                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-146-CV


PHIL GUILES                                                          APPELLANT

                                            V.

THE STATE OF TEXAS                                                    APPELLEE

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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      Appellant Phil Guiles appeals the summary judgment granted in favor of

Appellee The State of Texas in the underlying bond forfeiture case. In two issues,

Guiles argues that the trial court abused its discretion by denying his motion for

continuance and erred by granting summary judgment for the State. W e will affirm.

                            II. P ROCEDURAL B ACKGROUND



      1
           See Tex. R. App. P. 47.4.
      In February 2008, Guiles became the surety on a $25,000 appearance bond

for principal Alfredo Alvarez, who had been indicted for aggravated assault of a

family member. The following month, Guiles filed an affidavit to surrender principal

because Alvarez refused to report to the office as requested, violated conditions of

the bond, and was unable to be located.

      At a hearing in April, Alvarez failed to appear, and the trial court thereafter

signed a judgment nisi for the full amount of the bond. Citation was properly served

on Guiles, notifying him that the bond had been forfeited. Guiles filed an answer and

an amended answer, ultimately asserting the affirmative defense of estoppel; Guiles

claimed that Alvarez had fled to Mexico and that Guiles was prevented from

returning Alvarez to Tarrant County because the State would not issue the requisite

“extradition warrant.”

      In due course, the State sought a summary judgment, arguing that it had

conclusively established the elements necessary for a bond forfeiture proceeding

and that Guiles had not raised a statutory defense to the bond forfeiture proceeding.

As part of the State’s summary judgment evidence, it attached certified copies of

Alvarez’s appearance bond and the judgment nisi.

      In response to the State’s motion for summary judgment, Guiles sought a

continuance and subsequently filed a response to the State’s motion for summary

judgment. The trial court thereafter denied Guiles’s motion for continuance and

granted summary judgment for the State. This appeal followed.


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                III. N O ABUSE OF D ISCRETION O CCURRED B Y D ENYING
                          G UILES’S M OTION F OR C ONTINUANCE

      In his first issue, Guiles argues that the trial court abused its discretion by

denying his motion for continuance because the case had been pending for less

than twelve months and because discovery was allegedly not complete. Guiles’s

motion for continuance alleges that he had propounded discovery upon the State but

does not indicate on what date such discovery was served; Guiles sought a

continuance of at least 120 days to obtain the State’s discovery answers and to

depose a representative of the district attorney’s office. Guiles’s attorney’s affidavit,

attached to the motion for continuance, alleges that he intended to depose a

representative of the district attorney’s office relating to Guiles’s pleaded defense of

collateral estoppel.

      W e review a trial court’s ruling on a motion for continuance for an abuse of

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W .3d 789, 800 (Tex.

2002). W e do not substitute our judgment for that of the trial court. In re Nitla S.A.

de C.V., 92 S.W .3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we must

determine whether the trial court’s action was so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law. Joe v. Two Thirty Nine Joint Venture,

145 S.W .3d 150, 161 (Tex. 2004). The test is whether the trial court acted without

reference to guiding rules or principles. Cire v. Cummings, 134 S.W .3d 835, 838–39

(Tex. 2004). Generally, a trial court does not abuse its discretion by denying a



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motion for continuance if a party has received the twenty-one days’ notice required

by rule 166a(c). Carter v. MacFadyen, 93 S.W .3d 307, 310 (Tex. App.—Houston

[14th Dist.] 2002, pet. denied).

      The only causes that will exonerate a surety from his liability upon the

forfeiture taken on a bond are set forth in article 22.13 of the code of criminal

procedure. See Tex. Code Crim. Proc. Ann. art. 22.13 (Vernon 2009); Spradlin v.

State, 100 S.W .3d 372, 379 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Equitable defenses and general civil affirmative defenses do not apply to excuse a

surety from his liability in a bond forfeiture proceeding. See Kubosh v. State, 177

S.W .3d 156, 160–61 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding only

that defenses listed in rule 94 of the rules of civil procedure do not apply to bond

forfeiture proceeding); Gonzales Bail Bonds v. State, 147 S.W .3d 557, 559 (Tex.

App.—W aco 2004, no pet.) (stating that principles of civil substantive law, like

estoppel, do not apply in a bond forfeiture proceeding).

      Guiles has failed to show that the discovery and deposition he seeks are

relevant to the four causes set forth in article 22.13 that will exonerate a surety from

his liability upon the forfeiture taken on a bond. See Tex. Code Crim. Proc. Ann. art.

22.13; Bonds v. State, 911 S.W .2d 820, 822 (Tex. App.—El Paso 1995, writ ref’d,

untimely filed) (holding that appellant was not exonerated from liability because he

did not argue any of the four causes provided in article 22.13, which are the only

grounds for exonerating a defendant and his sureties upon forfeiture of a bond).


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Discovery concerning collateral estoppel or other civil common law or rule 94

affirmative defenses is not relevant in a bond forfeiture proceeding. Accordingly,

because the discovery sought by Guiles did not relate to any of the four bases for

exoneration of a surety for liability upon a forfeited bond, the trial court did not abuse

its discretion by denying Guiles’s motion for continuance. See Soileau v. State, No.

14-02-01303-CR, 2004 W L 78176, at *7–8 (Tex. App.—Houston [14th Dist.] Jan. 20,

2004, no pet.) (mem. op.) (holding that trial court did not abuse its discretion by

denying appellant’s motion for continuance, even though case had been on file for

only forty-eight days, when appellant failed to show how discovery was relevant).

W e therefore overrule Guiles’s first issue.

                    IV. S UMMARY J UDGMENT P ROPER F OR S TATE

      In his second issue, Guiles argues, as he did in his response to the State’s

motion for summary judgment, that the trial court erred by granting summary

judgment for the State because fact issues existed as to whether Alvarez’s name

was called at the courthouse door on the day that he was required to appear before

his bond was forfeited. 2 Guiles’s affidavit, attached as summary judgment evidence

      2
         Guiles’s response to the State’s motion for summary judgment also
asserted that he had filed an affidavit of his intent to surrender Alvarez and that
because the trial court did not issue an extradition warrant, he established an
affirmative defense to liability on the bond pursuant to Texas Code of Criminal
Procedure article 17.19(b). See Tex. Code Crim. Proc. Ann. art. 17.19(b) (Vernon
Supp. 2009). In its summary judgment reply, the State pointed out that article
17.19(b) provides only for issuance of a capias or warrant for arrest to be issued, not
for the issuance of an “extradition warrant,” and also pointed out that a capias had
been issued in this case. See McConathy v. State, 545 S.W .2d 166, 169 n.4 (Tex.

                                            5
to his response, stated that “[t]o my knowledge, the Bailiff did not call A[l]fredo

Alvarez[’s] name at the Courthouse Door as required . . . .”

      The State filed a reply, pointing out that Guiles’s affidavit does not specify that

he was present inside or outside the courtroom on April 25, 2008, and that therefore

the affidavit fails to establish Guiles’s personal knowledge of whether or not

Alvarez’s name was called. The State attached affidavits from the two bailiffs that

were assigned to the trial court on April 25, 2008, and both attested that Alvarez’s

name was called three times outside the courtroom door.

      The Texas Code of Criminal Procedure sets forth the procedures for bond

forfeiture proceedings:

      Bail bonds and personal bonds are forfeited in the following manner:
      The name of the defendant shall be called distinctly at the courthouse
      door, and if the defendant does not appear within a reasonable time
      after such call is made, judgment shall be entered that the State of
      Texas recover of the defendant the amount of money in which he is
      bound, and of his sureties, if any, the amount of money in which they
      are respectively bound, which judgment shall state that the same will
      be made final, unless good cause be shown why the defendant did not
      appear.

Tex. Code Crim. Proc. Ann. art. 22.02 (Vernon 2009). Thus, to be entitled to

forfeiture of a bond, the State need only show (1) a valid bond, (2) the defendant’s

name was distinctly called at the courthouse door, and (3) the defendant failed to



Crim. App. 1977) (recognizing surety’s affidavit to surrender principal and issuance
of arrest warrant does not discharge surety from liability under bond until principal
is taken into custody). Guiles does not raise on appeal this challenge to the trial
court’s summary judgment for the State.

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appear within a reasonable time of that call. Noble Ins. Co. v. State, Nos. 14-98-

01036-CR, 14-98-01037-CR, 14-98-01038-CR, 2000 W L 977358, at *1 (Tex.

App.—Houston [14th Dist.] May 18, 2000, no pet.) (not designated for publication).

The burden of proof on the second and third prongs is satisfied by the judgment nisi.

Id. W hen a forfeiture has been declared on a bond, the case is then docketed on

the civil docket with the State of Texas as the plaintiff, and the defendant and any

sureties as defendants, and the case is governed by the same rules governing other

civil suits. Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon 2009).

      W hen the State moves for summary judgment, it has the burden of

establishing as a matter of law that there are no genuine issues of material fact as

to any of the essential elements of the State’s cause of action and that it is entitled

to judgment as a matter of law. Alvarez v. State, 861 S.W .2d 878, 880–81 (Tex.

Crim. App. 1992) (citing Deckard v. State, 615 S.W .2d 717, 718 (Tex. Crim. App.

1981)). The essential elements of the State’s cause of action in a bond forfeiture

proceeding are the bond and the judicial declaration of the forfeiture of the bond,

which is the judgment nisi. Id.

      Here, the State’s summary judgment evidence included a certified copy of the

bond and the judgment nisi in Alvarez’s criminal proceeding. Guiles contends that

his affidavit claiming that “[t]o [his] knowledge, the Bailiff did not call A[l]fredo

Alvarez[’s] name at the Courthouse Door as required” raises a genuine issue of

material fact as to whether the State satisfied the statutory requisites to obtain the


                                          7
judgment nisi—that is whether the State conclusively established that Alvarez’s

name was called at the courthouse door. This allegation, however, is insufficient to

raise a fact issue because it states only a conclusion, does not provide specific facts

that form the basis of the conclusion, and fails to state how Guiles purportedly knew

that the Alvarez’s name was not called. See Lopez v. State, 678 S.W .2d 197, 200

(Tex. App.—San Antonio 1984, no pet.); see also In re Butler, 270 S.W .3d 757, 759

(Tex. App.—Dallas 2008, orig. proceeding) (holding that relators’ affidavit did not

meet the requirements of rule 52.3(k) because affiant stated—like the affidavit

here—“to my knowledge,” which is an equivocal statement implying less than

personal knowledge); see generally Bennett v. State, 394 S.W 2d 804, 807 (Tex.

Crim. App. 1965) (holding that calling defendant’s name from hallway outside the

courtroom where the proceedings are to take place—as occurred here according to

recitations in the judgment nisi—constituted substantial compliance with article

22.02); Aspilla v. State, 952 S.W .2d 610, 613 (Tex. App.—Houston [14th Dist.] 1997,

no pet.) (same).

      Having reviewed the summary judgment evidence presented in the light most

favorable to Guiles, the State conclusively established every necessary element of

the bond forfeiture proceeding, and Giles failed to raise a genuine issue of material

fact as to any of the requisite elements or to raise a statutory defense. See Lopez,

678 S.W .2d at 200 (upholding summary judgments for the State because appellants

did not conclusively establish that principal’s name was not called); Quintero v.


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State, No. 14-96-00587-CR, 1998 W L 104960, at *3 (Tex. App.—Houston [14th

Dist.] Mar. 12, 1998, pet. dism’d w.o.j.) (not designated for publication) (same).

Accordingly, we overrule Guiles’s second issue.

                                 V. C ONCLUSION

      Having overruled Guiles’s two issues, we affirm the trial court’s judgment.



                                                   SUE W ALKER
                                                   JUSTICE

PANEL: GARDNER, W ALKER, and MCCOY, JJ.

DELIVERED: March 11, 2010




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