaid and unsuperseded judgment with
1704.253         address      different        insufficient aggregate security --
circumstances.                                 revocation is the only option. See id. §
                                               1704.253(b). Because sections 1704.252
     5 The title of a section does not         and      1704.253     address     different
     limit or expand the statute's             circumstances, our interpretation of
     meaning. See Tex. Gov't Code Ann.         section 1704.252 does not render section
                       Grimes Co. Bail Bond Board v. Ellen, 267 S.W.3d 310
                        (Tex. App.-Houston [14th Dist.] 2008, pet. denied.)


1704.253 meaningless. See Helena               still has unpaid judgments against him.
Chem. Co. v. Wilkins, 47 S.W.3d 486,           If so, the trial court can decide [*320]
493 (Tex. 2001).                               whether to revoke [**20] Ellen's license
                                               or suspend it until all outstanding
CONCLUSION                                     judgments have been paid.
    Section 1704.252 vests the trial court         Accordingly, we reverse the July 18,
with the discretion to revoke or suspend       2006 judgments in cause numbers
a bondsman's license when there are            30,088 and 30,140, and remand to the
unpaid judgments. Because the trial            trial court for further proceedings
court found that Ellen had unpaid              consistent with this Opinion.
judgments but nevertheless reinstated his          /s/ William J. Boyce
license, we must reverse. The Board
asks that we render judgment in its                Justice
favor. However, we believe that remand             Judgment Rendered and Opinion
is appropriate. We remand these                filed July 22, 2008.
proceedings to the trial court for a
determination as to whether Sonny Ellen
    KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)




              KPMG Peat Marwick, Petitioner v. Harrison County
                   Housing Finance Corp., Respondent

                                     No. 97-0729,

                         SUPREME COURT OF TEXAS

            988 S.W.2d 746; 1999 Tex. LEXIS 39; 42 Tex. Sup. J. 428

                             October 20, 1998, Argued
                             March 25, 1999, Delivered

PRIOR HISTORY:                [**1] On           We are asked to decide whether
Petition for Review from the Court of         Harrison County Housing Finance
Appeals for the Sixth District of Texas.      Corporation's (HCH) claims against
                                              KPMG Peat Marwick, LLP for
DISPOSITION:         Court of appeals'        violations of the Deceptive Trade
judgment reversed and judgment                Practices Act and negligence are barred
rendered that HCH take nothing.               by the two-year statute of limitations.
                                              The trial court granted summary
COUNSEL:         FOR PETITIONER:              judgment for Peat Marwick on all of
Mountz, Mr. Timothy W., Baker &               HCH's claims. But the court of appeals
Botts, Dallas, TX.                            reversed the trial court's summary
                                              judgment on the DTPA and negligence
FOR RESPONDENT: Grajczyk, Mr.                 claims and remanded these for trial. 1
Gregory P., Boos Law Office, Milbank,
SD.                                                 1 948 S.W.2d 941.
JUDGES: Justice Enoch delivered the              Applying the discovery rule, the
opinion of the Court.                         court of appeals held that neither claim
                                              was time-barred. It reasoned that Peat
OPINION BY: CRAIG T. ENOCH                    Marwick had not presented conclusive
                                              evidence that HCH discovered or in the
OPINION                                       exercise of reasonable diligence should
                                              have discovered the wrongful [**2] act
    [*747] Justice Enoch delivered the
opinion of the Court.
    KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)



which allegedly caused its injury more        alleged that in February 1989, First
than two years before HCH filed suit. 2       Interstate prematurely sold assets in the
                                              capital reserve fund, resulting in a loss in
     2 Id.at 947.                             excess of $ 621,000 when the bonds
   To the contrary, we conclude that          were refunded in December 1991. First
Peat     Marwick     has     conclusively     Interstate and its shareholder moved for
established that HCH's claims against         summary judgment on several grounds,
Peat Marwick accrued more than two            including that the bank had not
years before suit was filed. Accordingly,     mismanaged the trust funds, that HCH
we reverse the court of appeals'              was well informed of the bank's actions
judgment on both the DTPA and                 through monthly reports, and that HCH's
negligence claims and render judgment         claims were barred by the applicable
that HCH take nothing.                        [*748] statutes of limitations. Without
                                              specifying the grounds, the trial court
   From 1980 to 1990, Peat Marwick            granted First Interstate's motion for
provided accounting and auditing              summary judgment. HCH did not
services to HCH for a series of bonds         appeal.
HCH had issued. In addition, Peat
Marwick was to ensure that the trustee            On October 1, 1993, while the First
for the bonds, First Interstate Bank of       Interstate lawsuit was still pending,
California, complied with the trust           HCH learned about Peat Marwick's 1985
indenture.                                    agreement with First Interstate and that
                                              Peat Marwick's 1985 audit of First
   Under the trust indenture, one of First    Interstate's records had revealed
Interstate's duties as trustee was            irregularities in First Interstate's
overseeing a capital reserve fund             accounting of the trust assets. According
established to pay principal or to redeem     to HCH, Peat Marwick informed [**4]
bonds. And during the period of the           First Interstate but not HCH of the
auditing services, specifically in 1985,      irregularities. HCH further claims it then
First Interstate hired, on its own behalf,    discovered that Peat Marwick had
a partner from Peat Marwick to prepare        advised First Interstate that the capital
a special procedures report about the         reserve fund could be set at an amount
trust [**3] assets. But Peat Marwick did      lower than what the trust indenture
not tell HCH about this dual                  required. And HCH asserts that Peat
representation.                               Marwick did not report that advice to
   On February 1, 1993, HCH filed suit        HCH.
against First Interstate and one of its           HCH sued Peat Marwick in federal
shareholders, alleging breach of              court on July 14, 1995, but the case was
fiduciary duty, breach of contract,           dismissed for lack of subject matter
negligence, and gross negligence. HCH         jurisdiction. HCH then filed suit in state
     KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)



court. For this appeal, Peat Marwick           Summary Judgment Standard of
concedes that July 14, 1995, is the            Review The standard for reviewing a
applicable date to determine whether           summary judgment under Texas Rule of
HCH's claims were barred when filed. 3         Civil Procedure 166a(c) is whether the
                                               successful movant at the trial level
     3   SeeTex. Civ. Prac. & Rem.             carried its burden of showing that there
     Code § 16.064(a).                         is no genuine issue of material fact and
    In this case, HCH alleged that Peat        that judgment should be granted as a
Marwick, as the trust's auditor, either        matter of law. 4 In conducting our
negligently or intentionally failed to         review, we take as true all evidence
disclose          First         Interstate's   favorable [**6] to the nonmovant, and
mismanagement of the trust. HCH                we make all reasonable inferences in the
further alleged causes of action for           nonmovant's favor. 5
breach of warranty (which is not part of
this appeal) and violations of the DTPA.            4 See, e.g., Lear Siegler, Inc. v.
                                                    Perez, 819 S.W.2d 470, 471 (Tex.
    In support of its motion for summary            1991); Nixon v. Mr. Property
judgment on limitations grounds, [**5]              Management Co., 690 S.W.2d 546,
Peat Marwick attached HCH's original                548-49 (Tex. 1985).
petition in the suit against First                  5 See Nixon, 690 S.W.2d at 548-
Interstate. That petition sought recovery           49.
for the same injury -- the premature
selling of the fund assets in 1989                 A defendant moving for summary
resulting in a loss in excess of $ 621,000     judgment on the affirmative defense of
-- that HCH alleges in this suit was           limitations   has      the    burden    to
caused by Peat Marwick's wrongful              conclusively establish that defense. 6
conduct. Peat Marwick contends that the        Thus, the defendant must (1)
petition     against     First    Interstate   conclusively prove when the cause of
demonstrates that HCH knew of its              action accrued, and (2) negate the
claim no later than February 1, 1993.          discovery rule, if it applies and has been
Apparently in response, HCH amended            pleaded or otherwise raised, by proving
its petition to allege that not until          as a matter of law that there is no
October 1, 1993, did it learn of Peat          genuine issue of material fact about
Marwick's role in the disputed financial       when the plaintiff discovered, or in the
irregularities. But it does not appear that    exercise of reasonable diligence should
HCH filed a formal response to Peat            have discovered the nature of its injury. 7
Marwick's       motion     for    summary      If the movant establishes that the statute
judgment or produced any evidence to           [**7] of limitations bars the action, the
defeat the motion. As mentioned, the           nonmovant must then adduce summary
trial court granted summary judgment.I.
     KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)



judgment proof raising a fact issue in              11 SeeTex. Bus. & Com. Code §
avoidance of the statute of limitations. 8          17.49(c).
                                                   Contending that during the relevant
     6 See Velsicol Chem. Corp. v.             time period Peat Marwick had worked
     Winograd, 956 S.W.2d 529, 530             for First Interstate independently as well
     (Tex. 1997).                              as for [**9] HCH, HCH argues that its
     7     See Burns v. Thomas, 786            claims against Peat Marwick did not
     S.W.2d 266, 267 (Tex. 1990);              accrue until October 1, 1993, when it
     Woods v. William M. Mercer, Inc.,         learned through discovery in the First
     769 S.W.2d 515, 518 n.2 (Tex.             Interstate suit that Peat Marwick knew
     1988).                                    of financial irregularities in the bond
     8 See City of Houston v. Clear            issue but failed to report them to HCH.
     Creek Basin Auth., 589 S.W.2d             In agreeing with HCH, the court of
     671, 678 (Tex. 1979).                     appeals erroneously concluded that in
                                               recent decisions this Court employed a
[*749] II. Accrual of HCH's DTPA               "new formulation" of the discovery rule.
Claim                                          12
                                                  The court of appeals held that under
    A DTPA claim is subject to a two-          this "new formulation," a claim does not
year statute of limitations. The claim         accrue until plaintiff knows not only of
accrues when "the consumer discovered          the injury, but the specific nature of each
or in the exercise of reasonable diligence     wrongful act that may have caused the
should have discovered [**8]             the   injury. 13 This is incorrect. The rule in
occurrence of the false, misleading, or        those cases was, as it is in this one, that
deceptive act or practice." 9 Thus, the        accrual occurs when the plaintiff knew
discovery rule applies to HCH's DTPA           or should have known of the wrongfully
claim. 10 We note that effective               caused injury. 14
September 1, 1995, the Legislature
amended the DTPA to exempt                          12 See 948 S.W.2d at 946 (citing
professional services with some                     Diaz v. Westphal, 941 S.W.2d 96,
exceptions. But because this suit was               99 (Tex. 1997); S.V. v. R.V., 933
originally filed before that date, the 1995         S.W.2d 1, 4 (Tex. 1996)).
amendments do not apply. 11                         13 See 948 S.W.2d at 947.
                                                   [**10]
     9     Tex. Bus. & Com. Code §
     17.565.                                        14 See Murphy, 964 S.W.2d at
     10 See Burns, 786 S.W.2d at 267;               271; Diaz, 941 S.W.2d at 99; S.V.,
     see also Murphy v. Campbell, 964               933 S.W.2d at 4; see also Childs v.
     S.W.2d 265, 271 (Tex. 1997).                   Haussecker, 974 S.W.2d 31, 40
                                                    (Tex. 1998); Russell v. Ingersoll
     KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)



     Rand Co., 841 S.W.2d 343, 344 n.3         also asserts that its pleading is sufficient
     (Tex. 1992); Moreno v. Sterling           summary judgment evidence of the
     Drug, Inc., 787 S.W.2d 348, 351           affirmative defense of fraudulent
     (Tex. 1990).                              concealment to defeat Peat Marwick's
    The summary judgment evidence              summary judgment motion. In both
established that the wrongful injury           respects, HCH is incorrect.
HCH alleges it suffered is the loss of             First, a party asserting fraudulent
over $ 621,000 in December 1991 when           concealment as an affirmative defense to
it refunded the bonds following the            the statute of limitations has the burden
premature sale in 1989 of the reserve          to raise it in response to the summary
fund assets. Significantly, HCH sued           judgment motion 15 and to come forward
First Interstate over this precise injury in   with summary judgment evidence
early 1993, less than two years later.         raising a fact issue on each element of
Indisputably, HCH was aware by then of         the fraudulent concealment defense. 16 A
its injury and that its injury was caused      mere pleading does not satisfy either
by the wrongful conduct of another.            [*750] burden. 17 Thus, even assuming
   The loss from the premature sale of         that HCH pled fraudulent concealment
the fund assets should have caused HCH         as an affirmative defense to Peat [**12]
to investigate not only the possibility        Marwick's answer pleading limitations,
that First Interstate had mismanaged the       HCH still had to respond to Peat
fund assets, as HCH apparently did             Marwick's summary judgment motion.
because it sued First Interstate, but also     There is no such response in the record.
Peat     Marwick's      possible   [**11]      Therefore, HCH did not carry its burden
involvement in the mismanagement and           to both plead the defense and support it
loss. HCH had hired Peat Marwick to do         with summary judgment evidence.
annual trust asset audits, including the
reserve fund, to ensure compliance with             15 SeeTex. R. Civ. P. 166a(c);
the trust indenture. Therefore, the loss            Hudson v. Wakefield, 711 S.W.2d
should have caused HCH to also                      628, 630 n.1 (Tex. 1986); City of
investigate why its auditor, Peat                   Houston, 589 S.W.2d at 679.
Marwick, did not discover or report the             16 See American Petrofina, Inc.
mismanagement.                                      v. Allen887 S.W.2d 829, 830 (Tex.
                                                    1994); Nichols v. Smith, 507
   As an independent ground to defeat               S.W.2d 518, 521 (Tex. 1974).
summary judgment, HCH asserts that                  17     See City of Houston, 589
Peat Marwick fraudulently concealed its             S.W.2d at 678.
wrongful conduct, and limitations did
not begin to run until HCH knew or                Second, when a defendant has
should have known of its injury. HCH           fraudulently concealed the facts forming
                                               the basis of [**13] the plaintiff's claim,
    KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)



limitations does not begin to run until            20 See Childs, 974 S.W.2d at 36;
the claimant, using reasonable diligence,          Murphy, 964 S.W.2d at 270.
discovered or should have discovered             HCH argues that its negligence claim
the injury. 18 Because Peat Marwick's         against Peat Marwick did not accrue
summary         judgment        evidence      until it learned through discovery in the
conclusively established that HCH             First Interstate suit of Peat Marwick's
discovered its injury more than two           wrongful conduct. We disagree.
years before it sued Peat Marwick, Peat
Marwick is entitled to summary                   This Court has never considered
judgment. As with the discovery rule,         whether the discovery rule applies to
once HCH knew that it had been injured        auditing malpractice claims. Assuming
by fund mismanagement, it should have         without deciding that it does, however,
investigated why its auditor, Peat            the summary judgment evidence
Marwick, had failed to discover or            establishes that HCH knew or should
report the mismanagement to HCH.              have known of its negligence claim
Accordingly, fraudulent concealment           more than two years before it filed suit.
pleadings do not rescue HCH's DTPA            HCH relies on the same wrongfully
claim.III.    Accrual      of     HCH's       [**15] caused injury asserted in the
Negligence Claim                              DTPA cause of action to claim that Peat
                                              Marwick was negligent. And as we have
     18 See Computer Assocs. Int'l,           mentioned, the evidence conclusively
     Inc. v. Altai, Inc., 918 S.W.2d 453,     establishes that HCH knew of the
     455 (Tex. 1995); Estate of               reserve fund's mismanagement, at least,
     Stonecipher v. Estate of Butts, 591      no later than when it filed the first suit
     S.W.2d 806, 809 (Tex. 1979).             against First Interstate, February 1,
                                              1993. Consequently, HCH's negligence
    Under Section 16.003 of the Civil         claim is also time-barred. Furthermore,
Practice and Remedies Code, negligence        as with HCH's DTPA claims, its
claims,       including       accounting      fraudulent concealment pleadings do not
malpractice, must be brought "not later       rescue the negligence claim.
than two years after [**14] the day the
cause of action accrues." 19 Because the          Peat Marwick has established the
statute does not define or specify when       affirmative defense of limitations by
accrual occurs, we look to the common         conclusively showing that HCH's causes
law to determine when a cause of action       of action accrued more than two years
accrues. 20                                   before HCH filed suit. As a result,
                                              limitations bars HCH's claims for DTPA
     19 Tex. Civ. Prac. & Rem. Code §         violations and negligence and Peat
     16.003(a); see also Murphy, 964          Marwick is entitled to summary
     S.W.2d at 270.                           judgment. Therefore, we reverse the
    KPMG Peat Marwick v. Harrison Co. Housing Fin. Corp., 988 S.W.2d 746 (Tex. 1999)



court of appeals' judgment and render            Craig T. Enoch, Justice
judgment that HCH take nothing.                  Opinion delivered: March 25, 1999
        Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)




            FELIX MICHAEL KUBOSH, Appellant v. THE STATE
                        OF TEXAS, Appellee

                                  NO. 01-04-00268-CV

            COURT OF APPEALS OF TEXAS, FIRST DISTRICT,
                           HOUSTON

                     177 S.W.3d 156; 2005 Tex. App. LEXIS 948

                          February 3, 2005, Opinion Issued

SUBSEQUENT HISTORY: petition                     Kubosh, Law Offices of Paul Kubosh,
for discretionary review dismd In re             Houston, Tx.
Kubosh, 2005 Tex. Crim. App. LEXIS
1140 (Tex. Crim. App., July 27, 2005)            For Appellee: Charles A. Rosenthal, Jr.,
Petition for discretionary review refused        District Attorney - Harris County,
by In re Kubosh, 2005 Tex. Crim. App.            Houston, TX; Ms. Juliane Phillips Crow,
LEXIS 1627 (Tex. Crim. App., Sept. 14,           Houston, TX.
2005)
Motion for rehearing on petition for             JUDGES: Panel consists of Justices
discretionary review denied by In re             Nuchia, Jennings, and Alcala.
Kubosh, 2005 Tex. Crim. App. LEXIS
1846 (Tex. Crim. App., Oct. 26, 2005)            OPINION BY: Elsa Alcala

PRIOR HISTORY:               [**1] On            OPINION
Appeal from the 228th District Court.                [*157] Appellant, Felix Michael
Harris County, Texas. Trial Court Cause          Kubosh, a surety on a bail bond
No. 904739-A.                                    executed for Gustavo Casas, Sr.,
                                                 challenges the trial court's final
DISPOSITION: Affirmed.                           judgment in favor of the State for the
                                                 full amount of a $ 75,000 bond plus
                                                 costs of court, which resulted from
COUNSEL: For Appellant: David A.                 Casas's failure to appear in court, as
Furlow, Stacy L. Kelly, Thompson &               required by the bail bond. In four issues,
Knight L.L.P., Houston, TX; Paul                 Kubosh contends that the trial court
        Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)



erred by rendering judgment in favor of              Kubosh filed an amended answer that
the State. Kubosh contends that the bail         included a general denial and two
bond was invalid as a contract under             "affirmative defenses authorized under
affirmative defenses recognized by the           TEX. R. CIV. P. 94: failure [**3] of
Rules of Civil Procedure, and therefore,         consideration and legal excuse." 2 The
that the agreement was invalid under             premise underlying Kubosh's purported
Chapter 22 of the Code of Criminal               "affirmative     defenses"     was      his
Procedure, 1 which exonerates the surety         contentions that, (1) after Casas failed to
from liability if "the bond is, for any          appear in court, the State failed to
cause, not a valid undertaking in law.           procure the Mexican government's
[**2] " Kubosh also challenges the trial         timely issuance of a "provisional
court's failure to order civil discovery         warrant," due to the Harris County
concerning the bond forfeiture and the           District Attorneys Office's inadequate
State's    extradition   policies    and         extradition policies concerning bail-
procedures. We affirm.                           jumping defendants, and that, (2)
                                                 although Mexican officials knew where
     1 See TEX. CODE CRIM. PROC.                 Casas was, he could not be arrested
     ANN. art. 22 (Vernon Supp. 2004-            without the provisional warrant.
     2005).
                                                       2               Rule     94    states,
Background                                             "AFFIRMATIVE DEFENSES[:]
    Casas was charged by indictment                    In pleading to a preceding
with felony possession of more than                    pleading, a party shall set forth
2,000 pounds of marihuana. Kubosh, a                   affirmatively        accord       and
licensed bail bondsman, and Raul                       satisfaction, arbitration and award,
Ruvalcaba executed a bail bond in the                  assumption of risk, contributory
amount of $ 75,000, as sureties on the                 negligence,         discharge       in
bond for Casas, the principal on the                   bankruptcy,       duress,   estoppel,
bond, to secure Casas's [*158] release                 failure of consideration, fraud,
from custody pending resolution of the                 illegality, injury by fellow servant,
charges. Casas failed to appear and                    laches, license, payment, release,
answer the charge against him as                       res judicata, statute of frauds,
required, and the State moved for bond                 statute of limitations, waiver, and
forfeiture. The trial court signed a                   any other matter constituting an
judgment of forfeiture (judgment nisi)                 avoidance or affirmative defense . .
for the full amount of the bond plus                   ."
costs of court, and an alias capias was             Kubosh [**4] gave the State notice
issued to arrest Casas.                          of intent to take the deposition of a
                                                 Harris County District Attorney's office
         Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)



employee, Kim Bryant, but the State                     3     Neither the principal on the
moved to quash the deposition and for                   bond, Gustavo Casas Sr., nor
protection. The State also filed a motion               cosurety, Raul Ruvalcaba, are
to strike Kubosh's amended answer.                      parties to this appeal, although they
Kubosh subsequently filed applications                  were parties to the underlying
for subpoenas for witnesses and                         proceedings.
production of documents.
    When the trial court began the bond-          Exoneration From Liability Upon
forfeiture bench trial on November 19,            Forfeiture
2003, the State offered a certified copy              Kubosh contends that he is
of the judgment nisi. Kubosh objected to          exonerated from liability for Casas's
admitting this evidence by asserting that         failure to appear based on Chapter 22 of
the State had not complied with his               the Code of Criminal Procedure, which
discovery requests. The trial was                 exonerates the defendant and his sureties
continued until December. In a hearing            if "the bond is, for any cause, not a valid
held on December 18, 2003, the trial              undertaking in law." TEX. CODE CRIM.
court ruled that Kubosh's motions to              PROC. ANN. art. 22.13(a)(1) (Vernon
compel discovery were untimely, and               Supp. 2004-2005). Chapter 22 allows a
that the discovery he requested was               surety to offer proof on the affirmative
irrelevant.                                       defense of exoneration to avoid liability
    On December 22, 2003, the State               for a bail bond under the following
again presented certified copies of the           circumstances only:
judgment nisi and the bail bond executed
by Kubosh, Casas, and Raul Ruvalcaba.                      [*159] (a) The following
After the trial court admitted the State's              [**6] causes, and no other,
exhibits over Kubosh's objections that                  will exonerate the defendant
the State had failed to comply with his                 and his sureties, if any, from
discovery motions, the State rested.                    liability upon the forfeiture
Kubosh attempted to offer exhibits                      taken:
related to the State's extradition policies,                1. That the bond is, for any
[**5] but the trial court ruled that the                cause, not a valid and binding
exhibits were inadmissible. The trial                   undertaking in law. If it be
court ruled in favor of the State and                   valid and binding as to the
signed a final judgment of forfeiture                   principal, and one or more of
against Kubosh, Casas, and Ruvalcaba,                   his sureties, if any, they shall
jointly and severally, on the full amount               not be exonerated from
of the bond plus costs of court. 3                      liability because of its being
                                                        invalid and not binding as to
                                                        another surety or sureties, if
   Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)



any. If it be invalid and not                     indictment or information,
binding as to the principal,                      and the prosecution has not
each of the sureties, if any,                     been continued by order of
shall be exonerated from                          the court.
liability. If it be valid and
binding as to the principal,
but not so as to the sureties, if           TEX. CODE CRIM. PROC. ANN. art.
any, the principal shall not be             22.13(a) (Vernon Supp. 2004-2005); see
exonerated, but the sureties, if            Spradlin v. State, 100 S.W.3d 372, 379
any, shall be.                              (Tex. App.--Houston[1st Dist.] 2002, no
   2. The death of the                      pet.).
principal before the forfeiture                Article 22.13(a)'s four enumerated
was taken.                                  causes provide the sole bases by which a
    3. The sickness of the                  defendant and his sureties may be
principal         or     some               exonerated upon forfeiture of a bond.
uncontrollable circumstance                 See id. (The following causes, and no
which         prevented     his             other. . . .) (emphasis added); Lyles v.
appearance at court, and it                 State, 587 S.W.2d 717, 717 (Tex. Crim.
must, in every such case, be                App. 1979); Rodriguez v. State, 673
shown that his failure to                   S.W.2d 635, 636 (Tex. App.--San
appear arose from no fault on               Antonio 1984, no writ).
his     part.     The   causes                  When asked by the trial court
mentioned in this subdivision               whether he had a binding agreement
shall not be deemed sufficient              with Casas, or whether he would be
to exonerate the principal and              presenting any evidence that they did not
his sureties, if any, unless                have a binding agreement, Kubosh
such principal appear before                responded, "I'm not presenting any
final judgment on the bond to               evidence on that issue, your honor.
answer the accusation against               [**8] " When asked further if he would
[**7] him, or show sufficient               be presenting evidence on any of the
cause for not so appearing.                 three other affirmative defenses
   4. Failure to present an                 available under article 22.13, Kubosh
indictment or information at                responded, "no." We conclude that
the first term of the court                 Kubosh presented no evidence of an
which may be held after the                 affirmative defense that would exonerate
principal has been admitted to              himself from liability upon the forfeiture
bail, in case where the party               of the bond under Chapter 22 of the
was bound over before                       Code of Criminal Procedure.
        Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)



    Although Kubosh does not dispute                   release the principal because of
that the State met the statutory                       contractual consideration between
requirements of the judgment nisi, he                  the State and the surety, but
claims that he asserted defenses of                    because of constitutional and
failure of consideration and legal excuse,             statutory rights of the principal. Id.;
in accordance with rule 94 of the Rules                TEX. CONST. art. I, § 11; TEX.
of Civil Procedure, and that, because of               CODE CRIM. PROC. ANN. art.
these affirmative defenses, the bond is                1.07 (Vernon 1977).
"not a valid undertaking in law" under               After a forfeiture has been declared
article 22.13(a)(1) of the Code of               on a bond, the case is placed on the civil
Criminal Procedure. TEX. CODE                    docket with the State of Texas as the
CRIM. PROC. ANN. art. 22.13(a)(1)                [**10] plaintiff, and the defendant and
(Vernon Supp. 2004-2005). Kubosh                 any sureties as defendants. TEX. CODE
further contends that civil law of               CRIM. PROC. ANN. art. 22.10 (Vernon
contract applies 4 [*160] because the            Supp. 2004-2005). A bond forfeiture
bail bond is a three-way contractual             action is a criminal proceeding that
agreement among the State, the principal         utilizes the Rules of Civil Procedure. Id.
defendant, and the bail-bond surety,             (stating that a bond-forfeiture case is
which requires that the State take               governed by same rules governing other
reasonably timely steps to secure the            civil suits); State v. Sellers, 790 S.W.2d
issuance of provisional [**9] warrants           316, 321 (Tex. Crim. App. 1990). The
for the arrest of bond-skipping                  civil rules apply procedurally, however,
defendants who flee the country.                 and not substantively. See Sellers, 790
                                                 S.W.2d at 321. Article 22.10 does not
     4     We disagree with Kubosh's             transform a bond forfeiture proceeding
     contention that the State is a party        from a criminal case into "a civil case."
     to the bail-bond contract. The bond         Sellers, 790 S.W.2d at 321.
     is "a written undertaking entered
     into by the defendant and his                  "It is well-settled that the State's case
     sureties. . ." TEX. CODE CRIM.              in a bond-forfeiture proceeding consists
     PROC. ANN. art. 17.02 (Vernon               of the bond and the judicial declaration
     1977); Rodriguez v. State, 673              of the forfeiture of the bond, which is
     S.W.2d 635, 640 (Tex. App.--San             the judgment nisi. Once this has been
     Antonio 1984, no writ). The                 established, the defendant must then
     sureties agree to assume the bond           prove that one of the elements has not
     obligation     in     return     for        been complied with." Tocher v. State,
     consideration, usually a fee, paid          517 S.W.2d 299, 301 (Tex. Crim. App.
     by the principal. Rodriguez, 673            1975); Spradlin, 100 S.W.3d at 377;
     S.W.2d at 640. The State does not           McCluskey v. State, 64 S.W.3d 621, 623
         Kubosh v. State,177 S.W.3d 156 (Tex. App.-Houston [1st Dist.] 2005, pet. ref’d)



(Tex. App.--Houston [**11] [1st Dist.]                Kubosh's complaints concerning
2001, no pet.).                                   discovery all pertain to his contention
    By presenting the bond and the                that [**12] the contract was invalid
judgment nisi to the trial court, the State       under defenses recognized by the Civil
made a prima facie case for forfeiture of         Rules of Procedure, which we have
the bond. See Alvarez v. State, 861               rejected above. A trial court does not err
S.W.2d 878, 881 (Tex. Crim. App. 1992).           by excluding evidence if the evidence
The burden then shifted to Kubosh, who            does not show that the accused is
had the burden to either (1) prove that           entitled to the defense to which it
the State did not satisfy one of the              applies. Reed v. State, 794 S.W.2d 806,
statutory requirements of the judgment            809-11 (Tex. App.--Houston [14th Dist.]
nisi, or (2) raise a fact issue on his            1990, pet. ref'd). Thus, any discovery
affirmative defense of exoneration. Id.           related to equitable affirmative defenses
at 881; Hill v. State, 955 S.W.2d 96,             not recognized under article 22.13
100-01 (Tex. Crim. App 1997).                     [*161] is irrelevant. See In re Am.
                                                  Optical Corp., 988 S.W.2d 711, 713, 41
   We conclude that the defenses listed           Tex. Sup. Ct. J. 1146 (Tex. 1998)
in rule 94 of the Texas Rules of Civil            (holding that discovery requests must be
Procedure do not apply to a bond                  reasonably tailored to include only
forfeiture proceeding, and thus hold that         matters relevant to the case).
the trial court did not err by finding that
Kubosh was liable for the bail bond.                  We overrule Kubosh's issues
                                                  concerning the trial court's discovery
   We overrule Kubosh's first issue.              rulings.

State's Failure       to   Comply       with      Conclusion
Discovery
                                                     We affirm the judgment of the trial
   In his remaining issues, Kubosh                court.
challenges the State's alleged failure to
comply with his discovery requests                    Elsa Alcala
concerning his claimed "affirmative                   Justice
defenses" of failure of consideration and
legal excuse.
                   Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)




            VERNON P. LYLES, et. al, Appellant v. THE STATE OF
                          TEXAS, Appellee

                                     No. 1302-91

                COURT OF CRIMINAL APPEALS OF TEXAS

                 850 S.W.2d 497; 1993 Tex. Crim. App. LEXIS 29

                            February 3, 1993, Delivered

SUBSEQUENT HISTORY:                 [**1]
As Corrected March 8, 1993.                    [*498]  OPINION ON  STATE'S
                                               PETITION FOR DISCRETIONARY
PRIOR HISTORY:             Petition for        REVIEW
Discretionary Review from the Tenth                This is a criminal bail bond forfeiture
Court of Appeals. (Robertson County)           case. The State petitioned this Court for
                                               review on two grounds, one of which we
                                               granted in order to determine the
COUNSEL: For Appellant: Carolyn                constitutionality of TEX. CODE CRIM.
Findley Price, Arlington, Tx. G. P. (Pat)      PROC. ANN. Art. 22.16(a). Although we
Monks, Houston, Tx.                            find 22.16(a) unconstitutional because it
                                               utilizes the provisions of TEX. CODE
For State: Jimmie McCullough, C. A.,           CRIM. PROC. ANN. Art.22.16(c), we
Franklin, Tx. Robert Huttash, State's          will reverse the Court of Appeals on
Attorney, Austin, Tx.                          other grounds.
JUDGES: En Banc. White, Judge,                    Initially, we will address whether
Clinton, Judge concurring opinion,             subsection (a) is constitutional since it
Campbell, Judge joined by Maloney,             was a ground on which we initially
Judge concurring in part & dissenting in       granted review. However, the ultimate
part, Baird, Judge dissenting opinion          disposition of this case will hinge on our
                                               prior decision in Makeig [**2] v. State,
OPINION BY: WHITE                              830 S.W.2d 956 (Tex. Crim. App. 1992),
                                               adopting the decision and reasoning of
OPINION                                        the Court of Appeals in Makeig v. State,
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



802 S.W.2d 59 (Tex.App. - Amarillo              set by Subsection (c) of this article, the
1990). We will therefore address Article        court shall, on written motion, remit to
22.16(a) and then resolve the instant           the surety the amount of the bond after
case.                                           deducting the costs of court, any
    This matter arose out of a bond             reasonable costs to the county for the
forfeiture in the Robertson County              return of the principal, and the interest
Court. Vernon P. Lyles, a professional          accrued on the bond amount as provided
bondsman, was the surety on a $ 1500            by Subsection (e) of this article if:
bond with Thomas Earl Marks as its                 (1) the principal is incarcerated in the
defendant-principal. Marks failed to            county in which the prosecution is
appear in court on December 7, 1989, on         pending;
a misdemeanor property offense and                 ...
judgment nisi was entered. Marks was
rearrested on December 16 and placed in            Art. 22.16(c) provides:
the Robertson County jail. On February             (c) A final judgment may be entered
7, 1990, final judgment was entered by          against a bond not earlier than:
the trial court. Respondent filed his
                                                   (1) nine months after the date the
motion to remit the full amount of the
                                                forfeiture was entered, if the offense for
bond on March 6, 1990, along with a
                                                which the bond was given is a
motion to vacate or modify the final
                                                misdemeanor; or
judgment entered against the bond. The
trial court denied his motions.                    (2) 18 months after the date the
                                                forfeiture was entered, if the offense for
    Respondent Lyles appealed to the
                                                which the bond was given is a felony.
Tenth Court of Appeals raising six
points of error. [*499] The Court of               Article 22.16(a) is at issue because it
Appeals sustained the three points which        is dependent upon timeframes provided
addressed remittitur of the bond and            for in 22.16(c). Article 22.16(c) has been
therefore reversed the judgment of the          held unconstitutional by this Court in
trial court in a published opinion. Lyles       State v. Matyastik, [**4] 811 S.W.2d
v. State, [**3]        814 S.W.2d 411           102 (Tex.Cr.App. 1991) and Armadillo
(Tex.App.-Waco 1991). The question              Bail Bonds v. State, 802 S.W.2d 237
raised in the Court of Appeals and in this      (Tex.Cr.App. 1990).
Court is the constitutionality of Art.             Article 22.16(c) was first addressed
22.16(a).                                       by this Court in Armadillo Bail Bonds v.
   Art. 22.16(a) provides in pertinent          State, 802 S.W.2d at 237. Our analysis in
part:                                           Armadillo Bail Bonds began by
                                                recognizing that a violation of the
   (a) After forfeiture of a bond and
                                                separation of powers provision of the
before the expiration of the time limits
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



State Constitution occurs when one              Matyastik, 811 S.W.2d at 104. This issue
branch of government unduly interferes          arose because Article 22.16(a) refers to
with another branch's exercise of its           22.16(c) in the body of the statute. Art.
constitutionally assigned powers. Id., at       22.16(a) provides in pertinent part:
239. Since the ability to enter final              After forfeiture of a bond and before
judgments is a "core power" of the              the expiration of the time limits set by
judiciary, we found that the legislature        Subsection (c) of this article, the court
unduly interfered with the exercise of          shall . . . (emphasis added).
this power by passing a statute which
suspended the entrance of a final                   [*500] In our analysis in Matyastik,
judgment for up to a year and a half. Id.,      we were careful to note that if one part
at 241. Thus, the statute was found to be       of a statute is held unconstitutional, "the
a violation of the separation of powers         remainder of the statute must be
provision since it allowed the legislature      sustained if it is complete in itself [**6]
to usurp a judicial function. Id.               and capable of being executed in
                                                accordance with the intent wholly
    In State v. Matyastik, this Court           independent of that which has been
applied the reasoning announced in              rejected." Matyastik, 811 S.W.2d at 104,
Armadillo Bail Bonds to find section            quoting Tussey v. State, 494 S.W.2d 866,
(c)(1) of the statute unconstitutional.         870 (Tex.Cr.App. 1973). However, this
State v. Matyastik, 811 S.W.2d at 102.          Court found that subsection (a) is
Where section (c)(2) addresses felonies,        contingent upon the time limitations set
section (c)(1) of the statute [**5]             forth in subsection (c). Matyastik, 811
prohibits the court from entering final         S.W.2d at 104. Therefore, we held that
judgment in a misdemeanor case until            the portion of subsection (a) that utilizes
nine months after forfeiture. Because of        subsection (c) is invalid under Article 2,
the similar time requirement, (c)(1) was        Section 1 of the Texas Constitution since
also found to be a legislatively imposed        subsection (a) cannot be executed or
statutory restraint on a trial court's          have any effect without utilizing the
ability to enter final judgments. Id., at       provisions of subsection (c). Id.
104. The reasoning in Armadillo Bail
Bonds was therefore extended to also                  1 After the holdings in Armadillo
hold section (c)(1) unconstitutional as a             and Matyastik, Article 22.16(c)
violation of the separation of powers                 was considered unconstitutional in
provision of the State Constitution. Id.              its entirety. Some confusion has
   Having          found          22.16(c)            arisen on this issue by our adoption
                   1
unconstitutional , this court then                    of the Court of Appeals decision in
considered in Matyastik whether Art.                  Makeig v. State, 802 S.W.2d 59
22.16(a) also interfered with the court's             (Tex.App. - Amarillo 1990). In the
exercise of the judicial function. State v.           opinion, there is a reference that
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



     the 22.16(c) timeframes must                   language ". . . and before the
     expire before 22.16(d) applies. We             expiration of the time limits set by
     held 22.16(c) unconstitutional in              Subsection (c) of this article . . ."
     Armadillo and Matyastik and                [**8]
     therefore 22.16(c) should not                  3      In his dissent, Judge Baird
     control the applicability of                   disagrees that Matyastik held that
     22.16(d). It was not our intention to          remittitur is now discretionary with
     reverse these decisions by adopting            the court at anytime prior to entry
     Makeig.                                        of a final judgment. Instead, he
     [**7] This Court is now asked to               believes Matyastik actually stated
determine whether subsection (a) is to be           that mandatory, rather than
read without reference to subsection (c)            discretionary, remittitur may be
2
  , or, alternatively, find the entire              done at anytime before entry of a
subsection invalid. We believe that the             final judgement. The exact
latter is the correct interpretation. As            language in Matyastik was as
was noted in Matyastik, subsection (a) is           follows:
contingent upon the time limitations                      "Because subsection (a) cannot
established in subsection (c). Subsection             be executed or have any effect
(a) is dependent upon subsection (c) to               without utilizing the provisions of
establish the timeframes for mandatory                subsection (c), we hold that the
remittitur. Without these deadlines,                  portion     of     Art.     22.16(a),
remittitur of a forfeited bond would be               V.A.C.C.P., utilizing subsection (c)
mandatory at any time after the                       is invalid under Article 2, § 1 of the
forfeiture because there is no "judgment"             Texas Constitution. Thus, remittitur
provision      in      subsection     (a).            now may be done anytime between
Consequently, subsection (a) cannot be                forfeiture and entry of a final
executed or have any effect without the               judgment."
invalid provisions.       Matyastik, 811                 Respectfully, we would point
S.W.2d at 104. Subsection (a) is thus                 out that the term "mandatory" is
void. We therefore hold that mandatory                not used in the passage. Since
remittitur provisions of 22.16(a) are no              remittitur was mandatory by virtue
longer valid. Remittitur may instead be               of the time limitations in
done at the trial court's discretion at               subsection (c), it follows that it is
anytime before entry of a final                       no longer mandatory if the time
judgment. 3 TEX. CODE CRIM. PROC.                     limitations are eliminated. This
ANN. Art. 22.16(d).                                   proposition is further supported by
                                                      the use of the discretionary
     2     More specifically in Article               language "remittitur now may be
     22.16(a), the reference made by the              done." In the absence of mandatory
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



     provisions, we believe that                the reference to subsection [*501] (c),
     discretionary remittitur as found in       an       unconstitutional       provision.
     Article 22.16(d) is the logical            Alternatively, 22.16(d), even if read
     successor.                                 without reference to subsection (c),
     [**9] Additional support for this          provides for entry of final judgment.
holding is found in Article 22.16(d).           Given this distinction, it is obvious that
Article 22.16(d) permits a trial court, in      22.16(d) should survive even though
its discretion, to remit a bond before the      22.16(a) is invalid.
entry of a final judgment. If subsection            Article    22.16(c)    violates     the
(a) is to be read without reference to the      separation of powers provision of the
time limitations of subsection (c), the         Texas Constitution because it imposes
trial court would no longer have this           time limits which prevent a court from
discretion. The trial court would have to       entering a final judgment. Although
remit the amount of the bond upon               22.16(a) does not provide for entry of a
written motion of the surety. Such a            judgment of any kind, a reading of
reading would render subsection (d)             22.16(a) to provide for mandatory
impotent. When construing statutes that         remittitur at anytime prior to final
appear to be in conflict, the two should        judgement would violate the separation
be harmonized where possible. TEX.              of powers provision. Such a reading
GOV'T CODE ANN § 311.025(b); Ex                 would statutorily mandate a trial court to
Parte Choice, 828 S.W.2d 5, 7                   remit a bond at anytime prior to entry of
(Tex.Cr.App. 1992); Lindsey v. State,           a final judgment, thereby legislatively
760 S.W.2d 649, 654 (Tex.Cr.App.                removing a trial court's discretion.
1988); Stanfield v. State, 718 S.W.2d           However, enforcement of 22.16(d) does
734, 736 (Tex.Cr.App. 1986). It would           not violate the separation of powers
therefore be improper to interpret              provision since it leaves discretion in the
22.16(a) in a manner which would                trial court to remit a forfeited bond at
remove the discretion given to the trial        anytime prior to entry of a final
court in Article 22.16(d).                      judgment.
   Furthermore, a most important                   We pause here to answer Judge
distinction can be made between                 Campbell's concerns. He argues [**11]
22.16(a)      and     22.16(c)     which        in his dissent that if 22.16(a) is invalid
demonstrates       that     discretionary       because of the reference to Article
remittitur should continue. Contrary to         22.16(c), 22.16(d) must also be invalid
the position advocated by the dissents,         because it too utilizes 22.16(c). We
subsection (a) does not have a provision        would distinguish 22.16(d) by pointing
for any kind of judgment [**10] to be           out that, unlike 22.16(a), 22.16(d) is a
entered.     Final    judgment      under       discretionary provision. Article 22.16(d)
subsection (a) can only be entered via          provides:
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



   After the expiration of the time limits          In our view, Article 22.16(a) cannot
set by Subsection (c) of this article and       have any effect without utilizing the
before the entry of a final judgment            invalid provisions of 22.16(c). We
against the bond, the court in its              therefore hold that Article 22.16(a) is
discretion may remit to the surety all or       void; however, this subsection is not
part of the amount of the bond after            controlling in the disposition of the case
deducting the costs of court, any               at bar.
reasonable costs to the court for the               We now turn to the instant case. The
return of the principal, and the interest       facts before us in this matter are almost
accrued on the bond amount as provided          identical to those in Makeig v. State, 830
by Subsection (e) of this article.              S.W.2d 956 (Tex.Crim.App. 1992),
   Unlike 22.16(a), 22.16(d) can be read        adopting opinion 802 S.W.2d 59
absent the reference to 22.16(c) without        (Tex.App. - Amarillo 1990). In Makeig,
a separation of powers problem that is          a judgment nisi was entered on June 19,
encountered with 22.16(a). When                 1989 after the principal failed to appear
22.16(d) is so read, remittitur remains         in court on a felony offense. Id. at 60.
discretionary with the court anytime            Final judgment was then entered
before final judgment. It does not              approximately three months later.
become mandatory at any time after              [**13] Id. at 61. The appellant made a
forfeiture as it does when 22.16(a) is          motion for remittitur of a $ 50,000 bond
read without reference to the 22.16(c)          approximately one month after final
timeframes.                                     judgment was entered. Id. at 61. The
    As we have said previously in this          trial court granted the appellant's motion
opinion, subsection (a) does not provide        and returned $ 25,000, less costs of suit,
for any type of judgment [**12] to be           even though the motion was made after
entered.     Consequently,     mandatory        final judgment. Id. at 61.
remittitur could continue in perpetuity if          In reviewing the remittitur, the Court
the subsection (c) timeframes are not           of Appeals held that the trial court did
utilized. If any of the five conditions         not err by entering final judgment before
under       22.16(a)(1)-(5)     (principal      the expiration of the time frames in
incarcerated in county in which the             Article 22.16(c) since this subsection of
prosecution is pending, principal               the statute had previously been held
deceased, etc.) are ever met, the trial         unconstitutional by this court. Id. at 61-
court would be forced to remit the bond         62. Appellant also argued that the trial
no matter when the condition is                 court erred by failing to apply the
satisfied.   Given      that   mandatory        discretionary remittitur portion of the
remittitur was originally intended to           statute, Article 22.16(d). Id. at [*502]
occur within a limited time, we do not          62. The Court of Appeals correctly
believe this was the intended result.           recognized that 22.16(d) directs
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



discretionary remittitur when final             remit the $ 1,500 bond in the instant
judgment has not been entered. Id. Since        case was an abuse of this discretion.
final judgment had already been entered,           In determining whether there has
the Court of Appeals held that 22.16(d)         been an [**15] abuse of discretion, it
did not apply. Id.                              must be determined if the court acted
    The Court of Appeals found support          without reference to any guiding rules
in two areas for the trial court's decision     and principles, or, in other words,
to partially remit the bond. First, the         whether the court acted arbitrarily or
Court of Appeals held that since the            unreasonably. Makeig, 802 S.W.2d at
motion for remittitur had [**14] been           62; Montgomery v. State, 810 S.W.2d
made within 30 days of the judgment, it         372, 380 (Tex.Crim.App. 1990). Article
was within the trial court's plenary            22.17 contains no guidelines for the
power to reform the judgment.                   exercise of the court's discretion.
Tex.R.Civ.Pro. 329(b). Additionally, the        Makeig, 802 S.W.2d at 62.
Court of Appeals held that the power to            An abuse of discretion may exist
partially remit the bond was also found         when there is a showing of sufficient
in Article 22.17, TEX. CODE CRIM.               cause for the accused's failure to
PROC. ANN. This article provides for a          comply. See Makeig, supra at 62.
two year special bill of review that            However, mere subsequent appearance
enables a surety to request, on equitable       by the accused is not sufficient cause for
grounds, the reform of a final judgment         complete remission of the forfeiture. Id.,
and remittitur of the bond amount.              at 62. Sufficient cause is generally a
Under this Article, the decision to grant       showing that the party did not break his
or deny the bill is entirely within the         recognizance intentionally with the
discretion of the trial court. The request      design of evading justice, or without a
may be granted in whole or in part. Art.        sufficient cause or reasonable excuse,
22.17(a).                                       such as unavoidable accident or
   In the instant case, final judgment          inevitable necessity preventing his
was entered on February 7, 1990.                appearance. Id., at 62-63. Although
Appellant did not make a motion for             resulting extreme hardship on the surety
remittitur until March 6, 1990. Since           may be considered, a balancing
final judgment had already been entered,        consideration     may      be     whether
discretionary remittitur under article          compensation was received by the surety
22.16(d) did not apply. However, the            for taking the risk. Id., at 62-63. While
court's decision to remit part of the bond      not seeking to punish the surety for
was      within    its    power      under      [**16] the principal's failure to appear,
Tex.R.Civ.Pro 329b and Art. 22.17 Tex.          the law does contemplate that such
Code Crim. Pro. We must now                     noncompliance will result in forfeiture
determine whether the decision to not           of the bond amount. Id. These factors,
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



material to the court's decision before         charge. Under these circumstances, we
final judgment, continue to be pertinent        cannot say that it was an abuse of
while the judgment is subject to the            discretion for the trial court to deny
court's plenary powers of reformation.          appellant's motion to remit the $ 1,500
Id., at 63.                                     bond.
    In Makeig, the Court of Appeals                Since the partial remittitur was
found that there had not been a showing         clearly within the power of the court and
of sufficient cause or reasonable excuse        there was no abuse of discretion in the
for the accused's absence. Makeig,              exercise of this power, the judgment of
supra at 63. Since the trial court              the Court of Appeals is reversed and the
remitted $ 25,000, less costs, of a $           judgment of the trial court is affirmed.
50,000 bond, the Court of Appeals could         On the issue presented for our review,
not find an abuse of discretion. Id. In         we       hold       Article      22.16(a)
doing so, the Court of Appeals found the        unconstitutional because it relies on the
following facts important: 1) the trial         invalid provisions of 22.16(c).
court had remitted more than seven                 WHITE, Judge
times the surety's actual costs ($ 3,475)
in attempting to locate her client; 2)             (Delivered February 3, 1993)
there had been no showing of sufficient            En Banc
cause for the principal's absence; 3) the
principal had not been apprehended              CONCUR       BY:             CLINTON;
through the efforts of the surety; and, 4)      CAMPBELL (In Part)
the surety had received compensation
for the risk it endured under the bond.         CONCUR
Id.
                                                  CONCURRING     OPINION             ON
    In    the     instant    case,     the      STATE'S     PETITION                FOR
appellant/surety has not demonstrated           DISCRETIONARY REVIEW
that any costs were incurred in
                                                    Because      Article     22.16(c)(2),
attempting to locate [**17]            the
                                                V.A.A.C.P., "requires that the Judiciary
principal. There is no evidence from the
                                                refrain from exercising [**18] a part of
record that there was sufficient cause for
                                                its core power for a period of a year and
the principal's absence on appearance
                                                a half," and thus "unduly interferes with
day. Additionally, there is no evidence
                                                the Judiciary's effective exercise of its
that     [*503]      the principal was
                                                constitutionally assigned power," the
apprehended as the result of the efforts
                                                Court held it invalid under Article II, §
of the surety. While there is no evidence
                                                1, Constitution of The State of Texas, in
of the amount of the bonding fee
                                                Armadillo Bail Bonds v. State, 802
assessed by surety against the principal,
it is unlikely that it was done free of
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



S.W.2d 237, at 241 (Tex.Cr.App. 1990).          court shall . . . ." First, he recalled the
1
                                                settled rule that "if one part of a statute
                                                is held unconstitutional, the remainder of
     1       Conforming to procedure            the statute continues to be valid;" he
     prescribed in germane provisions           then noted that "subsection (a) is
     of Chapter Twentytwo, the trial            contingent upon the time limitations
     court entered judgment nisi, surety        established in subsection (c), and thus
     answered to show cause, the court          has no effect without the invalid
     found no good cause and made the           provisions." Drawing from a recent
     judgment final -- all prior to             opinion of this Court that "the remainder
     expiration of eighteen months;             of the statute must be sustained if it is
     surety filed a motion for new trial        complete within itself and capable of
     relying on the bar in Article              being executed in accordance with the
     22.16(c)(2), and the trial court           intent wholly independent of that which
     denied relief. The Dallas Court of         has been rejected," Judge Miller
     Appeals affirmed the judgment on           concluded [**20] for the Court:
     the ground that the prohibition is
     invalid under Article II, § 1.             ". . . Because subsection (a) cannot be
     Armadillo Bail Bonds, supra, at            executed or have any effect without
     238. As reported in the text above,        utilizing the provisions of subsection (c),
     this Court agreed and affirmed the         we hold that the portion of Art. 22.16(a),
     judgment of the court of appeals.          V.A.C.C.P., utilizing subsection (c) is
    Because       Article    22.16(c)(1),       invalid under article 2, § 1 of the Texas
V.A.C.C.P., "prohibits [**19] the court         Constitution. [note omitted]. Thus,
from entering a final judgment in such a        remittitur now may be done anytime
case for a nine month period," the Court        between forfeiture and entry of a final
extended the reasoning and holding in           judgment."
Armadillo Bail Bonds, supra, to
misdemeanor cases, and held subsection           Id., at 164. 3 While it is not free from
(c) (1) unconstitutional as well, in State      doubt, since the Court announced at the
v. Matyastik, 811 S.W.2d 102, at 104            outset [*504] that it was finding
(Tex.Cr.App. 1991). 2 Turning to                "Article      22.16(a)     and      (c)(1)
determine "whether the same is true of          unconstitutional," id., at 102, we may
Art. 22.16(a)," for the Court, Judge            take the underscored sentence to mean
Miller underscored the pertinent                "discretionary" remittitur, taking into
statutory language under consideration,         account whether one or more
viz: "(a) After forfeiture of bond and          enumerated conditions in the remainder
before the expiration of the time limits        of subsection (a) is satisfied. See also
set by Subsection (c) of this article, the      Article 22.13, V.A.C.C.P.
                  Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



                                                        That is to say, the court of
    2 As in Armadillo Bail Bonds so                 appeals erred in upholding
    also in State v. Matyastik, all                 constitutionality of the mandatory
    proceedings from forfeiture of bail             remittitur provision in subsection
    to grant of remittitur occurred                 (a), and the trial judge erred in the
    within the time limits set by                   belief that the court was statutorily
    subsection (c). Unlike the outcome              mandated to order remittitur in full
    of proceedings in Armadillo Bail                before expiration of the nine month
    Bonds, however, in State v.                     limitation.
    Matyastik, supra, after the trial             Because we reviewed the "decision"
    court rendered judgment nisi, later       of the court of appeals in Makeig v.
    made the judgment final and surety        State, 802 S.W.2d 59 (Tex.App. --
    moved for remittitur relying in part      Amarillo 1990), found its "reasoning is
    on Article 22.16(a)(1), the trial         sound" and "adopt[ed] the opinion as our
    court ordered remittitur in full; the     own without further comment" in
    State filed a motion to vacate the        Makeig v. State, 830 S.W.2d 956
    order which the trial court denied.       (Tex.Cr.App. 1992), perhaps without
    The Waco Court of Appeals found           noticing that the Amarillo Court of
    Article 22.16 "constitutional in its      appeals did not have whatever guidance
    entirety," and affirmed the               [**22] might have been provided by our
    judgment below. Matyastik, supra,         opinion in State v. Matyastik, supra, as
    at 102-103.                               the majority here seems to suggest in its
       All    emphasis      here   and        opinion at 3, n. 1, we may well have
    throughout this opinion is mine           "rushed to judgment." For reasons
    unless otherwise indicated.               developed in the margin, however, my
[**21]                                        view is that the Makeig court of appeals
    3    In his separate opinion Judge        did not implicate validity or application
    Campbell characterizes our holding        of Article 22.16(d) in any manner
    as stated "cryptically," following        inconsistent with our prior cases,
    "somewhat oblique discussion."            including Matyastik. 4
    Slip opinion at 2 and 3,
    respectively. My own view is that               4 In Makeig v. State, supra, the
    whatever ambiguity may be seen in               surety on a $ 50,000 bond was
    the formulation is removed by the               certain enough that the principal
    judgment of this Court, viz:                    would not appear for a scheduled
       "The judgment of the court of                hearing that he spent some $ 3,000
    appeals [affirming that of the trial            to find and surrender him under a
    court] is reversed and the remittitur           warrant pursuant to Articles 17.16-
    order of the trial court is vacated."           17.19, V.A.C.C.P., but was not
               Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



successful; the trial court forfeited            the time limits set by Subsection
bail, entered judgment nisi in June              (c) and before entry of final
and made the judgment final on                   judgment against the bond." The
September 8; principal was later                 court of appeals overruled that
arrested in another state and surety             point, reasoning that since eighteen
paid the costs to transport back to              months had not expired and final
the     county     of    prosecution             judgment had already been entered
September 21; principal plead                    before the remittitur hearing,
guilty and was sentenced to ten                  therefore,    "by     their   terms,
years confinement; on October 5,                 subsections (d) and (e) were not
surety moved for mandatory                       applicable     to     the    present
remittitur after forfeiture in full,             circumstance, and the court's
less costs and interest pursuant to              actions cannot be judged by their
Article 22.16(a)(1) and (2); on                  provisions." Id., at 62.
November 2, the trial court granted                  Fourth, and alternatively, in
partial remittitur in the sum of $               abusing its discretion by refusing to
25,000, less costs of suit. Id., at 60-          order sufficient remittitur. The
61.                                              court of appeal found that neither
   On appeal, as well as point of                subsections (a) or (d) applied, and
error two claiming the bond was                  overruled that point for reasons
invalid, surety contended the trial              dehors the statute, viz: the trial
court erred in three other                       court retained "plenary power to
particulars:                                     reform its judgment" under
    First, in entering final judgment            Tex.R.Civ.Pro. 329b (a), (e) and
earlier than eighteen months after               (g), and the motion or remittitur
forfeiture, on impliedly finding                 being filed timely may be treated
Article 22.16(c)(2) unconstitutional             as a special bill of review under
on the strength of Armadillo Bail                Article 22.17, V.A.A.C.P.; on
Bonds v. State, 772 S.W.2d 193                   either basis, the trial court did not
(Tex.App. -- Dallas 1989). The                   abuse its discretion. Id., at 62-63.
court of appeals overruled that                     Therefore, in affirming the
point on the basis of our decision in            judgment below the court of
Armadillo Bails Bonds, supra. Id.,               appeals did not treat the
at 61-62.                                        constitutional viability of Article
   Third, in refusing to remit a                 22.16(d) and (e), although the State
portion of forfeited bail in                     took the position both are invalid
accordance with Article 22.16(d)                 (Appellee's Brief on PDR, at 2).
and (e), i.e., "after the expiration of
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



    [**23] Therefore, as I understand               For those reasons I join the judgment
the legal consequences of those three           of the Court.
decisions of this Court, the following             CLINTON, Judge
parts of Article 22.16 have been
declared unconstitutional: all but the             DELIVERED: February 3, 1993
enumerated conditions in subsection (a);           EN BANC
5
  all of subsection (c); the portion of
subsection (d) reading "After the               DISSENT BY: CAMPBELL (In Part);
expiration of the time limits set by            BAIRD
Subsection (c) of this article and . . . ."
                                                DISSENT
     5      That part of the qualifying
     condition reading "After forfeiture        CONCURRING AND DISSENTING
     of a bond" is not included in the          OPINION ON STATE'S PETITION
     language declared unconstitutional         FOR DISCRETIONARY REVIEW
     in Matyastik is of no practical
                                                   CAMPBELL, J.
     moment. The issue of remittitur
     cannot arise until after bail is              We granted review of this cause,
     forfeited. See, e.g., Articles 22.01,      pursuant to Texas Rule of Appellate
     22.02, 22.10, 22.11, 22.125 and            Procedure 200(c)(1), to determine
     22.14.                                     whether the court of appeals erred in
                                                holding that the trial court erred in
    Accordingly, before entry of final
                                                refusing to remit the full amount of a
judgment the trial court in its discretion
                                                bond to the surety. I agree with the
may remit "all or part of the amount of
                                                majority's conclusion that the court of
the bond," after making appropriate
                                                appeals erred, but I disagree completely
deductions prescribed by statute. Article
                                                with the majority's reasoning.
22.16(d) and (e).
                                                    I first review the relevant facts.
    [*505]       In the instant cause,
                                                Thomas Earl Marks, charged in
however, appellant did not move for
                                                Robertson County with a misdemeanor,
remittitur until after the judgment nisi
                                                failed to appear for trial on December 7,
[**24] was made final. In this situation
                                                1989. On that date the trial court
alternative remedies noticed by the court
                                                rendered judgment nisi for the State and
of appeals in Makeig v. State become
                                                against Marks and his surety, Vernon
available, and the majority opinion
                                                Lyles, jointly and severally, in the
properly addresses them and ultimately
                                                amount [**25] of Marks' bond. On
concludes the trial court did not abuse its
                                                December 16, 1989, Marks was re-
discretion in refusing remittitur.
                                                arrested and placed in the Robertson
                                                County Jail. On February 7, 1990, the
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



trial court rendered final judgment             remained an effective statute except for
against the bond. On March 6, 1990,             its reference to subsection (c). The court
Lyles filed a motion to modify or vacate        of appeals was surely wrong, however,
the final judgment and a second motion          when it concluded that Lyles was
for remittitur of the full amount of the        entitled to remittitur even though he
bond under Texas Code of Criminal               filed his motion for remittitur after the
Procedure article 22.16(a). The trial           trial court rendered final judgment.
court denied both motions.                         Article 22.16 provides in relevant
    The Tenth Court of Appeals                  part:
subsequently reversed, holding that the            (a) After forfeiture of a bond and
trial court "should have vacated or             before the expiration of the time limits
modified its February 7, 1990, [final]          set by Subsection (c) of this article, the
judgment and granted remittitur in              court shall, on written motion, remit to
accordance with art. 22.16(a)." Lyles v.        the surety the amount of the bond . . . if:
State, 814 S.W.2d 411, 412 (Tex.App.--
Waco 1991). The court of appeals, citing           (1) the principal is incarcerated in the
State v. Matyastik, 811 S.W.2d 102              county in which the prosecution is
(Tex.Cr.App. 1991), reasoned first that,        pending;
except for its reference to subsection (c),        ***
Article 22.16(a) remained an effective
                                                   (c) A final judgment may be entered
statute requiring remittitur if requested
                                                against a bond not earlier than:
before final judgment. The court
reasoned second that Lyles was entitled            (1) nine months after the date the
to remittitur under Article 22.16(a)            forfeiture was entered, if the offense
"even though (he) presented his request         [**27] for which the bond was given is
for remittitur after final judgment             a misdemeanor; or
because (1) his response to the (State's)          (2) 18 months after the date the
motion for summary judgment made                forfeiture was entered, if the offense for
[**26] such a request and (2) at the time       which the bond was given is felony.
final judgment was entered he could
have relied on the nine-month-delay                (d) After the expiration of the time
provision of article 22.16(c)(1) which          limits set by Subsection (c) of this article
was declared to be unconstitutional at a        and before the entry of final judgment
later date." Lyles v. State, 814 S.W.2d at      against the bond, the court in its
412 (emphasis in original).                     discretion may remit to the surety all or
                                                part of the amount of the bond. . . .
   I believe it is quite plain that the
court of appeals was only half right.               [*506] (Emphasis added.) We have
That is, the court of appeals was correct       held that subsection (c) is violative of
when it determined that Article 22.16(a)        our state constitution's separation of
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



powers provision and is, therefore, of no       its reference to subsection (c) and that
effect. State v. Matyastik, 811 S.W.2d          remittitur is now discretionary with the
102; Armadillo Bail Bonds v. State, 802         trial court before final judgment under
S.W.2d 237 (Tex.Cr.App. 1990). We               subsection (d). There are several
have also held, albeit cryptically, that        problems with the majority's analysis,
                                                however. First, Matyastik, despite its
subsection (a) is contingent upon the           somewhat oblique discussion, explicitly
time      limitations    established     in     held that only "the portion of Art.
subsection (c), and thus has no effect          22.16(a),       V.A.C.C.P.,       utilizing
without the invalid provisions. Recently        subsection (c) is invalid." The balance of
we stated in [Ex parte] Jones [803              Article 22.16(a) remains valid and is not
S.W.2d 712, 714 (Tex.Cr.App. 1991)]             unconstitutional, [**29] at least not
that ". . . should part of the bill be held     under any theory yet advanced by the
invalid . . . the remainder of the statute      majority. Second, there was no
must be sustained if it is complete in          discussion in Matyastik concerning
itself and capable of being executed in         discretionary remittitur under subsection
accordance with the [legislative] intent        (d). Indeed, subsection (d) was never
wholly independent of that [**28]               mentioned in our opinion. Third,
which has been rejected." Because               subsection (a)'s constitutional infirmity--
subsection (a) cannot be executed or            its utilization of subsection (c)--applies
have any effect without utilizing the           with at least equal force to subsection
provisions of subsection (c), we hold           (d). Thus, if subsection (a) falls because
that the portion of Art. 22.16(a),              of its reference to subsection (c), then
V.A.C.C.P., utilizing subsection (c) is         subsection (d) must surely fall as well.
invalid under Article 2, § 1 of the Texas       There is no escaping this conclusion.
Constitution. Thus, remittitur now may             In my view, we must have been
be done anytime between forfeiture and          referring in Matyastik to mandatory
entry of a final judgment.                      remittitur under the surviving portions of
                                                Article 22.16(a) and (d). This
 State v. Matyastik, 811 S.W.2d at 104          interpretation of Matyastik is the only
(emphasis added; citation and some              one that is both coherent and gives some
punctuation omitted). Given the                 effect to the legislative scheme
principle of stare decisis, the disposition     embodied in Article 22.16.
of the case at bar must certainly depend
in large part on what we meant in                  As it was originally conceived by the
Matyastik.                                      Legislature, Article 22.16 created a
                                                scheme in which sureties on bail bonds
   The majority concludes from its              had an absolute right to remittitur for a
interpretation    of    Matyastik    that       lengthy period of time after forfeiture if
subsection (a) is void in toto because of       one of the conditions specified in
                   Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



subsection (a) was met. Following that         "it is well settled that if one part of a
set period of time--defined in subsection      statute is held unconstitutional, the
(c)--discretionary remittitur was still        remainder of the statute continues to be
possible under subsection [**30] (d) if a      valid." Indeed, this principle of statutory
request was made before final judgment.        construction has been codified at Tex.
1
    Thus, the Legislature apparently           [*507] Gov't Code Ann. § 311.032(c)
believed that it was good public policy        which provides:
to give bailbondsmen a strong incentive            In a statute that does not contain a
to return their principals to custody          provision       for      severability    or
before final judgment. We can still give       nonseverability, if any provision of the
some effect to this legislative scheme if      statute or its application to any person or
we construe our holding in Matyastik to        circumstance is held invalid, the
refer to mandatory remittitur. Because of      invalidity does not affect other
the majority's failure to do so, I             provisions or applications of the statute
respectfully dissent.                          that can be given effect without the
                                               invalid provision or application, and to
     1 I concur in the result reached          this end the provisions of the statute are
     by the majority because Lyles filed       severable.
     his motion to vacate the judgment
     and for remittitur approximately            (EDITOR'S NOTE: TEXT WITHIN
     thirty days after the entry of final      THESE SYMBOLS [O> <O] IS
     judgment.                                 OVERSTRUCK IN THE SOURCE.)
   CAMPBELL, J.                                    In Matyastik, we correctly applied §
                                               311.032(c) and held "the portion of Art.
   DELIVERED FEBRUARY 3, 1993                  22.16(a),      V.A.C.C.P.,      utilizing
   EN BANC                                     subsection (c) (was) invalid . . . ."
   MALONEY, J., JOINS                          Matyastik, 811 at 104. We then
                                               concluded, [O>without dissent,<O$ )
DISSENTING OPINION ON STATE'S                  that mandatory remittitur could be made
PETITION FOR DISCRETIONARY                     "anytime between forfeiture and entry of
REVIEW                                         a final judgment." 1 Id.

   BAIRD, Judge                                      1 Unless otherwise indicated, all
    I respectfully dissent. As appellant             emphasis herein is supplied by the
aptly states, "the cardinal rule of                  author.
statutory construction is to save, not            [**32]       Today, the majority,
destroy." Appellant's brief, pg. 11. In        purporting to rely on Matyastik,
State v. Matyastik, 811 S.W.2d 102, 104        concludes that without the time limits in
(Tex.Cr.App. 1991), we noted, [**31]           subsection (c) "remittitur of a forfeited
                    Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



bond would be mandatory at any time                       After the expiration of the time
after the forfeiture because there is no              limits set by Subsection (c) of this
judgment provision in (a). Consequently,              article and before the entry of a
subsection (a) cannot be executed or                  final judgment against the bond,
have any effect without the invalid                   the court in its discretion may remit
provisions. Subsection (a) is thus void.              to the surety all or part of the
We therefore hold that mandatory                      amount of the bond after deducting
remittitur provisions of 22.16(a) are no              the costs of court, any reasonable
longer valid. Remittitur may instead be               costs to the county for the return of
done at the trial court's discretion at any           the principal, and the interest
time before entry of a final judgment                 accrued on the bond amount as
[Footnote omitted]" pursuant to Tex.                  provided by Subsection (e) of this
Code Crim. Proc. Ann. art. 22.16(d).                  article.
Lyles v. State,                S.W.2d at             The majority ignores the fact that, in
(Tex.Cr.App. 1992, No. 1302-91,                 1987, the Legislature amended art. 22.16
delivered October 7, 1992), slip op. pg.        to its current form, providing for both
4.                                              mandatory and discretionary remittitur.
   To reach this holding, the majority          Obviously the Legislature did not
mis-interprets Matyastik. As I interpret        perceive a conflict between subsections
Matyastik, the mandatory provisions of          (a) [**34] and (d). Indeed, there is no
subsection (a) were still valid "anytime        such conflict; one provides for
between forfeiture and entry of a final         mandatory remittitur while the other
judgment." Matystik, 811 S.W.2d at 104.         provides for remittitur at the discretion
    The majority justifies its holding by       of the trial court. In other words, if the
creating a conflict between subsections         bond is forfeited for a reason other than
(a) and (d). The majority states "if            one provided by subsection (a), the trial
subsection (a) is to be read without            judge     may,     at    his   discretion,
reference to the [**33] time limitations        nevertheless remit all or part of the
of subsection (c), the trial court would        amount of the bond under subsection
no longer have" the discretion found in         (d).
subsection (d). What the majority fails to        The Legislature provided for
recognize is that subsection (d) also           mandatory remittitur to encourage the
relies upon the time limits set by              making of bonds for those incarcerated
subsection (c). 2 Consequently, if              while awaiting trial. As the Court of
subsection (a) is unconstitutional,             Appeals recognized:
subsection (d) is also unconstitutional.           The legislature has considered the
                                                overcrowded condition of most jails and
     2 Art. 22.16(d) provides:                  the state penitentiary, and determined it
                     Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



to be the public policy of allow a                     1990 and Lyles filed his motion to
remittitur of an appearance bond when                  modify less than thirty days later,
the principal is returned to custody prior             March 6, 1990. Accordingly, the
to final judgment. In making its                       judgment was not final under Tex.
determination, the legislature has                     R. Civ. Proc. Ann. 329b(d), (e) and
recognized that jail and penitentiary                  (f). See also, prior Rule 329b(5)
space is critical in Texas and that the                (Judgments shall be come final
bail bond industry provided a useful                   after the expiration of thirty (30)
service by assuming the risk of a                      days the date of rendition of
defendant's timely appearance in court.                judgment or order overruling an
When a defendant is released on bail                   original or amended motion for
bond, the potential liability that cities              new trial.) Accordingly, the
and counties assume while housing                      judgment was not final and the
persons [*508] accused of crimes are                   remittitur was mandatory under
eliminated [**35]        as well as the                Matyastik.
financial burden for housing each                    [**36]     Keeping in mind the
prisoner. In addition, critical jail space is    "cardinal rule of statutory construction"
made available for more serious                  we can save, not destroy art. 22.16. I
offenders.                                       believe, consistent with our holdings in
                                                 Armadillo Bail Bonds v. State, 802
 Lyles v. State, 814 S.W.2d 411, 412             S.W.2d 237 (Tex.Cr.App. 1990) and
(Tex. App.--Waco 1991).                          Matyastik, art. 22.16 should be read as
    I believe the Court of Appeals'              follows:
treatment of this case was, in all
respects, correct. 3                             (a) Anytime between forfeiture and entry
                                                 of a final judgment, $ (O>After
     3     Judge Campbell believes the           forfeiture of a bond and before the entry
     court of appeals "was surely                of a final judgment before the expiration
     wrong,      however,     when     it        of the time limits set by Subsection (c)
     concluded that Lyles was entitled           of this article,<O$ ) the court shall on
     to remittitur even though he filed          written motion, remit to the surety the
     his motion for remittitur after the         amount of the bond . . . .
     trial   court     rendered     final           (b) No change.
     judgment." Lyles v. State, S.W.2d
     at (Campbell, J., Concurring and               $ (O>(c) A final judgment may be
     Dissenting), slip op. pg. 2                 entered against a bond not earlier than:
     (Emphasis in original.). I disagree.           (1) nine months after the date the
     The record reflects the trial judge         forfeiture was entered, if the offense for
     entered a judgment on February 7,           which the bond was given is a
                     Lyles v State, 850 S.W.2d 497 (Tex. Crim. App. 1993)



misdemeanor, or(2) 18 months after the              (e) No change.
date the forfeiture was entered, if the             Because the majority destroys rather
offense for which the bond was given is          than saves art. 22.16, I respectfully
a felony.<O$ )                                   dissent.
   (d) Anytime between forfeiture and $             BAIRD, Judge
(O>After the expiration of the time
limits set by Subsection (c) of this article        (Delivered February 3, 1993)
and before the<O$ ) entry of a final                En banc
judgment against [**37] the bond. . . .
                McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)




             MIKE McKENNA d/b/a BONDMAN BAIL BONDS,
                  Appellant v. THE STATE OF TEXAS

                                  No. PD-0053-07

               COURT OF CRIMINAL APPEALS OF TEXAS

               247 S.W.3d 716; 2008 Tex. Crim. App. LEXIS 383

                           March 12, 2008, Delivered

NOTICE: PUBLISH                              JJ., joined. WOMACK, J., did not
                                             participate.
PRIOR HISTORY: [**1]
 ON THE STATE'S PETITION FOR                 OPINION BY: HOLCOMB
DISCRETIONARY          REVIEW.      IN
CAUSE NO. 10-05-00318-CR FROM                OPINION
THE TENTH COURT OF APPEALS,                      [*717] In this bail bond forfeiture
JOHNSON COUNTY.                              case, the trial court denied the surety's
McKenna v. State, 209 S.W.3d 233, 2006       request to remit a portion of the bond
Tex. App. LEXIS 9401 (Tex. App. Waco,        amount. The court of appeals later
2006)                                        reformed the trial court's order to reflect
                                             a remittitur of 60% of the bond amount.
COUNSEL: For APPELLANT: Mike                 We reverse.
McKenna, Pro se, Fort Worth, TX.
                                                 On January 18, 2001, Belinda Lee
For   STATE:     Lisa   A.  Wyatt,           Powell, charged in Johnson County with
ASSISTANT DISTRICT ATTORNEY,                 a felony drug offense, failed to appear in
Cleburne, TX; Jeffrey L. Van Horn,           court for her trial. On February 13, 2001,
STATE'S ATTORNEY, Austin, TX.                the trial court rendered judgment nisi for
                                             the State and against Powell and her
JUDGES: HOLCOMB, J., delivered the           surety, Mike McKenna d/b/a Bondman
opinion of the Court, in which KELLER,       Bail Bonds, jointly and severally, in the
P.J., and MEYERS, PRICE, JOHNSON,            amount of Powell's bail bond, which was
KEASLER, HERVEY, and COCHRAN,                $ 25,000. On that same date, the trial
                  McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)



court ordered that a capias be issued for      and was "assured . . . that [Powell]
Powell's arrest. On March 26, 2003, at         [**3] had been arrested."
the bond forfeiture hearing, the trial             At the close of Smith's testimony, the
court rendered a default final judgment        trial court allowed McKenna and the
for the State and against Powell and           State to present their arguments.
McKenna.                                       McKenna argued that equity demanded
    On March 22, 2005, McKenna filed a         "a substantial remittitur" because: (1)
special bill of review [**2] in the trial      "Smith [had] expended substantial
court requesting, on equitable grounds,        efforts in locating" and apprehending
that the default final judgment be             Powell and (2) "the State ha[d] not
reformed to reflect a 95% remittitur of        presented any evidence showing how [it
the bond amount. On June 27, 2005, the         had been] prejudiced" by the seven-
trial court held an evidentiary hearing on     month delay in apprehending Powell.
McKenna's bill. At that hearing,               The State responded that equity did not
McKenna called one witness, [*718]             require any remittitur at all because: (1)
Charles A. Smith, and the State called         Smith's testimony had been "sketchy at
no witnesses. Smith testified that: (1) he     best"; (2) Smith's efforts to locate and
was, at the relevant times, an employee        apprehend Powell had been "minimal";
of McKenna's; (2) after Powell failed to       and (3) the delay in apprehending
appear in court for her trial, he and other    Powell had been "significant."
McKenna employees "did [their] best to            On July 25, 2005, the trial court
get [Powell] arrested"; (3) they               issued an order denying any remittitur to
"searched all the places [they] thought        McKenna. The trial court gave no
she might be," they "contacted her             explanation for its ruling.
sisters [and] her mother," and they
publicly offered a $ 1,000 reward for             On direct appeal, McKenna argued
information leading to her arrest; (4) on      that the trial court's denial of remittitur
September 13 or 14, 2001, an informant         had been "an abuse of discretion
telephoned their office and told them of       considering all the facts of the case,
Powell's whereabouts; (5) on September         especially in view of the fact . . . that the
15, 2001, he personally went to the            Surety [had been] totally responsible for
location given by the informant, which         locating [Powell] and having her
was off County Road 801 in Johnson             apprehended." McKenna argued, too,
County, and found Powell there; (6) he         that "the state [had] failed to present any
immediately telephoned the Johnson             evidence of harm done to the [**4]
County Sheriff's Office and gave them          public or [any] prejudice suffered by the
Powell's location; and (7) he telephoned       government" as a consequence of the
the Sheriff's Office again later that day      delay in apprehending Powell. The State
                                               counterargued that the trial court had not
                  McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)



abused its discretion in denying
remittitur because McKenna had failed
to carry his "burden [of showing] the             The [**5] State later filed a petition
[trial] court the equitable grounds            for discretionary review, which we
[required] to grant the special bill of        granted. See Tex. R. App. Proc. 66.3(e).
review."                                       In its petition and accompanying brief,
    The Tenth Court of Appeals, by a           the State, in essence, reiterates the
vote of two to one, agreed with                arguments made by [*719] the chief
McKenna's arguments and reformed the           justice in the court below. McKenna, in
trial court's order to reflect a remittitur    response, argues that the court of
of 60% of the bond amount, i.e., $             appeals "properly found . . . a clear and
15,000. McKenna v. State, 209 S.W.3d           profound abuse of discretion based on
233, 236-237 (Tex.App.-Waco 2006).             the . . . record."
The chief justice of the court of appeals,        Article 22.17(a) of the Texas Code of
in dissent, argued:                            Criminal Procedure provides:
       "[T]he majority has placed                     "Not later than two years
     the burden on the State to                     after the date a final judgment
     avoid    a    remittitur    by                 is entered in a bond forfeiture
     presenting evidence. This is                   proceeding, the surety on the
     an erroneous placement of the                  bond may file with the court a
     burden of proof. The burden                    special bill of review. A
     of proof is on the surety to                   special bill of review may
     establish that on equitable                    include      a    request,     on
     grounds a remittitur should be                 equitable grounds, that the
     ordered.                                       final judgment be reformed
        ***                                         and that all or part of the bond
        "The hearing [on the                        amount be remitted to the
     special bill of review]                        surety, after deducting the
     focussed     on     McKenna's                  costs of court, any reasonable
     efforts to locate Powell.                      costs to the county for the
     Evidence on this single factor                 return of the principal, and the
     was not enough to convince                     interest accrued on the bond
     the trial court of the surety's                amount from the date of
     equitable interest in being                    forfeiture. The court in its
     granted a remittitur. I find no                discretion may grant or deny
     abuse of discretion." Id. at                   the bill in whole or in part."
     238-239.
                  McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)



    Under the plain wording of the             contemplates      that    the    accused's
statute, a surety may request, within two      nonappearance will normally result in
years of a final judgment on a bond            total forfeiture of the bond amount.
forfeiture, that the trial court order a       While keeping that fact in mind, the trial
[**6] remittitur of all or part of the bond    court may consider any factor bearing
amount on equitable grounds. Although          upon the equity of the situation,
the statute does not state that the surety     including, but not necessarily limited to,
has the burden of proof with respect to        the following: (1) whether the accused's
the existence of such equitable grounds,       failure to appear in court was willful; (2)
we are of the view that the surety does        whether the delay caused by the
indeed have that burden, since the surety      accused's failure to appear in court
is the party attempting to change the          prejudiced the State or harmed the
status quo. This is so even though the         public interest; (3) whether the surety
State may have superior access to proof        participated in the re-arrest of the
of certain matters. As one leading             accused; (4) whether the State incurred
treatise explains, "The burdens of             costs or suffered inconvenience in the
pleading and proof with regard to most         re-arrest of the accused; (5) whether the
facts have been and should be assigned         surety received compensation for the
to the [party] who generally seeks to          risk of executing the bail bond; and (6)
change the present state of affairs and        whether the surety will suffer extreme
who therefore naturally should be              hardship in the absence of a remittitur.
expected to bear the risk of failure of        See Lyles v. State, 850 S.W.2d 497, 502
proof or persuasion." K. Broun (ed.),          (Tex.Crim.App. 1993); Gramercy Ins.
McCormick on Evidence § 337 at 474             Co. v. State, 834 S.W.2d 379, 381-382
(6th ed. 2006). Our research also reveals      (Tex.App.-San Antonio 1992, no pet.);
that most or all other American                8A Am. Jur. 2d Bail and Recognizance
jurisdictions also assign the burden of        §§ 150 & 151 (1997); 8 C.J.S. Bail §
proof to the party seeking relief from a       290 (2005).
bond forfeiture. See 8A Am. Jur. 2d Bail           On this record, a reasonable trial
and Recognizance § 150 (1997); 8 C.J.S.        [**8] court could have concluded that
Bail § 313 (2005).                             equity did not require any remittitur of
    Under the terms of Article 22.17(a),       the bond amount. Thus, we discern no
the decision whether to grant any              abuse of discretion on the part of the
remittitur on equitable grounds rests          trial court. McKenna had the burden of
within the sound discretion of the trial       showing that equity required a remittitur
court. In making its decision, [**7] the       of some or all [*720] of the bond
trial court must keep in mind that, since      amount, yet he presented evidence on
the purpose of bail is to secure the           only one of the relevant factors: his
accused's appearance in court, the law         participation in the re-arrest of Powell.
                McKenna v State, 247 S.W.3d 716 (Tex. Crim. App. 2008)



McKenna, who undoubtedly received                The record shows no abuse of
monetary compensation for his risk in        discretion on the part of the trial court,
executing Powell's bail bond, presented      and the court of appeals erred in holding
no evidence concerning the reason for        otherwise. We reverse the judgment of
her nonappearance in court, or the           the court of appeals and affirm the order
prejudice, costs, and inconvenience          of the trial court.
suffered (or not suffered) by the State         DELIVERED MARCH 12, 2008
and the public as a result of her
nonappearance and the seven-month               PUBLISH
delay until she was re-arrested.
      Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)




             Robert Mendez d/b/a A-1 Bonding Company, Surety,
                  Appellant v. The State of Texas, Appellee

                                NO. 03-12-00200-CV

           COURT OF APPEALS OF TEXAS, THIRD DISTRICT,
                            AUSTIN

                            2013 Tex. App. LEXIS 13278

                               October 25, 2013, Filed

PRIOR HISTORY: [*1]                            MEMORANDUM OPINION
 FROM COUNTY COURT AT LAW                         Robert Mendez d/b/a A-1 Bonding
NO. 1 OF CALDWELL COUNTY. NO.                  Company (Mendez) appeals the trial
5203, HONORABLE EDWARD L.                      court's judgment awarding $5,000 plus
JARRETT, JUDGE PRESIDING.                      court costs to the State of Texas in a
                                               bond-forfeiture suit. We will affirm the
DISPOSITION: Affirmed.                         district court's judgment.

                                               BACKGROUND
COUNSEL:       For    appellee: Ms.
Cassandra M. Benoist, Assistant                    Suits for bond forfeiture are governed
Criminal District Attorney-Caldwell            by chapter 22 of the Texas Code of
County, Lockhart, TX.                          Criminal Procedure. See Tex. Code
                                               Crim. Proc. arts. 22.01-.18. Under
For appellant: Mr. John P. Bennett,            article 22.02, a bond may be forfeited
Lockhart, TX.                                  when a defendant has posted bond but
                                               fails to appear in court as required. Id.
JUDGES: Before Justices Puryear,               art. 22.02. Specifically, when the
Pemberton and Field.                           defendant fails to appear within a
                                               reasonable time after called by name at
OPINION BY: Scott K. Field                     the courthouse door, the trial court
                                               enters a judgment providing "that the
OPINION                                        State of Texas recover of the defendant
                                               the amount of money in which he is
        Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)



bound, and of his sureties, if any, the          could take Tokola into custody pursuant
amount of money in which they are                to [*3] a warrant that had issued for her
respectively bound." Id. This judgment,          arrest. However, Mendez testified that
referred to as a judgment nisi, must also        once the officers arrived, Tokola--who
state that it will be made final, unless         was visibly pregnant at the time--began
good cause is shown for why the                  complaining of stomach pain and asked
defendant did not appear. Id. At a later         to be taken to the hospital. Counsel for
[*2] hearing to finalize the bond                Mendez then presented the testimony of
forfeiture, "[t]he essential elements of         Sergeant Richard Torres, the supervising
the State's cause of action . . . are the        police officer on the scene that day.
bond and the judicial declaration of the         Torres testified that, upon the arrival of
forfeiture of the bond, which is the             an ambulance and an evaluation by
judgment nisi." Alvarez v. State, 861            emergency medical personnel, he
S.W.2d 878, 880-81 (Tex. Crim. App.              decided not to arrest Tokola. Instead,
1992).                                           Torres released Tokola for transport to
    In this case, Vallery Tokola, the            the local hospital.
principal, was arrested for misdemeanor             At the conclusion of the hearing,
criminal trespass, and Mendez, the               Mendez asserted that he was entitled to
surety, filed a bond conditioned on              exoneration and alternatively requested a
Tokola's subsequent appearance. On               remittitur in the full amount of the bond.
January 7, 2010, Tokola failed to appear         The trial court later rendered judgment
in court as required. On February 1,             against Tokola and Mendez, jointly and
2010, in accordance with chapter 22, the         severally, for the full amount of the bond
trial court issued a judgment nisi for           plus costs. Upon Mendez's request, the
$5,000 and declared the bond forfeited.          court issued findings of fact and
    Upon notifying Mendez of the bond-           conclusion of law.
forfeiture proceedings, the trial court
conducted a hearing to finalize the              STANDARD OF REVIEW
judgment. At the hearing, the State                 Although               bond-forfeiture
entered    several    documents     into         proceedings are criminal cases, appellate
evidence, including the judgment nisi,           review of bond-forfeiture proceedings is
but did not present any testimony.               governed by civil law, including the
Mendez testified on his own behalf               standard of review. Tex. Code Crim.
regarding actions he took aimed at               Proc. art. 44.44 (providing that "the
returning Tokola to incarceration                proceeding shall be regulated by the [*4]
following her failure to appear. Mendez          same rules that govern civil actions
explained that on February 5, 2011, he           where an appeal is taken"); International
"lured" Tokola to his office and then            Fid. Ins. Co. v. State, No. 03-09-00539-
called the Lockhart police so that they          CR, 2010 Tex. App. LEXIS 8873, 2010
        Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)



WL 4366913, at *2 n.3 (Tex. App.--                     bond, the court in its
Austin Nov. 3, 2010, no pet.) (mem. op.)               discretion may remit to the
(applying civil standard to review for                 surety all or part of the
factual and legal sufficiency).                        amount of the bond after
    In a bench trial, where the trial court            deducting the costs of court
makes findings of fact, as it did in this              and any reasonable and
case, those findings of fact are the                   necessary costs to the county
equivalent of jury answers to special                  for the return of the principal,
issues. Echols v. Olivarez, 85 S.W.3d                  and the interest accrued on
475, 477 (Tex. App.--Austin 2002, no                   the bond amount as provided
pet.). This Court reviews the trial court's            by Subsection (c).
findings of fact for legal sufficiency and
factual sufficiency of the evidence.
Seasha Pools, Inc. v. Hardister, 391             Tex. Code Crim. Proc. art. 22.16(b). In
S.W.3d 635, 639 (Tex. App.--Austin               two issues on appeal, Mendez challenges
2012, no pet.). When, as here, a party           the trial court's failure to grant him a
attacks the factual sufficiency of an            discretionary remittitur under article
adverse finding on an issue on which he          22.16(b). First, Mendez asserts that the
has the burden of proof, he must                 evidence is factually insufficient to
demonstrate on appeal that the adverse           support the trial court's finding that
finding is against the great weight and          Mendez was "advised that the San
preponderance of the evidence. See Dow           Marcos Police Department would take
Chem. Co. v. Francis, 46 S.W.3d 237,             Defendant Vallery Tokola into custody
242 (Tex. 2001) (per curiam). In                 if Defendant Robert Mendez would
conducting this review, we do not                contact that agency and make a formal
engage in our own factual review;                request." Second, Mendez argues that
rather, the trial judge is the "sole judge       the trial court abused its discretion in
of the credibility of the witnesses and          failing to grant him a remittitur for
the weight to [*5] be given their                "good cause" pursuant to article
testimony." McGalliard v. Kuhlmann,              22.16(b). Mendez asserts that he was
722 S.W.2d 694, 696 (Tex. 1986).                 entitled to remittitur for all or part [*6]
                                                 of the bond because, as a result of the
ANALYSIS                                         officers' failure to comply with their
                                                 statutory duties to arrest Tokola, he was
   Article 22.16 of the Code of Criminal         unfairly deprived of his statutory right to
Procedure provides:                              exoneration.1

       (b) For other good cause                        1 At trial, Mendez also argued
     shown and before the entry of                     that he was entitled to exoneration.
     a final judgment against the
       Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)



    Article 22.13 of the Texas Code of          custody if Defendant Robert Mendez
    Criminal Procedure provides a               would contact that agency and make a
    statutory defense to forfeiture             formal request" is supported by factually
    proceedings,             exonerating        sufficient evidence. At the hearing, the
    defendants and sureties in certain          following exchange took place between
    limited circumstances. See Tex.             Sergeant Torres and counsel for the
    Code Crim. Proc. art. 22.13(a)(1)-          State:
    (5). One of those circumstances is
    detailed in article 22.13(a)(5) and                 COUNSEL: And it's your
    provides that a defendant and his                 understanding that [Tokola]
    sureties, if any, are exonerated                  got in the ambulance and she
    from liability in a misdemeanor                   was taken to the hospital? I'm
    case when the principal becomes                   guessing Luling she was
    incarcerated "at the time of or not               taken to.
    later than the 180th day after the                   TORRES: No, she was
    date of the principal's failure to                taken to San Marcos because
    appear." Id. art. 22.13(a)(5). In this            I remember mentioning to
    case, the trial court made several                somebody if they wanted to,
    findings relevant to Mendez's                     they could call San Marcos. I
    exoneration defense, including that               don't remember who talked to
    Tokola "was never incarcerated as                 the bonding company. They
    per Article 22.13(a)(5), Texas Code               could call San Marcos, to the
    of Criminal Procedure, until                      officer on duty at the hospital,
    October 26, 2011." On appeal,                     and you [sic] once she had a
    Mendez does not challenge any of                  doctor release, the jail could
    these findings. Further, Mendez                   accept her then.
    does not argue that, under the
    evidence presented, he was entitled
    to exoneration. Instead,         [*7]
    Mendez argues that the inaction of             This is the only testimony concerning
    the police constitutes good cause           the parties' understanding regarding
    for remittitur pursuant to article          Tokola's custody during her transport
    22.16(b) because it deprived him of         and upon her arrival at the hospital.
    an otherwise certain exoneration            Torres's testimony [*8] regarding this
    defense.                                    issue is unclear, at best. To the extent the
                                                fact in dispute is relevant to Mendez's
   We first consider whether the trial          request for a remittitur, we will assume
court's determination that "Mendez was          without deciding that the evidence
advised that the San Marcos Police              supporting it is factually insufficient.
Department would take [Tokola] into             Accordingly, we next examine whether
        Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)



the trial court's denial of remittitur was       re-arrest of the accused; (5) whether the
an abuse of discretion, in the absence of        surety received compensation for the
this fact.                                       risk of executing the bond; and (6)
    Mendez argues that the trial court           whether the surety will suffer extreme
was provided with "good cause" to remit          hardship in the absence of a remittitur.
all or part of the bond and abused its           Id. An abuse of discretion occurs if the
discretion in refusing Mendez's request          trial court acts without reference to any
to do so. See id. Mendez contends that           guiding rules and principles or, in other
(1) he "did everything expected of him           words, if the court acted arbitrarily or
to have [Tokola] arrested and                    unreasonably. Lyles v. State, 850 S.W.2d
incarcerated," and (2) "but for, the             497, 502 (Tex. Crim. App. 1993).
actions of [the officers], in clear                  At the hearing to finalize the bond-
violation of their statutorily imposed           forfeiture judgment, Mendez had the
duties, Tokola was allowed to go free,           burden      of    showing       that   the
depriving [Mendez] of his statutory right        circumstances entitled him to a
to an exoneration . . . ."                       remittitur of some or all of the bond. See
   Under the terms of article 22.16(b),          McKenna, 247 S.W.3d at 719-20. In
the decision to grant or deny remittitur         support of his remittitur request, Mendez
to the surety, in whole or in part, rests        [*10] presented evidence relevant to one
within the sound discretion of the trial         of the factors--his efforts on February 5,
court. McKenna v. State, 247 S.W.3d              2011, to have Tokola taken into custody
716, 719 (Tex. Crim. App. 2008). In              by police for incarceration. However,
making its decision, the trial court must        Mendez did not present any evidence of
keep in mind that the purpose of bail is         the costs he incurred in these efforts, if
to secure the accused's appearance in            any. Likewise, Mendez did not present
court; the law contemplates [*9] that the        any evidence concerning the reason, if
accused's nonappearance will normally            any, that Tokola failed to appear in
result in forfeiture of the bond amount.         court. In fact, the trial court found that
Id. In addition, the trial court may             Mendez failed to show good cause for
consider any factor relevant to good             Tokola's original failure to appear in
cause, including (1) whether the                 court on January 7, 2013, and Mendez
accused's failure to appear in court was         does not challenge this finding on
for good cause; (2) whether the delay            appeal. Mendez also did not establish
caused by the accused's failure to appear        that his compensation for his surety
in court prejudiced the State or harmed          services was extraordinarily low in light
the public interest; (3) whether the             of the risk undertaken. Finally, Mendez
surety participated in the re-arrest of the      did not present any evidence concerning
accused; (4) whether the State incurred          the prejudice, costs, and inconvenience,
costs or suffered inconvenience in the
        Mendez v. State, No. 03-12-00200-CV (Tex. App. –Austin Oct. 25, 2013, no pet.)



if any, suffered by the State and the            presented evidence of only one of the
public.                                          relevant factors). We overrule Mendez's
    Viewing the record as a whole, we            first and second issues on appeal.
cannot conclude that the trial court's
failure to find good cause for remittitur        CONCLUSION
under article 22.16(b) is against the               Having concluded that the trial court
great weight and preponderance of the            did not abuse its discretion, we affirm
evidence. As a result, we cannot                 the judgment of the trial court.
conclude that the trial court's decision to         Scott K. Field, Justice
deny Mendez's request for remittitur was
arbitrary or unreasonable--that is, the             Before Justices Puryear, Pemberton
record shows no abuse of discretion.             and Field
[*11] See id. at 720 (concluding that               Affirmed
trial court's denial of remittitur was not
                                                    Filed: October 25, 2013
abuse of discretion where surety
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)




             Gaile Nixon, Individually and A/N/F/ of R.M.V., a Minor,
            Petitioner, v. Mr. Property Management Company, Inc. Et
                                  Al., Respondents

                                       No. C-3425

                          SUPREME COURT OF TEXAS

            690 S.W.2d 546; 1985 Tex. LEXIS 852; 28 Tex. Sup. J. 384

                                      May 1, 1985

SUBSEQUENT HISTORY:             [**1]          against Mr. Property Management
Rehearing Denied June 19, 1985.                Company and Brett Davis. R.M.V. was
                                               raped in a vacant unit of the defendants'
PRIOR HISTORY:               From Dallas       apartment complex. She was not a
County, Fifth District.                        resident or a guest at the complex. The
                                               trial court granted Mr. Property and
                                               Brett Davis' motion for summary
COUNSEL: Randall R. Moore, from                judgment. The court of appeals affirmed
Dallas, for petitioner.                        the judgment. 675 S.W.2d 585. We
                                               reverse the judgments of the courts
Jack Pew, Jr., (Jackson, Walker,               below and remand the cause to the trial
Winstead, Cantwell & Miller), from             court for a trial on the merits.
Dallas, for respondent.
                                               Background
JUDGES: Hill, C.J. Justice Spears and              R.M.V., age 10, resided at the
Justice Kilgarlin concurring. Dissenting       Landmark Apartments. At about 7:00
Opinion by Justice McGee in which              p.m. on August 7, 1981, while it was
Justice Wallace and Gonzalez join.             still light, a young man abducted R.M.V.
                                               from a sidewalk outside the Landmark
OPINION BY: HILL                               Apartments and dragged her to the
                                               Chalmette         Apartments,      located
OPINION                                        diagonally across the street [**2] from
    [*547] This is an action for damages       the Landmark Apartments. According to
filed on behalf of a minor, R.M.V.,            R.M.V.'s affidavit, her assailant took her
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



"directly to a vacant apartment at                      A. I think there are many
Chalmette Apartments." There, he raped               reasons. One of the reasons
her, put her in the closet, told her not to          would be for the simple
leave, and disappeared. There are no                 reason we're here.
other known witnesses. Chalmette
Apartments learned of the incident later       A Dallas City Ordinance established
that night when a police officer spoke to      minimum standards for landowners:
the maintenance man and the resident
manager.                                              SEC. 27-11. MINIMUM
     [*548]     There was evidence                   STANDARDS,
concerning the unit's dilapidated                    RESPONSIBILITIES  OF
condition. The responding officer,                   OWNER.
George Tilley, stated in his affidavit
that: "The glass was broken from the                         (a)      Property
windows and the front door was off its                     standards.      An
hinges. The apartment unit in question                     owner shall:
was empty, filthy, dirty and full of                           (6) keep the
debris." In his deposition, Brett Davis,                   doors and windows
the owner of Chalmette Apartments,                         of     a     vacant
admitted that leaving doors off hinges                     structure or vacant
and windows without panes would tend                       portion     of    a
to encourage vagrants to occupy these                      structure securely
apartments. Gene Jacobson, president of                    closed to prevent
Mr. Property Management Company,                           unauthorized entry.
stated in his deposition that one reason
for securing vacant units was to prevent
this type of crime from occurring. The         Revised Code of Civil and Criminal
testimony was as follows:                      Ordinances of the City of Dallas §
                                               27.11(a)(6).
       Q. What is the reason why                   The summary judgment evidence
     you should keep doorknobs                 included a list of police incident reports
     on    doors     of    vacant              concerning the Chalmette Apartments
     apartments?                               during the two years prior to the rape.
        A.     [**3]        Numerous           Police had investigated numerous crimes
     reasons. One, I would say, to             committed at the complex including one
     secure -- Okay . . . .                    attempted murder, two aggravated
        Q. Any other reason?                   robberies, two aggravated assaults,
                                               sixteen apartment burglaries, four
                                               vehicle burglaries, four cases of theft,
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



five cases of criminal mischief, and one       through gross negligence. The court also
auto theft.                                    held that the condition of the apartment
   Gaile Nixon, R.M.V.'s mother and            complex was [**5] not a proximate
next friend, filed suit alleging that Mr.      cause of the rape because R.M.V.'s
Property Management Company, Inc.,             abduction and rape were not a
and Brett Davis (manager and owner,            reasonably foreseeable consequence
respectively, of [**4]         Chalmette       thereof.
Apartments) and I. V. Investment, Inc.,
and James R. Liddle (manager and               Summary Judgment
owner, respectively, of Landmark                  This is an appeal from a summary
Apartments) were liable in tort for            judgment. The standards for reviewing a
R.M.V.'s injuries. Nixon settled with the      motion for summary judgment are well
Landmark Apartment interests. Brett            established. As mandated by this court,
Davis purchased Chalmette Apartments           they are:
in March of 1981. He hired Mr. Property
to manage the complex near the end of                  1. The movant for summary
that month.                                          judgment has the burden of
    Nixon contends that Mr. Property and             showing that there is no
Brett Davis (for convenience both                    genuine issue of material fact
parties will be referred to as Mr.                   and that it is entitled to
Property) owed R.M.V. a duty of                      judgment as a matter of law.
reasonable care which duty was                          2. In deciding whether
breached. She further alleged that such              there is a disputed material
breach was a proximate cause of the                  fact issue precluding [*549]
rape and resulting injuries because this             summary judgment, evidence
crime was reasonably foreseeable under               favorable to the non-movant
all the attending circumstances.                     will be taken as true.
    The trial court sustained Mr.
Property's   motion      for   summary               3. Every reasonable inference
judgment and rendered judgment that                  must be indulged in favor of
Nixon take nothing. In affirming the trial           the non-movant and any
court's judgment, the court of appeals               doubts resolved in its favor.
held that, since R.M.V. was on Mr.
Property's    property     without     its     Montgomery v. Kennedy, 669 S.W.2d
knowledge and consent, R.M.V. was a            309, 310-11 (Tex. 1984); Wilcox v. St.
trespasser and Mr. Property's duty             Mary's University of San Antonio, 531
toward her was no greater than not to          S.W.2d 589, 592-93 (Tex. 1975). See
injure her willfully, wantonly, or             also City of Houston v. Clear Creek
                 Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



Basin Authority, 589 S.W.2d 671 (Tex.              Using the mandated standard for
1979).                                          reviewing summary judgment, we
                                                conclude that a genuine issue of material
Duty                                            [**7] fact exists as to Mr. Property's
    In this case, the question of what duty     breach of duty. If the trier of fact
Mr. Property owed to R.M.V. is                  concludes that Mr. Property violated the
answered by the ordinance. This                 ordinance without a valid excuse, Mr.
ordinance legislatively imposes a               Property is negligent per se. This does
standard of conduct which we adopt              not end our inquiry; we must still
[**6]      to define the conduct of a           determine if there is a material fact issue
reasonably prudent person. Moughon v.           on the question of proximate cause.
Wolf, 576 S.W.2d 603, 604 (Tex. 1978);
Missouri Pac. R. Co. v. American                Proximate Cause
Statesman, 552 S.W.2d 99, 103 (Tex.                A material fact issue exists in this
1977). The unexcused violation of a             case as to whether Mr. Property's
statute     or     ordinance     constitutes    negligence, if any, proximately caused
negligence as a matter of law if such           R.M.V.'s injuries. The two elements of
statute or ordinance was designed to            proximate cause are cause in fact and
prevent injury to the class of persons to       foreseeability. Missouri Pac. R. Co., 552
which the injured party belongs. Id. A          S.W.2d at 103.
reasonable interpretation         of this          Cause in fact denotes that the
ordinance is that it was designed to deter      negligent act or omission was a
criminal activity by reducing the               substantial factor in bringing about the
conspicuous opportunities for criminal          injury and without which no harm would
conduct. In fact, Mr. Property's president      have been incurred. Id. Viewing the
testified that one reason vacant                summary judgment as we must, drawing
apartment units should be secured is to         all reasonable inferences in favor of
prevent this type of criminal activity. An      R.M.V., we conclude that a reasonable
ordinance requiring apartment owners to         inference exists that, but for Mr.
do their part in deterring crime is             Property's failure to comply with the
designed to prevent injury to the general       ordinance regarding maintenance of its
public. R.M.V. falls within this class.         apartment complex, this crime would
Since the ordinance was meant to protect        have never taken place. There is
a larger class than invitees and licensees,     evidence that the assailant took R.M.V.
and since R.M.V. committed no wrong             "directly to a vacant apartment," the
in coming onto the property, these              inference being that the assailant was
premise liability distinctions are              acutely aware of the vacant unit's [**8]
irrelevant to our analysis.                     existence and embarked upon his course
                                                of criminal conduct at this particular
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



time and place knowing that this unit          Co., 663 S.W.2d 60 (Tex. App. -- San
was an easily accessible place in which        Antonio 1983, writ ref'd n.r.e.);
to perpetrate this assault in isolation.       Walkoviak v. Hilton Hotels Corp., 580
    The court of appeals misplaced its         S.W.2d 623 (Tex. Civ. App. -- Houston
reliance on City of Mobile v. Largay,          [14th Dist.] 1979, writ ref'd n.r.e.).
346 So. 2d 393 (Ala. 1977), which had            The RESTATEMENT (SECOND) OF
facts similar to ours. In Largay, the          TORTS § 448 (1965) states:
Alabama Supreme Court placed heavy
emphasis on the fact that the assailant                The act of a third person in
used the city's building to commit the               committing an intentional tort
rape only as a last resort:                          or crime is a superseding
                                                     cause of harm to another
       Clearly, the assailant did not                resulting therefrom, although
     even intend to use the                          the actor's negligent conduct
     building until his first plan to                created a situation which
     carry the plaintiff away was                    afforded an opportunity to the
     thwarted when he was unable                     third person to commit such a
     to start her car. Only when he                  tort or crime, unless the actor
     failed after six or seven                       at the time of his negligent
     attempts to start the car, did                  conduct realized or should
     he resort to the unlocked                       have realized the likelihood
     cellar.                                         that such a situation might be
                                                     created, and that a third
Id. at 395 (emphasis theirs).                        person might avail himself of
   Finally, we turn to the question of               the opportunity to commit
foreseeability. Foreseeability means                 such a tort or crime.
[*550] that the actor, as a person of                [Emphasis added.]
ordinary intelligence, should have
anticipated the dangers that his negligent      The evidence is replete with instances
act created for others. Missouri Pac. R.       of prior violent crimes occurring at
Co., 552 S.W.2d at 103. Usually, the           Chalmette Apartments. This record
criminal conduct of a third party is a         certainly provides evidence that further
superseding     cause     relieving    the     acts of violence were reasonably
negligent actor from liability. [**9]          foreseeable. Evidence of [**10] specific
However, the tort-feasor's negligence          previous crimes on or near the premises
will not be excused where the criminal         raises a fact issue on the foreseeability
conduct is a foreseeable result of such        of criminal activity. See e.g., Walkoviak
negligence. Texas courts follow this           v. Hilton Hotel Corp., (victim of robbery
rule. See Castillo v. Sears Roebuck &          sued hotel; two robberies in the vicinity
               Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



of hotel in previous year); Kline v. 1500           entrance -- an area outside an
Massachusetts Ave. Apartment Corp.,                 individual tenant's control --
141 U.S. App. D.C. 370, 439 F.2d 477                as exemplifying a callous
(1970) (victim of assault sued apartment            disregard for the residents'
owner; 20 crimes in building in previous            safety in violation of ordinary
year); Foster v. Winston-Salem Joint                standards of care. Since there
Venture, 303 N.C. 636, 281 S.E.2d 36                was sufficient evidence for
(1981) (victim of assault sued mall                 concluding that the mugging
owner; 29 crimes in mall parking lot in             was a foreseeable result of the
previous year); Butler v. Acme Markets,             landlord's negligence, the
Inc., 89 N.J. 270, 445 A.2d 1141 (1982)             jury's finding of liability was
(victim of assault sued grocery store;              warranted.
seven assaults in parking lot in previous
year); Graham v. M & J Corp., 424 A.2d         Id. at 441.
103 (D.C. App. 1980) (arson victims               Drake v. Sun Bank & Trust Co., a
sued duplex owner; numerous previous          case involving a kidnap from a bank
acts of vandalism in foyer, one prior         parking lot and subsequent murder, is
attempted robbery, high crime area).          especially instructive on this point. In
   In Trentacost v. Brussel, 82 N.J. 214,     Drake, 377 So. 2d 1013 (Ct. of App.,
412 A.2d 436 (1980), the New Jersey           Fla. 1979), the court held that the widow
Supreme Court affirmed a jury award for       failed to allege sufficient facts of
an assault victim and against the             previous crimes to meet the test of
apartment owner. On the issue of              foreseeability, but it remanded to allow
foreseeability, the court stated:             her to amend. When the case was again
                                              appealed, 400 So. 2d 569 (Ct. of App.,
       There was ample evidence               Fla. 1981), the court said allegations that
     that criminal [**11] activity            the bank was in high crime area [**12]
     affecting the Monroe Street              including allegations of similar crimes
     building was reasonably                  on or near the facility were sufficient to
     foreseeable. More than one               state a cause of action for negligence.
     witness testified to the high               Although there is no evidence that
     incidence of crime in the                previous rapes had occurred at
     neighborhood. Plaintiff's own,           Chalmette Apartments, this is not a
     unchallenged        testimony            prerequisite     [*551]     to finding a
     related an attempted theft               material fact issue on foreseeability.
     within the building. Against
     this background, the jury                        It is not required that the
     could readily view the                         particular           accident
     absence of a lock on the front                 complained of should have
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



     been foreseen. All that is                    SPEARS, KILGARLIN
     required is "that the injury be               OPINION
     of such a general character
     as might reasonably have                      KILGARLIN
     been anticipated; and that the                I agree with the result reached by the
     injured party should be so                court. However, I regret that the court
     situated with relation to the             has chosen to avoid consideration of the
     wrongful act that injury to               premise liability doctrine by opting for
     him or to one similarly                   an easier path of relying on a city
     situated might reasonably                 ordinance for the duty determination.
     have been foreseen." [Cite                Given an opportunity to render impotent
     omitted.]                                 one of the last vestiges of feudalism in
                                               our common law, we nevertheless
 Carey v. Pure Distributing Corp., 133         succumb to the blandishments of judicial
Tex. 31, 124 S.W.2d 847, 849 (1939)            torpidity. In doing so, we carve but
(emphasis added). With a litany of prior       another modification to the already
crimes, including other violent and            exception-ridden      premise      liability
assaultive      crime,    at    Chalmette      doctrine. Rather than relying on the
Apartments, and with deposition                happenstance of city actions and other
testimony that vagrants frequented the         judicially sculpted exceptions, I would
area, a material fact question exists on       cast aside doctrinal distinctions as the
the foreseeability of this crime as it         primary determinative of a landowner's
relates to the proximate cause issue.          liability and substitute a general duty of
   We reverse the judgments of the             ordinary care under the circumstances.
courts below and remand the cause to               The present law of landowner
the trial court for trial on the merits.       liability has its origins in the feudal
    [**13]      Concurring Opinion by          period when a man's worth was
Justice Spears.                                measured by his property. A landowner
                                               was then sovereign within his domain
   Concurring    Opinion      by    Justice    and had total [**14] liberty to do with
Kilgarlin.                                     his land as he pleased. F. Bohlen,
  Dissenting Opinion by Justice                Studies in the Law of Torts, 163 (1926).
McGee in which Justice Wallace and             In the nineteenth century, before tort
Gonzalez join.                                 principles were widely recognized or
                                               applied, the English judiciary grew
CONCUR BY: SPEARS; KILGARLIN                   conscious of the danger that landowner
                                               immunity posed to community safety;
CONCUR                                         yet the judges were reluctant to leave the
                                               liability determination to a jury of
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



potential land entrants. Consequently,         but a little, and assume Rhonda was a
the judges created an              entrant     resident of Chalmette Apartments,
classification scheme to circumscribe the      [*552] dragged out of a hallway into a
jury's tendencies to find landowners           vacant apartment and thrice raped.
liable. The Industrial Revolution ushered      Under such a tableau, the whole duty
in a greater number of accidents and the       concept changes. Yet, but for an almost
English courts began to apply emerging         irrelevant municipal ordinance, this
tort    principles    to    the    entrant     court would maintain such duty fictions.
categorization scheme. Marsh, The                  The recent trend of the law, which I
History and Comparative Law of                 would join, has been away from basing a
Invitees, Licensees and Trespassers, 69        landowner's liability on his visitor's
L.Q. Rev. 182 (1953); Recent                   artificially determined purpose of entry.
Development, Torts -- Abrogation of            England, the progenitor of this feudal
Common-Law Entrant Classes of                  vestige, adopted the Occupiers Liability
Trespasser, Licensee, and Invitee, 25          Act of 1957, which imposes upon
Vand. L. Rev. 623, 624 (1972). These           landowners a "common [**16] duty of
classifications were introduced into the       care" toward all visitors, excluding
United States over one hundred years           trespassers. 5 & 6 Eliz. 2, ch. 31 (1957).
ago in Sweeny v. Old Colony & Newport          The United States has been slower to
R.R., 92 Mass (10 Allen) 368 (1865).           annihilate these archaic distinctions. But,
Since that time the majority of American       in Kermarec v. Compagnie Generale
jurisdictions, including Texas, have           Transatlantique, 358 U.S. 625, 630, 79
incorporated [**15]          the entrant       S. Ct. 406, 3 L. Ed. 2d 550 (1959), the
categorization system into substantive         United States Supreme Court recognized
tort law.                                      the inadequacies of the classifications
    It is a system capable of producing        and refused to extend the system to
anomalies that are at once both absurd         admiralty.      Id. at 631. The Court
and harsh. Just picture the court of           explained that American courts have
appeals in this case groping for a             carved numerous exceptions to the
designation for a ten year old girl who        classification system to mitigate its
had been forcibly dragged off the street       harshness. The Court acknowledged the
into an apartment complex. Then, out of        system's difficulties:
obeisance to this outmoded entrant
characterization doctrine, that court                  Even within a single
concluded that little Rhonda was after all           jurisdiction,              the
a trespasser. 675 S.W.2d at 586. As a                classifications           and
trespasser, Mr. Property's duty to her               subclassifications bred by the
was simply not to willfully injure her.              common law have produced
Harsh, yes! Absurd? Substitute the facts             confusion and conflict. As
                 Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



     new distinctions have been                 Russell, 125 Tex. 443, 82 S.W.2d 948
     spawned, older ones have                   [Tex. Comm'n App. 1935, opinion
     become obscured. Through                   adopted]).
     this semantic morass the                       In 1968, California became the first
     common law has moved,                      state to eradicate common law
     unevenly and with hesitation,              distinctions of land entrants. That state's
     towards "imposing on owners                supreme court held that landowners
     and occupiers a single duty of             would be required to exercise ordinary
     reasonable care in all the                 care under the circumstances regardless
     circumstances."                            of the tort [**18] victim's classification.
                                                The California court recognized that the
Id. at 630-31.                                  entrant's status could affect the liability
    Exceptions to the classification            question but it would only affect liability
structure are rampant in the jurisdictions      in determining what "ordinary care
which still adhere to this system. See          under the circumstances" required. The
Note, Tort Liability of Owners and              court reasoned:
[**17] Possessors of Land -- A Single
Standard of Reasonable Care Under the                   A man's life or limb does
Circumstances Towards Invitees and                    not become less worthy of
Licensees, 33 Ark. L. rev. 194, 197                   protection by the law nor a
(1979). Michigan recognizes              an           loss     less     worthy      of
exception for social guests. Preston v.               compensation under the law
Sleziak, 16 Mich. App. 18, 167 N.W.2d                 because he has come upon the
477 (1969). Kentucky modified the                     land of another without
traditional categories by increasing a                permission or with permission
landowner's duty to known and frequent                but without a business
trespassers on a limited area. Louisville             purpose. Reasonable people
& N.R. Co. v. Spoonamore's Adm'r., 278                do not ordinarily vary their
Ky. 673, 129 S.W.2d 175 (1939). Texas                 conduct depending upon such
is no different. In this state, for example,          matters, and to focus upon the
we have excepted from these                           status of the injured party as a
categorizations attractive nuisances (                trespasser, licensee, or invitee
Banker v. McLaughlin, 146 Tex. 434,                   in order to determine the
208 S.W.2d 843 [1949]); dangerous                     question       whether       the
conditions obvious to the owner ( State               landowner has a duty of care,
v. Tennison, 509 S.W.2d 560 [Tex.                     is contrary to our modern
1974]), and anticipated trespassers if the            social         mores        and
landowner engages in a dangerous                      humanitarian values. The
activity ( Gulf, C & S.F. Ry. Co. v.                  common law rules obscure
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



     rather than illuminate the                Electric Cooperative, Inc., 328 So.2d
     proper considerations which               367 (La. 1976), cert. denied, 429 U.S.
     should govern determination               833, 97 S. Ct. 97, 50 L. Ed. 2d 98
     of the question of duty.                  (1976); Ouellette v. Blanchard [**20] ,
                                               116 N.H. 552, 364 A.2d 631 (1976);
 Rowland v. Christian, 69 Cal.2d 108,          Basso v. Miller, 40 N.Y.2d 233, 386
70 Cal. Rptr. 97, 443 P.2d 561, 568            N.Y.S.2d 564, 352 N.E.2d 868 (1976);
(1968).                                        and, Webb v. City and Borough of Sitka,
    Since      Rowland,      eight    other    561 P.2d 731 (Alaska 1977). Six
jurisdictions have held that the invitee,      jurisdictions have applied a uniform
licensee, trespasser categories are not        standard of care for invitees and
determinative,        [*553]      and that     licensees while excluding trespassers.
landowners are [**19] subject to a duty        See Peterson v. Balach, 294 Minn. 161,
of     ordinary       care    under     the    199 N.W.2d 639 (1972); Wood v. Camp,
circumstances. Hawaii was the first            284 So.2d 691 (Fla. 1973); Mounsey v.
state to follow California's lead. Holding     Ellard, 363 Mass. 693, 297 N.E.2d 43
that there is no logical relationship          (1973); Antoniewicz v. Reszczynski, 70
between the entrant classifications and        Wis.2d 836, 236 N.W.2d 1 (1975);
the exercise of reasonable care for the        O'Leary v. Coenen, 251 N.W.2d 746
safety of others, Hawaii abolished the         (N.D. 1977); Poulin v. Colby College,
outdated trinity in Pickard v. City and        402 A.2d 846 (Me. 1979). True, many
County of Honolulu, 51 Hawaii 134, 452         states have rejected abandonment of
P.2d 445 (1969). Colorado was the next         premise liability standards, but only
state to institute a standard of reasonable    fourteen states have done so by
care under the circumstances to avoid          decisions from their courts of last resort.
harsh results and judicial confusion.             In casting aside the premise liability
Mile High Fence Co. v. Radovich, 175           classification, the United States Court of
Colo. 537, 489 P.2d 308 (1971). The            Appeals for the District of Columbia
District of Columbia soon joined those         placed heavy reliance on the decreased
states casting out the archaic troika.         prestige of the landowner in our society.
Smith v. Arbaugh's Restaurant, 152 U.S.        The court said:
App. D.C. 86, 469 F.2d 97, cert. denied,
412 U.S. 939, 93 S. Ct. 2774, 37 L. Ed.                We believe that the
2d 399 (1973). Five years later, five                common law classifications
other states had also concluded that the             are now equally alien to
entrant classification scheme was no                 modern tort law, primarily
longer viable. See Mariorenzi v. Joseph              because   they   establish
DiPonte, Inc., 114 R.I. 294, 333 A.2d                immunities from liability
127 (1975); Cates v. Beauregard                      which no longer [**21]
                 Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



     comport with accepted values               [**22]    law to adapt to societal,
     and common experience.                     economic and moral changes:
     Perhaps      the     protection
     afforded to landowners by                          Legal classifications such as
     these    rules     was     once                  trespasser and licensee are
     perceived as necessary in                        judicial    creations    which
     view of the sparseness of land                   should be cast aside when
     settlements, and the inability                   they are no longer useful as
     of owners to inspect or                          controlling tools for the jury.
     maintain distant holdings. The                   The principle of stare decisis
     prestige and dominance of the                    was not meant to keep a
     landowning class in the                          stranglehold on developments
     nineteenth              century                  which are responsive to new
     contributed to the common                        values, experiences, and
     law's emphasis on the                            circumstances. In our opinion,
     economic         and      social                 the time has come to put an
     importance of free use and                       end to our total reliance on
     exploitation of land over and                    these common law labels and
     above the personal safety of                     to allow the finder of fact to
     those who qualified as                           focus     on    whether     the
     trespassers or licensees.                        landowner has exercised
                                                      "reasonable care under all the
 Smith v. Arbaugh's Restaurant, Inc.,                 circumstances." That standard
469 F.2d at 101. That court also                      [*554] contains the flexibility
recognized the importance of resource                 necessary to allow the jury to
allocation in our society and decided                 take account of the infinite
that, absent legislative action, the jury is          variety of fact situations
in the best position to allocate society's            which affect the foreseeability
resources regarding personal injury.                  of presence and injury, and
Classifying landowner liability decisions             the balance of values which
as "moral and empirical judgments," the               determines the allocation of
court reasoned that the community                     the costs and risks of human
representatives which comprise the jury               injury.
are best qualified to handle these
questions. Id. at 102.                           Id. at 105.
   Resource allocation was only one of              Rather     than      create       further
the bases for that court's destruction of       refinements and exceptions           to the
the land entrant categories. The court          premise liability doctrine, we        should
also relied on the genius of the common         abolish it. The classifications of   invitee,
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



licensee and trespasser are judicial           Although R.M.V. entered the Chalmette
dinosaurs which served a purpose long          apartment      complex      without Mr.
ago when society's values placed great         Property's consent or knowledge, it
emphasis on a man's [**23] property            would be manifestly unjust to classify
holdings. That day is gone, and with it        her as a trespasser when she was
the public-be-damned attitude of J.P.          dragged onto the property by a rapist. I
Morgan. Today's society places a greater       would hold that Mr. Property must act as
emphasis on human safety. In                   a reasonable prudent person in
accommodating this modern trend,               maintaining its property in a reasonably
however, I do not advocate that                safe condition in view of all the
trespassers who enter with an intent to        circumstances, including the likelihood
commit a crime be allowed to recover           of injury to others, the seriousness of the
and would hold that a landowner as a           injury, and the burden on the respective
matter of law has no duty to such a            parties of avoiding the risk. By
trespasser other than as currently exists.     establishing a duty under these
    This case presents a perfect               circumstances, Mr. Property would not
opportunity for casting aside one of the       be an insurer of its property or have to
last remnants of a doctrine whose roots        face     unreasonable        burdens     in
are founded in the feudal system and           maintaining its property.
which has no place in our modern                   I am not ready to discard the
society. This court should follow the          traditional categories of invitee, licensee,
modern trend and abolish this antiquated       and trespasser because they allow
doctrine. For the above reasons, I             judicial certainty and predictable
respectfully concur.                           allocations of liability in most cases.
   Concurring     Opinion     by    Justice    Adoption of an across-the-board
Spears.                                        standard of reasonable care under the
                                               circumstances would replace a stable
    I concur in the judgment of the court,     and established system of loss allocation
but I would not hinge the duty owed to         with confusion and possibly inconsistent
R.M.V. only on the ordinance. In my            and unpredictable rules of law. I am not
view Mr. Property's duty to R.M.V.             sure that juries can be expected to
should not depend solely on the                reconcile the multitude of social policies
existence of an ordinance or the location      implicit [**25] in the assessment of
of the apartments within city limits.          premises liability. Without the guidance
    I would be willing to carve an             of the categories, juries would be given a
exception to the traditional premises          free hand to impose liability without
liability categories of invitee, licensee,     reference to the social policies
and trespasser because the categories          underlying the categories; and, if the
should not be applied [**24] rigidly.          jury is to be instructed to consider the
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



former categories, we gain little or           at the Landmark Apartments, but
nothing by jettisoning them. Gerchberg         accomplished in a vacant unit of the
v. Loney, 223 Kan. 446, 576 P.2d 593,          Chalmette Apartments. The question is
597 (1978). I am not alone in this             answered by determining whether the
position. A clear majority of the states       alleged negligence of the Chalmette
have refused to abandon the common-            Apartments and Mr. Property was a
law status classifications of invitee,         proximate cause of the injury. I would
licensee, and trespasser. Annot., 22           hold that the rape of R.M.V. was not
A.L.R.4th 294 (1983).                          proximately caused by any act or
    The court has decided this case            omission of these defendants as a matter
without creating a new exception to            of law. Rather, the criminal conduct of
traditional premises liability categories      an unknown person in this case was
or abandoning them in favor of a               unforeseeable, and a superseding cause.
reasonable care under the circumstances        Therefore, I dissent.
test. By hinging the duty owed to                  CAUSE IN FACT
R.M.V. on the ordinance, the court has            The two elements of proximate cause
not foreclosed either an exception to or       are cause in fact and foreseeability.
abandonment      of    the     traditional     Clark v. Waggoner, 452 S.W.2d 437,
categories in the future. I would retain       439 (Tex. 1970). In Kerby v. Abilene
the categories until we can evaluate the       Christian College, 503 S.W.2d 526 (Tex.
ramifications of adopting the single           1973), this court adopted a "but for" test
standard of care in light of the results       to determine cause in fact. Under Kerby,
experienced by states which have               the alleged negligence is not a cause in
adopted such a standard.                       fact unless "but for the conduct the
                                               accident would not have happened." 503
DISSENT BY: McGEE                              S.W.2d at [**27] 528.
DISSENT                                           The majority's analysis of cause in
                                               fact is premised on the fact that R.M.V.
    [*555] MCGEE, Justice                      was taken "directly to a vacant
   OPINION                                     apartment at the Chalmette Apartments."
    There were [**26] four defendants          The majority views City of Mobile v.
in the trial court. The suit against           Largay, 346 So.2d 393 (Ala. 1977), as a
Landmark        Apartments     and      its    cause in fact case. The majority states
management company has been settled.           that in Largay, the assailant did not take
The question in this cause is whether the      Largay directly to the city museum. It is
Chalmette Apartments and Mr. Property          upon this basis that the majority attempts
Management Company may be held                 to distinguish Largay. I find Largay
liable for the rape of a minor originating
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



indistinguishable and would follow it in       failed to abduct the plaintiff or
the present cause.                             consummate the crime in the plaintiff's
   In Largay, the plaintiff was abducted       car, merely utilized the nearest available
on a public street beside a vacant city        instrumentality. In the event that the city
museum. As Largay was leaving her car,         museum was locked, the rape may have
an unknown man approached her, pulled          occurred in a temporarily unoccupied
a knife, and forced her back into her          automobile, business, or unfenced
own car. The assailant attempted to start      vacant lot.
the car and subsequently "dragged her             Largay is squarely on point with the
down the sidewalk and through an open          case at bar in that here, had the rape not
cellar door into the vacant city museum        occurred in a vacant unit of the
building owned by the City of Mobile."         Chalmette Apartments, the nearest
346 So.2d at 394. The Largay court did         available place of solitude [**29] would
not place "heavy emphasis" on the              have afforded a suitable location for the
assailant's use of the building as a last      crime. Had R.M.V. been abducted from
resort. Indeed, the case did not, and          a private apartment building and
could not, turn on the unknown                 dragged into an unlocked city pickup
subjective intent of the assailant. Rather,    truck, would the City of Dallas be liable
the Largay court based its opinion on          for the rape? had R.M.V. been abducted
foreseeability and [**28] held "as a           from a city street and dragged into an
matter of law, that the use of the             unlocked private garage, would the
unlocked cellar for perpetration of rape       landowner be liable for the rape? Had
was not a reasonably foreseeable               R.M.V. been abducted from a
consequence of the City's failure to           neighborhood store and dragged to a
maintain the building." 346 So.2d at           neighbor's backyard, would the neighbor
395. (Emphasis in original). Thus, the         be liable? I think not. [*556] A missing
facts and reasoning of Largay recognize        or unlocked door at the Chalmette
that the occurrence of the rape in the city    Apartments was not a cause in fact of
museum was unforeseeable.                      R.M.V.'s rape. Under the facts presented
   Although Largay is premised on              here, the criminal's fortuitous choice of
foreseeability and cause in fact was not       venue is not sufficient to satisfy the "but
discussed, I view Largay as support for        for" test announced in Kerby.
the position that the alleged negligence           FORESEEABILITY
of the Chalmette Apartments was not a              I would also hold that the rape was
cause in fact of the rape. Largay and the      not a foreseeable result of the alleged
case at bar are distinguished from             failure to maintain a properly secured
numerous other cases in that both              door on a vacant unit of the Chalmette
plaintiffs were dragged onto the               Apartments.             RESTATEMENT
premises. In Largay, the rapist, having
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



(SECOND) OF TORTS § 448 (1965),                      (SECOND) (1966) on the
provides that an intentional tort or crime           shopkeepers [**31]          and
is not a superseding cause if "the actor at          merchants of Texas to
the time of his negligent conduct                    exercise reasonable care to
realized or should have realized the                 discover the sudden criminal
likelihood that such a situation might be            acts    of    unknown       and
created, and that a third person [**30]              unidentified persons. . . .
might avail himself of the opportunity to
commit such a tort or crime." The
majority cites Castillo v. Sears Roebuck        663 S.W.2d at 66. In Walkoviak, the
& Co., 663 S.W.2d 60 (Tex. App. -- San         plaintiff was assaulted in the parking lot
Antonio 1983, writ ref'd n.r.e.); and          of the Shamrock Hilton Hotel. The suit
Walkoviak v. Hilton Hotels Corp., 580          was premised on Restatement § 344 and
S.W.2d 623 (Tex. Civ. App. -- Houston          the innkeeper's alleged failure to supply
[14th Dist.] 1979, writ ref'd n.r.e.), for     adequate security protection or guards.
the broad proposition that a tort-feasor's     580 S.W.2d at 625. Morris v. Barnette,
negligence is not excused in the case of       553 S.W.2d 648, 649 (Tex. Civ. App. --
foreseeable criminal conduct. I do not         Texarkana, 1977, writ ref'd n.r.e.), and
agree with the majority's statement that       Eastep v. Jack-in-the-Box, Inc., 546
"Texas courts follow this rule," or            S.W.2d 116 (Tex. Civ. App. -- Houston
Restatement § 448 in a case such as this.      [14th Dist.] 1977, writ ref'd n.r.e.), are
   In Castillo, the plaintiffs were            also both grounded on section 344. Our
approached in a Sears store, told to step      courts of appeals are split on the
outside, and assaulted on the parking lot.     question of whether a landowner, under
The Castillo opinion was not based on          section 344, has a duty to foresee and
Restatement § 448. Rather, the court           guard against criminal conduct occurring
focused on the duty owed to the public         on the premises. In addition, this court
by a possessor of land who holds the           has never recognized the application of
premises open to the public for business       either section 344 or section 448.
purposes. RESTATEMENT OF TORTS                 Therefore, liability due to the criminal
(SECOND) § 344 (1965). Indeed, the             acts of unknown third persons is far
Castillo court expressly refused to            from the settled rule of law which the
impose liability based on section 344:         majority suggests.
                                                  The distinction between liability
      It is our opinion that it                based on sections 344 and 448 is
     would be patently unfair and              significant. Under section 344, the
     unjust to impose the vague                innkeeper or business [**32] owner
     duty    of   section    344,              who throws his premises open to the
     RESTATEMENT OF TORT                       public has a higher duty to exercise
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



reasonable care because of the purpose         Neither the apartment owner nor
for which the public has entered. It is a      manager had knowledge of other
significant extension to hold that under       instances of crime from which they
section 448, a landowner may be held           realized the possibility of rape.
liable if he fails to foresee and guard        Therefore, the first prong of Restatement
against criminal attacks originating off       § 448 cannot be the basis for liability in
the premises, but accomplished on the          this cause.
landowner's property. Indeed, section             Thus, the foreseeability issue in this
448 is not limited to landowners, but by       cause is reduced to an analysis of the
its express terms applies to any negligent     second prong of Restatement § 448.
tortfeasor. I would refuse to apply            Should the Chalmette Apartments have
section 448 in this cause because,             realized the possibility that a young girl
assuming that it should be adopted, the        would be abducted off the premises,
criminal attack on R.M.V. was                  dragged into a vacant apartment, and
unforeseeable as a matter of law.              raped?
   Under Restatement § 448, liability is           The majority assigns "deposition
imposed only if the actor (1) realized, or     testimony that vagrants frequented the
(2) should have realized the likelihood        area" as one of the two reasons for the
of the commission of an intentional tort       existence of "a material fact question . . .
or crime by a third person. Under the          on the foreseeability of this crime." I
facts of this cause, neither the realized      find the evidence presented in City of
nor should have realized prong of              Mobile v. Largay to be much more
Restatement § 448 has been met.                compelling than the facts of the present
    [*557] The first prong of section          [**34] cause. In Largay, the court
448 has not been met because there is no       stated that
showing in the record that the Chalmette
Apartments actually realized the                       there was some testimony
possibility of a rape occurring on its               which indicated that prior to
premises because of its knowledge                    this incident the building had
[**33] of other specific instances of                been broken into on several
crime. The president of Mr. Property                 occasions. According to other
stated in a deposition that he was not               testimony,     "winos"     and
aware of any specific reported instances             derelicts slept in the cellar
of crime in the Chalmette Apartments.                area of the building; wine and
Davis, the owner of Chalmette                        whiskey bottles littered the
Apartments, stated that he was not aware             area in and around the
of any criminal activity, rapes, assaults,           building; and cars parked in
or burglaries occurring at the Chalmette             the vicinity of the building
Apartments prior to the rape of R.M.V.               had been broken into.
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



     Photographs [demonstrated                 Under the majority's analysis, the owner
     the] state of disrepair.                  is chargeable with such knowledge, and
                                               therefore may be held liable for a crime
 346 So.2d at 394. However, in spite of        occurring years later on the same
these facts, the Largay court held that no     premises.
"reasonable inference in support of               I view the majority opinion as
plaintiff's case on the issue of proximate     unsupportable, and indeed, the majority
cause" was established as a matter of          can cite no case which supports the
law. Id. at 395. I agree with the Largay       proposition that knowledge of crimes
court that this evidence does not raise a      occurring before purchase may be
fact issue on foreseeability.                  imputed to the present landowner.
    The second reason relied on by the         Therefore, the majority analysis is
majority for the existence of a fact           fundamentally flawed in failing to
question is the occurrence of numerous         recognize the indisputable proposition
instances of prior violent crime at the        that the only crimes relevant in this
Chalmette Apartments. The majority             cause are those occurring after [**36]
states that the rape in the present cause      the purchase of the Chalmette
was foreseeable because in the two years       Apartments in March, 1981. Taken in
prior to the rape of R.M.V., "one              proper context, the record reflects that
attempted murder, two aggravated               the majority's "litany of prior crimes,
robberies, two aggravated assaults,            including other violent and assaultive
sixteen apartment burglaries, [**35]           crime" is reduced to only one "assault,"
four vehicle burglaries, four cases of         for property related burglaries, and one
theft, five cases of criminal mischief,        case of criminal mischief.
and one auto theft" occurred at the                [*558] The "assault" involved a
Chalmette      Apartments.     Deposition      dispute between common law spouses in
testimony shows that the Chalmette             which the husband kicked and choked
Apartments were purchased by Davis in          the wife, causing minor scrapes and
March of 1981. Mr. Property assumed            scratches to the body. The wife refused
management of the complex on March             to press charges. The case of criminal
27, 1981. Crimes which occurred prior          mischief involved the removal of a
to the purchase and assumption of              mailbox door. As a result of the
management cannot possibly be imputed          burglaries, a total of five television sets,
to these defendants so as to put them on       four stereos, two radios, one clock, and
notice of the possible rape of R.M.V.          one telephone were stolen from residents
Can it be said that through the purchase       of the Chalmette Apartments. With the
of a home or building, a landowner is on       exception of the intra-family "assault,"
notice of every crime occurring on the         not one of the crimes which occurred
premises since the date of construction?       after March of 1981 was even remotely
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



concerned with bodily harm. All were           issue on foreseeability. The plaintiff was
non-assaultive, property related crimes.       under a duty to raise a fact issue through
No      rapes,    murders,     robberies,      evidence of the [**38] existence of
aggravated assaults, muggings, or other        other crimes of the same general
violent conduct indicating a likelihood        character as the rape of R.M.V. No such
of future personal harm occurred on the        evidence was offered. Viewing the
premises.                                      plaintiff's evidence in the light most
   Applying the majority's own test, as        favorable to her, I find it impossible to
set out in Carey v. Pure Distributing          think that because of the occurrence of a
Corp., 133 [**37] Tex. 31, 35, 124             domestic dispute and non-violent
S.W.2d 847, 849 (1939), the "general           property     crimes,     the     Chalmette
character" of this violent crime could not     Apartments should have realized the
"reasonably have been anticipated" as a        possibility of a violent rape originating
result of property crimes or domestic          off the premises, but accomplished in a
disputes. Property crimes and domestic         vacant apartment unit. Foreseeability
disputes are not of the same general           does not exist in this cause as a matter of
character as a rape. Murders, rapes,           law. The trial court correctly granted the
aggravated assaults, assaults, robberies,      motion for summary judgment filed by
or other violent crimes between non-           the Chalmette Apartments and Mr.
family members are crimes of the same          Property.
general character as the rape of R.M.V.           The majority opinion sets dangerous
If evidence of other violent crimes was        precedent and shuns legal support in
included in the summary judgment               holding that the plaintiff is entitled to a
proof, I might agree that a fact question      jury trial. Therefore, I reject the
for the jury would exist under Carey.          majority's result, as well as the rationale
However, there is no evidence of other         underlying it. Under the majority
crimes of the same general character as        opinion, the Chalmette Apartments and
the rape of R.M.V.                             Mr. Property are forced to defend a
   We have held that the non-movant, in        lawsuit because the plaintiff has been
order to overcome a motion for                 criminally assaulted on its premises. In
summary judgment due to the                    other cases which are similar to the
nonexistence of a material fact "must          present cause, the plaintiff need only
present summary judgment proof when            offer proof of repeated incidents of
necessary to establish a fact issue." City     shoplifting, theft, or other property
of Houston v. Clear Creek Basin                crime in order to overcome a motion
Authority, 589 S.W.2d 671, 678 (Tex.           [**39] for summary judgment. This is
1979). It was "necessary" for the              the evidence offered in the present
plaintiff to offer summary judgment            cause. The crimes need not occur at a
proof in this cause establishing a fact        time when the defendant owned the
                Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



property. The crimes need not be of the        majority's position that this attack was
same general character as that                 foreseeable.
perpetrated upon the plaintiff. Under the          The majority does cite Walkoviak as
majority opinion, any crime occurring          an example of a case where two
on the premises is competent summary           robberies in the vicinity of the hotel
judgment evidence. The majority                established the foreseeability of criminal
opinion does great violence to our             activity.    However,     the     majority
summary judgment practice under Rule           overlooks additional facts presented in
166-A and I fear the implications. In          Walkoviak. The Walkoviak court
Clear Creek, this court stated that "the       specifically noted that because the two
pre-1978 summary judgment rule had a           "victims came or were brought to the
chilling effect on the willingness of trial    hotel for help, the hotel was then aware
courts to utilize the intended benefits of     of facts" which gave the hotel specific
the procedure. . . . The new rule attempts     knowledge of past crimes, and therefore,
to encourage the trial court to utilize the    made the hotel aware of the likelihood
summary judgment in appropriate                of future crime on the premises. 580
cases." 589 S.W.2d at 676. The majority        S.W.2d at 626. Thus, Walkoviak, as well
opinion will discourage rather than            as four other cases cited by the majority
encourage the use of summary                   are all based on the landowner's actual
judgments in appropriate cases such as         knowledge of specific instances of crime
the one [*559] before us. I cannot agree       in the past. See Kline [**41] v. 1500
with such an analysis in the present           Massachusetts Avenue Apartment Corp.,
cause. I will not agree with the               141 U.S.App.D.C. 370, 439 F.2d 477,
majority's analysis in the many cases          479 (D.C. Cir. 1970) ("The landlord had
which will follow from it.                     notice of these crimes and had in fact
    Not one of seven cases cited by the        been urged by appellant Kline herself
majority is on point or in support of its      prior to the events leading to the instant
position. No case cited by the majority        appeal to take steps to secure the
[**40]     deals with an off-premises          building."); Foster v. Winston-Salem
abduction of the plaintiff. No case cited      Joint Venture, 303 N.C. 636, 281 S.E.2d
by the majority is premised on                 36,       40     (1981)      ("Defendants
Restatement § 448. No case deals with          acknowledged that these incidents had
the inference of foreseeable violent           been reported and that they were aware
crime merely because of the occurrence         of them."); Trentacost v. Brussel, 82 N.J.
of prior non-violent property crimes and       214, 412 A.2d 436, 439 (1980) (plaintiff
domestic disputes. No such cases are           at other times "had notified the landlord
cited by the majority because City of          of the presence of unauthorized persons
Mobile v. Largay, the only case which          in the hallways. Plaintiff claimed the
can be cited, stands squarely against the      defendant had promised to install a lock
                 Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



on the front door . . . .") §; and Graham           In Butler v. Acme Markets, Inc., 89
v. M & J Corp., 424 A.2d 103, 105-06            N.J. 270, 445 A.2d 1141 (1982), the
(D.C. App. 1980) ("The tenants                  court held that an assault on the plaintiff
frequently complained to the landlord           was foreseeable when five muggings
about the absence of an outer door lock.        were committed during the preceding
They explained to the rental agent that         four months. However, the facts
intruders and strangers entered the foyer       presented in Butler [**43] are far from
through the open door and committed             the facts presented in the instant cause.
acts of vandalism . . . [plaintiff] told the    The assault suffered by the plaintiff in
rental agent of an attempted burglary           Butler was of the same general character
through her window."). In cases where           as the muggings previously occurring on
the landowner has actual knowledge,             the premises. Therefore, the assault in
fewer criminal [**42] acts of the same          Butler was foreseeable because the past
general character will suffice to make          history of muggings made a future
the landowner aware of the likelihood of        mugging probable and predictable, not
a criminal assault. In this cause we do         merely conceivable or possible.
not have actual knowledge of criminal               [*560] Any injury suffered by a
acts. We do not have crimes of the same         member of our society may be said to be
general character as a rape. We have no         possible. Yet, in order for an injury to be
crimes from which these defendants              compensable, it must to a degree be said
should have realized the possibility of         to be the probable result of a negligent
rape. Therefore, these cases simply have        act or omission of the defendant. Indeed,
no application in an analysis of the facts      the difference between an injury which
of this cause.                                  to some degree is probable and one
    In Drake v. Sun Bank & Trust Co.,           which is merely possible is the
400 So.2d 569 (Fla. Ct. App. -- 1981),          difference between         liability and
the court merely stated that because of         exoneration from liability. The facts in
other similar crimes occurring on the           this cause demonstrate that it is possible
property, the landowner should have             for a young girl to be abducted, dragged
known of the chance of an assault               across a public street, and raped in a
against a customer on the premises.             vacant     unit    of    the     Chalmette
Drake is not "instructive" on the point of      Apartments. However, I would hold that
foreseeability because the court did not        this possibility was not to any degree a
state the number of other crimes, the           probable consequence of the alleged
frequency of occurrence, the type or            failure to secure an apartment door. The
general character of crimes, nor how            Chalmette Apartments should not have
long the criminal acts had been                 realized the likelihood of rape merely
occurring on the property.                      because of the occurrence [**44] of a
               Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)



domestic dispute and five prior property      in fact nor a foreseeable result of the
crimes.                                       alleged negligence of these defendants. I
   I would adhere to the foreseeability       would hold that proximate cause was
analysis set out by the court in City of      disproved as a matter of law because the
Mobile v. Largay, 346 So.2d 393 (Ala.         criminal assault by an unknown assailant
1977). The Largay court held that the         was a superseding cause.
criminal assault was unforeseeable as a           I would affirm the judgments of the
matter of law. The criminal conduct of        trial court and court of appeals.
an unknown assailant in this cause was          Dissenting Opinion in which Justices
also unforeseeable as a matter of law.        Wallace and Gonzalez join.
The injury to R.M.V. was neither caused
        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
                State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)




           STATE OF TEXAS, APPELLANT v. BOB MATYASTIK,
                          ET AL., Appellees

                                     No. 632-90

                COURT OF CRIMINAL APPEALS OF TEXAS

                811 S.W.2d 102; 1991 Tex. Crim. App. LEXIS 90

                              May 8, 1991, Delivered

PRIOR HISTORY:          [**1] Petition            This is a criminal bail bond forfeiture
for Discretionary Review from the Tenth       case. The State petitioned this Court for
Court of Appeals; Robertson County.           review on four grounds, two of which
                                              we granted, to-wit: 1) to determine
                                              whether the court of appeals erred in
COUNSEL: Attorney for appellant:              finding      Art.   22.16,     V.A.C.C.P.,
Jimmie McCullough, D. A. & Dale               constitutional; and 2) to determine
Freeman, Asst. D. A., Franklin, Texas.        whether the court of appeals erred in
                                              affirming the trial court's remittitur of a
Attorneys for appellee: Jane Matyastik        final judgment without a bill of review
Vorwerk, Taylor, Texas, Bob Matyastik,        or proper appellate procedure. Because
pro se, Cameron, Texas.                       we find Art. 22.16(a) and (c)(1),
                                              V.A.C.C.P., unconstitutional we will
Attorney for State: Robert Huttash,           reverse the court of appeals.
State's Attorney, Austin, Texas.
                                                 Herbert Clifton Sheeley, charged
JUDGES: En Banc. Miller, Judge.               with the misdemeanor of violation of
Campbell, Judge, not participating.           probation on an original charge of
                                              driving while intoxicated, [*103] failed
OPINION                                       to appear for [**2] trial on January 22,
                                              1988. The trial court then rendered a
[*102]  OPINION ON  STATE'S                   judgment nisi for $ 2,500, the bond
PETITION FOR DISCRETIONARY                    amount, against the principal, Herbert
REVIEW                                        Sheeley, and Bob Matyastik and Dolores
                  State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)



Sheeley, sureties. On June 27, 1988,               ...
appellees filed a motion for remittitur            (4) the principal is deceased; . . . Art.
pursuant to Art. 22.16, V.A.C.C.P.,             22.16(c) provides:
alleging that the principal, Herbert
Sheeley, had died on May 23, 1988,                 (c) A final judgment may be entered
citing Art. 22.16(a)(4). Additionally,          against a bond not earlier than:
appellant requested remittitur based on            (1) nine months after the date the
the fact that the offense was a                 forfeiture was entered, if the offense for
misdemeanor and less than nine months           which the bond was given is a
had passed since the bond forfeiture.           misdemeanor; or
Art. 22.16(c)(1). The trial court ordered
                                                   (2) 18 months after the date the
remittitur on June 27, 1988. The State
                                                forfeiture was entered, if the offense for
petitioned the trial court to vacate the
                                                which the bond was given is a felony.
order, which was denied.
    The State appealed the order of                   1 Points one and two asserted that
remittitur to the Tenth Court of Appeals              the trial court erred in granting the
raising sixteen points of error. 1 The                remittitur order on June 27 because
court of appeals overruled all sixteen                the trial court lacked jurisdiction,
points and affirmed the judgment of the               the judgment having become final
trial court in an unpublished opinion.                on June 20. Points three through
State v. Matyastik, et al., (Tex.App. --              six alleged insufficient evidence of
Waco, No. 10-88-162-CV, delivered                     the death of the principal on the
January 25, 1990). The critical question              bond. Points seven through
raised in the court of appeals and in this            fourteen alleged that Art. 22.16,
Court is the constitutionality of Art.                V.A.C.C.P., was unconstitutional as
22.16, V.A.C.C.P. Specifically, two                   a violation of the separation of
sections of the statute are in issue. Art.            powers. Points fifteen and sixteen
[**3] 22.16(a) provides in pertinent                  asserted trial court error in not
part:                                                 giving credence to the State's claim
   (a) After forfeiture of a bond and                 for recovery on a contract theory if
before the expiration of the time limits              the remittitur question was
set by Subsection (c) of this article, the            resolved in appellant's favor.
court shall, on written motion, remit to            [**4] The court of appeals found
the surety the amount of the bond after         Art. 22.16 constitutional in its entirety.
deducting the costs of court, any               This Court, however, has since found
reasonable costs to the county for the          Art. 22.16(c)(2) unconstitutional as a
return of the principal, and the interest       violation of the separation of powers
accrued on the bond amount as provided          provision of the Texas Constitution.
by Subsection (e) of this article if:
                  State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)



TEX.CONST.art. 2, § 1. 2 See Armadillo          S.W.2d at 240. In analyzing the statutory
Bail Bonds v. State, 802 S.W.2d 237             interference with the judiciary's "core
(Tex.Cr.App. 1990).                             power" [to enter final judgments], the
                                                Court reasoned " . . . if Article
     2   Article 2, § 1 of the Texas            22.16(c)(2) is valid, then the Legislature
     Constitution provides:                     has the power to render the Judiciary
         The powers of the Government           impotent with respect to the entry of
     of the State of Texas shall be             final judgments." Id. at 241.
     divided    into     three    distinct
     departments, each of which shall                 3      The court of appeals in
     be confided to a separate body of                Armadillo Bail Bonds noted that
     magistracy, to wit: Those which                  "nothing prevents the legislature
     are Legislative to one, those which              from imposing an interminable
     are Executive to another, and those              delay in obtaining final judgment."
     which are Judicial to another; and               Armadillo Bail Bonds v. State, 772
     no person, or collection of persons,             S.W.2d 193, 197 (Tex.App. --
     being of one of these departments,               Dallas 1989) (emphasis supplied).
     shall exercise any power properly                See Armadillo Bail Bonds, 802
     attached to either of the others,                S.W.2d at 239.
     except in the instances herein                 [**6] As this Court noted, the
     expressly permitted.                       separation of powers provision may be
    In Armadillo Bail Bonds this Court          violated when one branch exercises
held that the statute prohibiting entry of      power that is more appropriately
a final judgment in a bail bond forfeiture      connected with another branch or when
felony case until 18 months after [**5]         one branch unduly interferes with
entry of forfeiture [Art. 22.16(c)(2)           another to the extent that the other
unduly interfered with the judiciary's          branch cannot effectively exercise its
effective exercise of its constitutionally      constitutional powers. See Armadillo
assigned power to enter final judgments.        Bail Bonds, 802 S.W.2d at 239 and cases
3
  See TEX.CONST.art. 5, § 1 (judicial           cited therein. Article 22.16(c)(2)
power constitutionally vested in certain        restrained the court from entering a final
courts). This Court has envisioned such         judgment in that case, a felony, for at
power to include inter alia the entry of a      least a period of 18 months, thereby
final judgment on the facts and the law         interfering with the judiciary's "core
and the execution of a final judgment           power" of entering a final judgment.
[*104] or sentence. Kelley v. State, 676        Thus, the Court held the statute
S.W.2d 104, 107 (Tex.Cr.App. 1984) and          unconstitutional because it violated the
cases cited therein. We reaffirmed this         separation of powers provision of the
concept in Armadillo Bail Bonds, 802            State Constitution in that the statute
                   State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)



allowed the legislature to usurp a               of a statute does not necessarily destroy
judicial function. Id.                           the whole act). See also Meshell v. State,
    The case sub judice deals with a             739 S.W.2d 246 (Tex.Cr.App. 1987)
misdemeanor and thus activates section           (separation of powers case discussing
(c)(1) of the statute, which prohibits the       severability of statutes). We [**8] note
court from entering a final judgment in          that subsection (a) is contingent upon the
such a case for a nine month time                time      limitations    established     in
period. Comparatively, Armadillo Bail            subsection (c), and thus has no effect
Bonds was a felony case with an 18-              without the invalid provisions. Recently
month time restriction, while the case at        we stated in Jones that " . . . should part
bar involves a misdemeanor with a nine-          of the bill be held invalid . . . 'the
month time limit. We find the reasoning          remainder of the statute must be
with [**7] regard to section (c)(2) in           sustained if it is complete in itself and
Armadillo Bail Bonds applicable to the           capable of being executed in accordance
situation in the case at bar with regard to      with the intent wholly independent of
section (c)(1), since both sections              that which has been rejected.'" Id., slip
concern a legislatively imposed statutory        op. at 2, quoting Tussey v. State, 494
restraint on a trial court's ability to          S.W.2d 866, 870 (Tex.Cr.App. 1973).
utilize its power to enter final                 Because subsection (a) cannot be
judgments. We thus extend the                    executed or have any effect without
Armadillo Bail Bonds ruling to apply in          utilizing the provisions of subsection (c),
misdemeanor cases, and therefore hold            we hold that the portion of Art. 22.16(a),
Art.        22.16(c)(1),       V.A.C.C.P.,       V.A.C.C.P., utilizing subsection (c) is
unconstitutional.                                invalid under Article 2, § 1 of the Texas
                                                 Constitution. 5 Thus, remittitur now may
    Having      determined       that    Art.    be done anytime between forfeiture and
22.16(c)(1) and (2) unduly interfere with        entry of a final judgment. The State's
the court's exercise of the judicial             first ground for review is sustained.
function, we now examine whether the
same is true of Art. 22.16(a), which                   4 Section 311.032(c) of the Code
provides in pertinent part: (a) After                  Construction Act reads as follows:
forfeiture of a bond and before the
expiration of the time limits set by                      (c) In a statute that does not
Subsection (c) of this article, the court              contain a provision for severability
shall . . . (emphasis added). It is well               or nonseverability, if any provision
settled that if one part of a statute is held          of the statute or its application to
unconstitutional, the remainder of the                 any person or circumstance is held
statute continues to be valid. Tex. Gov't              invalid, the invalidity does not
Code Ann. § 311.032(c). 4 Ex parte                     affect    other    provisions     or
Jones, 803 S.W.2d 712 (invalidity of part              applications of the statute that can
                  State v Matyastik, 811 S.W.2d 102 (Tex. Crim. App. 1991)



    be given effect without the invalid
    provision or application, and to this
    end the provisions of the statute are
    severable.
[**9]
    5        Although I dissented in
    Armadillo Bail Bonds, I strongly
    adhere to the doctrine of "stare
    decisis," which leads to the ruling
    in the instant case.
   [*105]         Having decided the
constitutional issue in the case at bar, we
need not address the State's second
ground for review. The judgment of the
court of appeals is reversed and the
remittitur order of the trial court is
vacated.
                    LexisNexis (R) Texas Annotated Statutes
             Copyright © 2014 by Matthew Bender & Company, Inc.
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                     CODE OF CRIMINAL PROCEDURE
            TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965
                    ARREST, COMMITMENT AND BAIL
                           CHAPTER 17. BAIL

Art. 17.01. Definition of "Bail"

  "Bail" is the security given by the accused that he will appear and answer before
the proper court the accusation brought against him, and includes a bail bond or a
personal bond.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966.
Art. 17.02. Definition of "Bail Bond"

  A "bail bond" is a written undertaking entered into by the defendant and the
defendant's sureties for the appearance of the principal therein before a court or
magistrate to answer a criminal accusation; provided, however, that the defendant
on execution of the bail bond may deposit with the custodian of funds of the court
in which the prosecution is pending current money of the United States in the
amount of the bond in lieu of having sureties signing the same. Any cash funds
deposited under this article shall be receipted for by the officer receiving the funds
and, on order of the court, be refunded, after the defendant complies with the
conditions of the defendant's bond, to:
      (1) any person in the name of whom a receipt was issued, in the amount
reflected on the face of the receipt, including the defendant if a receipt was issued
to the defendant; or
     (2) the defendant, if no other person is able to produce a receipt for the funds.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 2011, 82nd Leg., ch. 978 (H.B. 1658), § 1, effective
September 1, 2011.
Art. 17.08. Requisites of a Bail Bond

 A bail bond must contain the following requisites:
     1. That it be made payable to "The State of Texas";
     2. That the defendant and his sureties, if any, bind themselves that the
defendant will appear before the proper court or magistrate to answer the
accusation against him;
     3. If the defendant is charged with a felony, that it state that he is charged with
a felony. If the defendant is charged with a misdemeanor, that it state that he is
charged with a misdemeanor;
     4. That the bond be signed by name or mark by the principal and sureties, if
any, each of whom shall write thereon his mailing address;
     5. That the bond state the time and place, when and where the accused binds
himself to appear, and the court or magistrate before whom he is to appear. The
bond shall also bind the defendant to appear before any court or magistrate before
whom the cause may thereafter be pending at any time when, and place where, his
presence may be required under this Code or by any court or magistrate, but in no
event shall the sureties be bound after such time as the defendant receives an order
of deferred adjudication or is acquitted, sentenced, placed on community
supervision, or dismissed from the charge;
      6. The bond shall also be conditioned that the principal and sureties, if any,
will pay all necessary and reasonable expenses incurred by any and all sheriffs or
other peace officers in rearresting the principal in the event he fails to appear
before the court or magistrate named in the bond at the time stated therein. The
amount of such expense shall be in addition to the principal amount specified in
the bond. The failure of any bail bond to contain the conditions specified in this
paragraph shall in no manner affect the legality of any such bond, but it is intended
that the sheriff or other peace officer shall look to the defendant and his sureties, if
any, for expenses incurred by him, and not to the State for any fees earned by him
in connection with the rearresting of an accused who has violated the conditions of
his bond.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), effective
January 1, 1966; am. Acts 1999, 76th Leg., ch. 1506 (S.B. 403), § 1, effective
September 1, 1999.
                    LexisNexis (R) Texas Annotated Statutes
             Copyright © 2014 by Matthew Bender & Company, Inc.
                       a member of the LexisNexis Group
                              All rights reserved.

      *** This document is current through the 2013 3rd Called Session ***

                   CODE OF CRIMINAL PROCEDURE
          TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965
        AFTER COMMITMENT OR BAIL AND BEFORE THE TRIAL
                 CHAPTER 22. FORFEITURE OF BAIL

Art. 22.10. Scire Facias Docket

  When a forfeiture has been declared upon a bond, the court or clerk shall docket
the case upon the scire facias or upon the civil docket, in the name of the State of
Texas, as plaintiff, and the principal and his sureties, if any, as defendants; and,
except as otherwise provided by this chapter, the proceedings had therein shall be
governed by the same rules governing other civil suits.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 1981, 67th Leg., ch. 312 (S.B. 727), § 3, effective
August 31, 1981; am. Acts 1999, 76th Leg., ch. 1506 (S.B. 403), § 4, effective
September 1, 1999.
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:
       1. That the bond is, for any cause, not a valid and binding undertaking in law.
If it be valid and binding as to the principal, and one or more of his sureties, if any,
they shall not be exonerated from liability because of its being invalid and not
binding as to another surety or sureties, if any. If it be invalid and not binding as to
the principal, each of the sureties, if any, shall be exonerated from liability. If it be
valid and binding as to the principal, but not so as to the sureties, if any, the
principal shall not be exonerated, but the sureties, if any, shall be.
     2. The death of the principal before the forfeiture was taken.
     3. The sickness of the principal or some uncontrollable circumstance which
prevented his appearance at court, and it must, in every such case, be shown that
his failure to appear arose from no fault on his part. The causes mentioned in this
subdivision shall not be deemed sufficient to exonerate the principal and his
sureties, if any, unless such principal appear before final judgment on the bond to
answer the accusation against him, or show sufficient cause for not so appearing.
     4. Failure to present an indictment or information at the first term of the court
which may be held after the principal has been admitted to bail, in case where the
party was bound over before indictment or information, and the prosecution has
not been continued by order of the court.
     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; or
       (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.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 2003, 78th Leg., ch. 942 (S.B. 1336), § 1, effective June
20, 2003.
Art. 22.16. Remittitur After Forfeiture

  (a) After forfeiture of a bond and before entry of a final judgment, the court shall,
on written motion, remit to the surety the amount of the bond, after deducting the
costs of court and any reasonable and necessary costs to the county for the return
of the principal, and the interest accrued on the bond amount as provided by
Subsection (c) if the principal is released on new bail in the case or the case for
which bond was given is dismissed.
   (b) For other good cause shown and before the entry of a final judgment against
the bond, the court in its discretion may remit to the surety all or part of the amount
of the bond after deducting the costs of court and any reasonable and necessary
costs to the county for the return of the principal, and the interest accrued on the
bond amount as provided by Subsection (c).
   (c) For the purposes of this article, interest accrues on the bond amount from the
date of forfeiture in the same manner and at the same rate as provided for the
accrual of prejudgment interest in civil cases.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966; am. Acts 1981, 67th Leg., ch. 312 (S.B. 727), § 5, effective
August 31, 1981; am. Acts 1987, 70th Leg., ch. 1047 (S.B. 185), § 3, effective
June 20, 1987; am. Acts 2003, 78th Leg., ch. 942 (S.B. 1336), § 2, effective June
20, 2003.
Art. 22.17. Special Bill of Review

  (a) Not later than two years after the date a final judgment is entered in a bond
forfeiture proceeding, the surety on the bond may file with the court a special bill
of review. A special bill of review may include a 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, any reasonable costs to the
county for the return of the principal, and the interest accrued on the bond amount
from the date of forfeiture. The court in its discretion may grant or deny the bill in
whole or in part.
   (b) For the purposes of this article, interest accrues on the bond amount from
the date of:
      (1) forfeiture to the date of final judgment in the same manner and at the same
rate as provided for the accrual of prejudgment interest in civil cases; and
     (2) final judgment to the date of the order for remittitur at the same rate as
provided for the accrual of postjudgment interest in civil cases.

HISTORY: Enacted by Acts 1987, 70th Leg., ch. 1047 (S.B. 185), § 4, effective
June 20, 1987.
                    LexisNexis (R) Texas Annotated Statutes
             Copyright © 2014 by Matthew Bender & Company, Inc.
                       a member of the LexisNexis Group
                              All rights reserved.

      *** This document is current through the 2013 3rd Called Session ***

                    CODE OF CRIMINAL PROCEDURE
           TITLE 1. CODE OF CRIMINAL PROCEDURE OF 1965
                     APPEAL AND WRIT OF ERROR
              CHAPTER 44. APPEAL AND WRIT OF ERROR

Art. 44.42. Appeal on Forfeitures

  An appeal may be taken by the defendant from every final judgment rendered
upon a personal bond, bail bond or bond taken for the prevention or suppression of
offenses, where such judgment is for twenty dollars or more, exclusive of costs,
but not otherwise.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966.
Art. 44.44. Rules in Forfeitures

  In the cases provided for in the two preceding Articles, the proceeding shall be
regulated by the same rules that govern civil actions where an appeal is taken or a
writ of error sued out.

HISTORY: Enacted by Acts 1965, 59th Leg., ch. 722 (S.B. 107), § 1, effective
January 1, 1966.
                                   Texas Rules
             Copyright (c) 2015 by Matthew Bender & Company, Inc.
                       a member of the LexisNexis Group.
                               All rights reserved.

             *** This document is current through April 8, 2015 ***

                          STATE RULES
                TEXAS RULES OF CIVIL PROCEDURE
   PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS
                    SECTION 8. Pre-Trial Procedure

                           Tex. R. Civ. P. 166a (2015)

Rule 166a Summary Judgment

  (a) For Claimant. --A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory judgment may, at any time after the adverse
party has appeared or answered, move with or without supporting affidavits for a
summary judgment in his favor upon all or any part thereof. A summary judgment,
interlocutory in character, may be rendered on the issue of liability alone although
there is a genuine issue as to amount of damages.
   (b) For Defending Party. --A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory judgment is sought may, at any time, move
with or without supporting affidavits for a summary judgment in his favor as to all
or any part thereof.
    (c) Motion and Proceedings Thereon. --The motion for summary judgment
shall state the specific grounds therefor. Except on leave of court, with notice to
opposing counsel, the motion and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for hearing. Except on
leave of court, the adverse party, not later than seven days prior to the day of
hearing may file and serve opposing affidavits or other written response. No oral
testimony shall be received at the hearing. The judgment sought shall be rendered
forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the
pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the hearing, or filed thereafter
and before judgment with permission of the court, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion or in an answer or any other response. Issues not expressly
presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal. A summary judgment may be based
on uncontroverted testimonial evidence of an interested witness, or of an expert
witness as to subject matter concerning which the trier of fact must be guided
solely by the opinion testimony of experts, if the evidence is clear, positive and
direct, otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted.
    (d) Appendices, References and Other Use of Discovery Not Otherwise on
File. --Discovery products not on file with the clerk may be used as summary
judgment evidence if copies of the material, appendices containing the evidence, or
a notice containing specific references to the discovery or specific references to
other instruments, are filed and served on all parties together with a statement of
intent to use the specified discovery as summary judgment proofs: (i) at least
twenty-one days before the hearing if such proofs are to be used to support the
summary judgment; or (ii) at least seven days before the hearing if such proofs are
to be used to oppose the summary judgment.
   (e) Case Not Fully Adjudicated on Motion. --If summary judgment is not
rendered upon the whole case or for all the relief asked and a trial is necessary, the
judge may at the hearing examine the pleadings and the evidence on file,
interrogate counsel, ascertain what material fact issues exist and make an order
specifying the facts that are established as a matter of law, and directing such
further proceedings in the action as are just.
    (f)    Form of Affidavits; Further Testimony. --Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed by
depositions or by further affidavits. Defects in the form of affidavits or attachments
will not be grounds for reversal unless specifically pointed out by objection by an
opposing party with opportunity, but refusal, to amend.
   (g) When Affidavits Are Unavailable. --Should it appear from the affidavits of
a party opposing the motion that he cannot for reasons stated present by affidavit
facts essential to justify his opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is
just.
   (h) Affidavits Made in Bad Faith. --Should it appear to the satisfaction of the
court at any time that any of the affidavits presented pursuant to this rule are
presented in bad faith or solely for the purpose of delay, the court shall forthwith
order the party employing them to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur,
including reasonable attorney's fees, and any offending party or attorney may be
adjudged guilty of contempt.
    (i) No-Evidence Motion. --After adequate time for discovery, a party without
presenting summary judgment evidence may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial. The
motion must state the elements as to which there is no evidence. The court must
grant the motion unless the respondent produces summary judgment evidence
raising a genuine issue of material fact.
