
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

SAFETY NATIONAL CASUALTY                  )
CORPORATION (AGENT MANUEL LEYVA)               No.  08-05-00209-CV
d/b/a ROCKY BAIL BONDS),                           )
)   Appeal from the
                                    Appellant,                        )
)            171st District Court
v.                                                                          )
)       of El Paso County, Texas
THE STATE OF TEXAS,                                   )
)            (TC# 2004BF107)
                                    Appellee.                          )


O P I N I O N

            Safety National Casualty Corporation (Agent Manuel Leyva d/b/a Rocky Bail Bonds)
(“Safety National”) appeals from a final judgment on a bond forfeiture.  The trial court remitted
50 percent of the $10,000 bond and awarded judgment to the State of Texas for $5,000 plus court
costs.  We affirm.
            On February 18, 2004, Safety National posted a $10,000 surety bond on behalf of Willie
Guerrero (“Guerrero”) who was charged with felony theft.


  Guerrero did not appear for
arraignment/pretrial hearing set for 1:30 p.m. on March 25, 2004.  Mayra Botello, who works for
Rocky Bail Bonds, learned at about 2:30 p.m. that same day that Guerrero had not appeared at
the scheduled hearing so she called him at his home.  After some discussion with Guerrero and
his mother, Guerrero said that he could go to court that afternoon.  Botello called the court
coordinator for the 171st District Court and advised her of Guerrero’s availability to appear that
afternoon, but the coordinator told her to bring Guerrero to court the following morning.  The
trial court usually followed a procedure whereby the bond would not be forfeited if the
defendant-principal would appear by 8:30 a.m. the following day and provide the court with an
adequate reason for his non-appearance the previous day.  Guerrero appeared before the trial
court the following morning but he did not provide the court with good cause for his failure to
appear at the hearing on the previous day.  The trial court judge recalled that Guerrero initially
lied to her and blamed the weather and car troubles before stating that he had simply forgotten.  
The judge was offended by Guerrero’s nonchalant attitude regarding his failure to appear. 
Consequently, the court forfeited the bond and Guerrero was taken immediately into custody.
            The trial court entered the judgment nisi on March 26, 2004.  Safety National filed its
written answer on April 16, 2004.  Safety National raised only a general denial and did not raise
the affirmative defense of exoneration.  The trial court conducted the final hearing on
September 28, 2004.  Guerrero did not appear at the final hearing on the judgment nisi and the
trial court awarded a default judgment in the full amount of the bond against him.  Safety
National argued at the final hearing that it was entitled to exoneration under Article 22.13(a)(5)
of the Code of Criminal Procedure


 because Guerrero was taken into custody on March 26, 2004. 
The State argued that Article 22.13(a)(5) violated the separation of powers provision of the Texas
Constitution because it unduly interfered with the entry and timing of the final judgment and with
the court’s ability to control its docket.  The trial court did not immediately enter a final
judgment but instead requested additional briefing by the parties on the constitutional issues.  In
its brief, Safety National requested remittitur pursuant to Article 22.16(a) of the Code of
Criminal Procedure.



            On January 24, 2005, the trial court conducted an additional hearing on the constitutional
issues, and on March 7, 2005, the court entered judgment in favor of the State for $5,000 (one-half of the original bond) plus court costs.  In its findings of fact and conclusions of law, the
court found that good cause had not been shown for Guerrero’s failure to appear.  Additionally,
the court concluded that Article 22.13(a)(5) is unconstitutional because it unduly interferes with
the court’s discretion to set and forfeit bonds, and to control its docket.  The court also found that
Article 22.13(a)(5) unconstitutionally interferes with not only the timing and finality of
judgments, but also with the court’s discretion to remit all or none of a forfeited amount.
EXONERATION
            Safety National raises four issues related to the affirmative defense of exoneration.


  In
Issues One, Two, and Three, Safety National contends that it is entitled to exoneration pursuant
to Article 22.13(a)(5) of the Code of Criminal Procedure.  These issues do not discuss the
constitutionality of Article 22.13(a)(5) but instead are directed at the court’s failure to exonerate
the surety based on the undisputed evidence.  We interpret these issues as a challenge to the legal
sufficiency of the evidence to support the trial court’s non-finding of incarceration as an
affirmative defense to liability upon the bond forfeiture taken.  The trial court, however, found
that Article 22.13(a)(5) is unconstitutional as violative of the separation of powers doctrine and
refused to apply it to the case.  The sufficiency issues are therefore irrelevant unless Safety
National brings forward and properly briefs an issue on appeal challenging the trial court’s
determination that Article 22.13(a)(5) is unconstitutional.  The only issue which might be
construed as an attempt to meet this burden is Issue Five where Safety National asserts that
several of the trial court’s legal conclusions are erroneous.  The State responds, in part, that Issue
Five is inadequately briefed.
            The Rules of Appellate Procedure require that the brief contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the record. 
Tex.R.App.P. 38.1(h); see Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d
666, 671 (Tex.App.--Houston [14th Dist.] 1994, writ denied)(when stated issues are not
supported by citation to appropriate authorities or to the record, but contain mere conclusory
arguments, those issues are waived).  The appellant bears the burden of discussing his assertion
of error.  Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 900 (Tex.App.--Dallas 2000, pet. denied); see also Thomas v. Olympus/Nelson Prop. Mgmt., 148 S.W.3d 395,
401 (Tex.App.--Houston [14th Dist.] 2004, no pet.).  We do not have a duty to perform an
independent review of the record and applicable law to determine whether the error complained
of occurred.  Shelton v. Sargent, 144 S.W.3d 113, 129 (Tex.App.--Fort Worth 2004, pet. denied);
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.--Dallas 2004, pet. denied).
            The first question is whether Issue Five can be construed as addressing the
constitutionality of Article 22.13(a)(5).  Safety National’s argument consists of approximately
one-half of a page, stating:
The legal conclusions of the trial court identified as D17-19, E20-25 and
27-30, and numbers 6, 8, 10, and 12 are erroneous (record citation omitted).  The
trial court concluded that Article 22.13(a)(5), TEX. CODE CRIM. PROC., usurp
(sic) it’s (sic) power.  These conclusions are erroneous as the subject statute is
consistent with the purpose of bail, to secure the presence of the accused for trial,
and it does not prevent the court from proceeding to trial whenever it chooses. 
Trammell v. State, 529 S.W.2d 528, 529 (Tex.Crim.App. 1975); McConathy v.
State, 528 S.W.2d 594, 596 (Tex.Cr.App. 1975) and reasoning and authorities
cited in Amicus Brief filed in the trial court on October 22, 2004 (Appendix G).
Appellant would show that the subject conclusions of law be disregarded
as improper as the conclusions are not on controlling issues.  Rafferty v. Finstad,
903 S.W.2d 374, 376 (Tex.App.--Houston [1st Dist.] 1995, writ denied).  For the
above reasons, and as the review of conclusions of law is de novo, Appellant
requests that these erroneous conclusions of law be reversed.  Austin Hardwoods,
Inc. v. Vanden Berghe, 917 S.W.2d 320, 322 (Tex.App.--El Paso 1995, writ
denied); Hydrocarbon Mgmt. v. Tracker Expl., 861 S.W.2d 427, 431 (Tex.App.--Amarillo 1993, no writ).

            We recognize that Safety National identifies the particular legal conclusions it wishes to
challenge and it provides a standard for reviewing those conclusions.  The brief does not,
however, address the trial court’s determination that Article 22.13(a)(5) is unconstitutional
because it violates the separation of powers provision.  Instead, the brief contends that the trial
court’s legal conclusions should be disregarded because they are not on controlling issues.  The
constitutionality of the statute is certainly a controlling issue in this case.  Another indication that
Safety National did not intend to address the issue of Article 22.13(a)(5)’s constitutionality is
seen by the absence of citation or discussion of any of the case law relevant to this significant
constitutional issue.
            Even if we could construe Safety National’s brief as raising the issue of Article
22.13(a)(5)’s constitutionality, the brief contains neither argument or authority on the issue. 
Safety National’s reference to an amicus brief filed in the trial court, without any discussion of
the authorities or argument made in that brief, does not constitute adequate briefing of the issue
on appeal.  We conclude that Safety National has waived any issue regarding the trial court’s
determination that Article 22.13(a)(5) is unconstitutional.  See Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)(citing long-standing rule that a point may be
waived due to inadequate briefing).  Accordingly, Issues One through Three and Issue Five are
overruled.



REMITTITUR
            In Issue Four, Safety National asserts that it is entitled to mandatory remittitur of the
entire bond under Article 22.16(a) because Guerrero was released on a new bail in the criminal
case.  The State responds that Safety National waived the remittitur issue because it did not file a
written motion as required by Article 22.16(a), it did not bring the motion to the court’s attention,
and it did not request any additional or amended findings on the issue.
Preservation of Error
            Article 22.16(a) provides:
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 the bond was given is dismissed.

Tex.Code Crim.Proc.Ann. art. 22.16(a).
            Safety National did not file a separate written motion but included its request for
remittitur in a trial brief filed after the final hearing but before judgment.  The request is found at
the conclusion of the brief under the heading, “ALTERNATIVE RELIEF UNDER 22.16(a)
REQUESTED.”  While the better practice is to request remittitur in a separate motion, we
conclude that Safety National’s request for remittitur constitutes a written motion as required by
the statute.
            We next consider whether Safety National brought the remittitur motion to the attention
of the trial court.  At the hearing on the constitutionality of Article 22.13(a)(5), Safety National’s
attorney argued that good cause had been shown for Guerrero’s failure to appear, and
alternatively, that it was exonerated from liability under Article 22.13(a)(5).  Counsel also argued
the following:
And in reviewing the remittitur statute, 22.16, at that particular time, it
says that any time before the judge enters final judgment, the Court can order a
remittitur.
Your Honor, I put that in the brief as a third alternative for the Court in
complete compliance with the Code of Criminal Procedure.  So that’s where
we’re at here today, Your Honor.

While Safety National focused primarily on Article 22.13(a)(5) at the hearing, it sufficiently
brought its remittitur motion to the trial court’s attention.  See Tex.R.App.P. 33.1(a)(1)(requiring
appellant to show that the complaint was made to the trial court by timely request, objection, or
motion).  We also conclude that the trial court implicitly denied Safety National’s motion for full
remittitur by entering only a partial remittitur.  See Tex.R.App.P. 33.1(a)(2)(A)(requiring
appellant to show that the trial court ruled on the request, objection, or motion either expressly or
implicitly).
            Finally, we consider whether Safety National has waived this issue by failing to obtain
findings.  The trial court entered a judgment remitting half of the bond rather than the full
amount as had been requested by Safety National pursuant to Article 22.16(a).  At Safety
National’s request, the trial court made extensive findings of fact and conclusions of law.  The
court specifically found that Guerrero posted bond after being arrested on the warrant resulting
from the judgment nisi. Thus, Safety National obtained the factual finding  relevant to this issue. 
The trial court, however, concluded courts have inherent discretion in bond forfeiture cases to
remit any or no part of a bond and that a provision requiring a 100 percent remittitur is
unreasonable.  We conclude that Safety National did not waive this issue.
Separation of Powers
            The State next argues that the trial court properly refused to apply Article 22.16(a)
because the non-discretionary and legislatively-mandated judgment interferes with the trial
court’s exercise of its judicial powers in violation of the separation of powers provision of the
Texas Constitution.  Article 2, § 1 of the Texas Constitution provides:
The powers of the Government of the State of Texas shall be divided into
three distinct departments, each of which shall be confided to a separate body of
magistracy, to wit:  Those which are Legislative to one, those which are Executive
to another, and those which are Judicial to another;  and no person, or collection
of persons, being of one of these departments, shall exercise any power properly
attached to either of the others, except in the instances herein expressly permitted.

Tex.Const. art. 2, § 1.
            The separation of powers provision may be violated in either of two ways:  (1) when one
branch of government assumes, or is delegated, to whatever degree, a power that is more
“properly attached” to another branch; and (2) when one branch unduly interferes with another
branch so that the other branch cannot effectively exercise its constitutionally assigned powers.  
Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App. 1990); Rose v. State, 752
S.W.2d 529, 535 (Tex.Crim.App. 1987); Meshell v. State, 739 S.W.2d 246, 252 (Tex.Crim.App.
1987).  The Texas Constitution explicitly vests the judicial power of the state in the courts. 
Tex.Const. art. 5, § 1; Armadillo Bail Bonds, 802 S.W.2d at 239.  The core of this judicial
power embraces the power:  (1) to hear evidence; (2) to decide the issues of fact raised by the
pleadings; (3) to decide the relevant questions of law; (4) to enter a final judgment on the facts
and the law; and (5) to execute the final judgment or sentence.  Armadillo Bail Bonds, 802
S.W.2d at 239-40.  On the other hand, the Constitution explicitly grants the Legislature ultimate
authority over judicial “administration.”  Tex.Const. art. 5, § 31; Armadillo Bail Bonds, 802
S.W.2d at 240; Meshell, 739 S.W.2d at 255.  This authority does not, however, permit the
Legislature “to infringe upon the substantive power of the Judicial department under the guise of
establishing ‘rules of court,’ thus rendering the separation of powers doctrine meaningless.” 
Armadillo Bail Bonds, 802 S.W.2d at 240, quoting Meshell v. State, 739 S.W.2d at 255.  It is not
a simple task to determine whether any given legislative action that affects the exercise of
judicial power is a violation of the separation of powers provision.  Armadillo Bail Bonds, 802
S.W.2d at 240.
            In Armadillo Bail Bonds, the Court of Criminal Appeals held that Article 22.16(c)(2)
violated the separation of powers provision.  This statute prohibited entry of a final judgment
against a bond prior to the expiration of eighteen months from the date of the forfeiture in a
felony case.  See Armadillo Bail Bonds, 802 S.W.2d at 238-39.  The Court concluded that the
statute unduly interfered with a core function of the judiciary, that is, to enter a final judgment on
the facts and the law.  Id. at 239-41.  Thus, the statute was found to be a violation of the
separation of powers provision since it allowed the legislature to usurp a judicial function. 
Armadillo Bail Bonds, 802 S.W.2d at 241.
            In State v. Matyastik, 811 S.W.2d 102, 104 (Tex.Crim.App. 1991), the Court applied
Armadillo Bail Bonds to Article 22.16(c)(1), the section pertinent to misdemeanors, and declared
it unconstitutional as well.  The Court also addressed the constitutionality of Article 22.16(a),
which at that time required the trial court to remit the entire amount of the bond if certain
circumstances existed


 after forfeiture and before the expiration of the periods in Article
22.16(c).  Because Article 22.16(a) could not be executed without utilizing the provisions of
Article 22.16(c), the Court concluded that the portion of the statute which utilized subsection (c)
was invalid because it violated the separation of powers provision.  See Matyastik, 811 S.W.2d at
104.  Thus, remittitur could be done anytime between forfeiture and entry of a final judgment. 
Id.
            Two years later, the Court of Criminal Appeals considered whether Article 22.16(a)
should be read without reference to Article 22.16(c), or alternatively, whether the entire
subsection is invalid.  See Lyles v. State, 850 S.W.2d 497, 500 (Tex.Crim.App. 1993).  The Court
reiterated its holding in Matyastik that subsection (a) is contingent upon the invalid time
limitations in subsection (c) and it could not have any effect absent the invalid provisions.  Lyles,
850 S.W.2d at 500.  Thus it declared subsection (a) void.  Id.  In its analysis, the Court noted that
reading Article 22.16(a) as providing for mandatory remittitur at anytime prior to the entry of
final judgment would violate the separation of powers provision because it would constitute a
legislative removal of the trial court’s discretion to remit the bond.  Lyles, 850 S.W.2d. at 501.
            The current version of Article 22.16(a) does exactly that.  It provides for mandatory
remittitur at anytime prior to final judgment if the defendant principal is released on new bail in
the case or the case for which bond is given is dismissed.  While the trial court retains discretion
under Article 22.16(b) to remit the bond for other good cause shown before the entry of final
judgment, the legislature has nevertheless removed the trial court’s discretion to remit the bond
in the event new bail is given or the criminal case is dismissed.  We conclude that Article
22.16(a) is invalid because it violates Article 2, § 1 of the Texas Constitution.  The trial court did
not err by failing to apply Article 22.16(a) in this case.
Discretionary Remittitur
            Finally, we consider whether the trial court abused its discretion by not remitting the
entire amount of the bond pursuant to Article 22.16(b).  In determining whether there has been an
abuse of discretion, it must be determined if the court acted without reference to any guiding
rules and principles, or in other words, whether the court acted arbitrarily or unreasonably.  Lyles,
850 S.W.2d at 502.  
            The trial court was authorized by Article 22.16(b) to remit to the surety all or part of the
amount of the bond after deducting the costs of court, any reasonable and necessary costs to the
county for the return of the principal, and the interest accrued on the bond.  An abuse of
discretion may exist when there is a showing of sufficient cause for the accused’s failure to
appear.  Lyles, 850 S.W.2d at 502.  However, the mere subsequent appearance by the accused is
not sufficient cause for complete remission of the forfeiture.  Id.  If it were, the defendant would
not really be bound to appear as required by the terms of his recognizance, but would be able to
create continuances at will.  Makeig v. State, 802 S.W.2d 59, 62 (Tex.App.--Amarillo 1990),
affirmed by 830 S.W.2d 956 (Tex.Crim.App. 1992).  Generally, sufficient cause is a showing that
the party did not break his recognizance intentionally with the design of evading justice, or
without a sufficient cause or reasonable excuse, such as an unavoidable accident or inevitable
necessity preventing his appearance.  Id. at 62-3.  Although resulting extreme hardship on the
surety may be considered, a balancing consideration may be whether compensation was received
by the surety for taking the risk.  Id. at 63.  While not seeking to punish the surety for the
principal’s failure to appear, the law does contemplate that such noncompliance will result in
forfeiture of the bond amount.  Id.
            The record supports the trial court’s conclusion that there was no showing of sufficient
cause or a reasonable excuse for Guerrero’s failure to appear.  Further, there is no evidence that
the surety incurred any costs in attempting to locate Guerrero.  To the contrary, the bondsman
simply telephoned Guerrero and instructed him to appear the following morning in the trial court. 
While there is no evidence of the amount of the bonding fee assessed by the surety against the
principal, there is also no evidence that it was done free of charge.  Under this record, we are
unable to conclude that the trial court abused its discretion by remitting only half of the forfeited
bond.  See Lyles, 850 S.W.2d at 502-03; Makeig, 802 S.W.2d at 62-3.  Issue Four is overruled. 
Having overruled each issue presented on appeal, we affirm the judgment of trial court.

November 30, 2006
DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.)(Sitting by Assignment)
