Benson, Tom

• Court: Court of Appeals of Texas
• Decided: September 30, 2015
• Docket: PD-1275-15
• Status: Published

Opinion

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

IN THE TEXAS COURT OF CRIMINAL APPEALS ________________________________________________

THE STATE OF TEXAS, Petitioner

v.

TOM BENSON, Respondent ________________________________________________

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

PETITION FOR DISCRETIONARY REVIEW ________________________________________________

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

Attorney for the State of Texas, Petitioner

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ii IDENTITY OF JUDGE, PARTIES, AND COUNSEL

TRIAL JUDGE:

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

PARTIES TO THE JUDGMENT:

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

TRIAL AND APPELLATE COUNSEL:

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

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

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

iii INDEX OF AUTHORITIES Page

CASES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STATUTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OTHER

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

vi NO.________________________

IN THE TEXAS COURT OF CRIMINAL APPEALS ________________________________________________

TOM BENSON, Respondent ________________________________________________

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

PETITION FOR DISCRETIONARY REVIEW ________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

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

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

judgment and remanded the case to the trial court.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would be helpful to resolve whether a principal-

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

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

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

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

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

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

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

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

justice system.

STATEMENT OF THE CASE

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

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

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

Whipple’s personal appearance on a misdemeanor charge pending in

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

court and the bail bond was forfeited.3

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

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

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

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

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

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

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

Mr. Whipple ever returned to Travis County.

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

Summary Judgment and rendered judgment against Brian Whipple and

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

STATEMENT OF PROCEDURAL HISTORY

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

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

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

QUESTION PRESENTED FOR REVIEW

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

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

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

Code of Criminal Procedure?

4 CR 14. 5 CR 24-25.

-3- REASONS FOR GRANTING REVIEW

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

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

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

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

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

Court.

ARGUMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

his or her return to the county of prosecution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

nonappearance normally will result in the total forfeiture of the bond

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

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

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

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

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

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

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

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

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

The exoneration based on the post-forfeiture incarceration of the

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

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

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

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

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

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

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

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

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

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

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

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

(Tex. Crim. App. 1990).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

this Court limited the incarceration exoneration to situations where the

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

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

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

because:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

even knew of the incarceration at the time it occurred.

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

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

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

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

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

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

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

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

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

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

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

Crim. App. 1991).

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

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

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

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

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

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

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

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

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

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

and 22.13(b) are ambiguous.

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

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

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

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

thereby defeating the purpose of the bail bond.

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

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

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

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

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

as to avoid liability for the return costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

county of prosecution.

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

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

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

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

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

from liability if the principal was prevented from appearing because he

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

principal had no fault in causing the situation that prevented his

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

Before the surety can take advantage of this exoneration, the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

incarceration exoneration is not dependent on good cause for the

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

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

return to the criminal justice system.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Procedure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was proper.

PRAYER FOR RELIEF

Accordingly, the State of Texas respectfully requests that this Court

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

affirm the judgment of the trial court.

Respectfully submitted,

DAVID A. ESCAMILLA TRAVIS COUNTY ATTORNEY

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

Attorneys for the State of Texas, Petitioner

-18- CERTIFICATE OF COMPLIANCE

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

CERTIFICATE OF SERVICE

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

/s/ Tim Labadie

-19- APPENDIX

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

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

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

NO. 03-15-00121-CR

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

2015 Tex. App. LEXIS 9238

August 31, 2015, Filed

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

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

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

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

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

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

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

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

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

NO. PD-0413-07

COURT OF CRIMINAL APPEALS OF TEXAS

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

May 14, 2008, Delivered

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

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

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

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

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

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

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

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

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

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

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