Benson, Tom

Opinion

PD-1275-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 12/28/2015 9:54:15 AM Accepted 12/28/2015 12:49:55 PM NO. PD-1275-15 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 December 28, 2015 Third District of Texas at Austin No. C-1-CV-14-002294 County Court at Law No. 7 Travis County, Texas

________________________________________________

PETITIONER’S MOTION FOR REHEARING

________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

The State of Texas files this Motion for Rehearing, respectfully

requesting that the Court reconsider its order refusing the State’s petition

for discretionary review because articles 22.13(a)(5) and 22.13(b) of the

Texas Code of Criminal Procedure constitute an unconstitutional reduction

in the liability of the surety and principal to the State for a bond forfeiture

in violation of Article III, § 55 of the Texas Constitution.

Petitioner’s Motion for Rehearing Page 1

Relying on articles 22.13(a)(5)(A) and 22.13(b)1 of the Texas Code of

Criminal Procedure, Tom Benson, the surety, asserts that his liability to the

State under Chapter 22 of the Code of Criminal Procedure for the forfeiture

of a bail bond he made with Brian Whipple, the principal, should be greatly

reduced because Mr. Whipple was allegedly incarcerated in Las Vegas

within 180 days after he failed to appear in Travis County. This statutory

reduction in liability, however, violates Article III, § 55 of the Texas

Constitution, which provides:

The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any corporation or individual, to this State or to any county or defined subdivision thereof, or other municipal corporation therein, except

1 These statutes 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:

(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).

Petitioner’s Motion for Rehearing Page 2 delinquent taxes which have been due for a period of at least ten years.

Tex. Const. Art. III, § 55.

The courts have construed this provision to prohibit the Legislature

from releasing or diminishing an obligation to the State unless there is

consideration for doing so.2 Over forty years ago, the Texas Supreme Court

was faced with the issue of whether another statutory reduction of a

surety’s liability for a bond forfeiture violated Article III, § 55. Robinson v.

Hill, 507 S.W.2d 521 (Tex. 1974) (a copy of this opinion is attached to this

motion). The statute at issue3 authorized a court to remit at least fifty

percent of the amount paid on a judgment of bond forfeiture where the

principal had, as a result of money spent or information furnished by the

surety, been rearrested and returned to the county within 120 days after

the date of final judgment on the bond forfeiture. The Court found that this

reduction in liability was supported by consideration (i.e., the principal

was arrested as a result of money spent or information furnished by the

2 See City of Beaumont v. Fertitta, 415 S.W.2d 902, 906 (Tex. 1967); State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737, 742 (1960) (“After the occurrence of events which under the law then existing give rise to an obligation on the part of an individual or corporation to the state, the Legislature has no power to release or diminish that obligation without consideration.”) 3 Tex. Rev. Civ. Stat. art. 2372p-3, § 12(a), which has since been repealed. Petitioner’s Motion for Rehearing Page 3 surety), and thus, did not violate Article III, § 55. Robinson v. Hill, 507

S.W.2d at 526.

Unlike the statute at issue in Robinson, article 22.13(a)(5) and article

22.13(b) do not require the surety to engage in any conduct that leads to the

arrest of the principal. The Legislature has not required the surety to even

look for the principal after the failure to appear, let alone provide any type

of assistance to law enforcement in returning the principal to the criminal

justice system. Indeed, the surety need not even know about the principal’s

arrest at the time it occurs to have his or her liability reduced. Absent any

requirement that the surety do anything that contributes to the principal’s

arrest, a reduction of the surety’s liability under article 22.13(a)(5) and

article 22.13(b) for a fortuitous arrest of the principal is not supported by

consideration. Thus, this statutory reduction in the liability of the principal

and surety to the State for a bail bond forfeiture is unconstitutional.

In significant contrast to article 22.13(a)(5) and article 22.13(b), the

discretionary remittitur provisions in articles 22.16(b) and 22.17(a) require

the surety’s participation in the principal’s arrest before the court can

reduce the surety’s liability. McKenna v. State, 247 S.W.3d 716, 719 (Tex.

Crim. App. 2008) Petitioner’s Motion for Rehearing Page 4

So that the Texas Constitution might be upheld and that the State

might be protected from an unconstitutional reduction in a liability owed

to it, the State of Texas respectfully requests that this Court grant this

motion for rehearing, grant its petition for discretionary review, reverse the

decision of the Third 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

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Tex. R. App. P. 79.2(c), the foregoing Motion for Rehearing is grounded on substantial intervening circumstances or on other significant circumstances that are specified in the motion and that the motion is made in good faith and not for delay.

/s/ Tim Labadie Tim Labadie

Petitioner’s Motion for Rehearing Page 5

CERTIFICATE OF SERVICE

I hereby certify that on December 28, 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 Tim Labadie

Petitioner’s Motion for Rehearing Page 6

Robinson v. Hill, 507 S.W.2d 521 (1974)

Burden of Proof



 It is to be presumed that  the legislature has not acted unreasonably or arbitrarily, and     ! "#!!$" the burden is on one who % challenges an act to establish its &$'(("#$)*$! unconstitutionality.

! "#!! 51 Cases that cite this headnote  +, , - ./& 0" 1, - &2$34$2 #2! " 1, [2] Statutes

Class action was brought against officials Subjects and titles of statutes of Harris County and of state to challenge Statutes constitutionality of statute providing for Acts Relating to One or More licensing and regulation of bail bondsmen. Subjects; Single-Subject Rule The District Court No. 55,Harris County, Both constitutional provision that no Compton, J., denied plaintiffs' application for a bill shall contain more than one temporary injunction, and plaintiffs appealed. subject which shall be expressed The Supreme Court, Walker, J., held that such in the title and questioned statute statute does not violate constitutional provision are to be liberally construed in that no bill shall contain more than one subject favor of constitutionality. Vernon's which shall be expressed in its title, that Ann.St.Const. art. 3, § 35. such statute is a general law, and is not an unconstitutional special and local law, and that 19 Cases that cite this headnote $500 fee that must accompany the original application for a license and $250 renewal fee [3] Statutes

are license fees imposed in exercise of police In general; construction of title power, and are not occupational taxes.

A statute will not be held Affirmed. unconstitutional, as failing to comply with requirement that no bill shall contain more than one subject which shall be expressed in its title, West Headnotes (10) where its provisions relate, directly, or indirectly, to the same general [1] Constitutional Law subject, have a mutual connection, Presumptions and Construction and are not foreign to the subject as to Constitutionality expressed in the title. Vernon's Constitutional Law Ann.St.Const. art. 3, § 35.

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Robinson v. Hill, 507 S.W.2d 521 (1974)

Primary and ultimate test of whether 12 Cases that cite this headnote a law is general or special is whether there is a reasonable basis for the [4] Statutes classification it makes and whether What Constitutes Sufficient or the law operates equally on all within Insufficient Title the class. Vernon's Ann.St.Const. art.

3, § 56.

Statutes Comprehensiveness 7 Cases that cite this headnote Constitutional provision that no bill shall contain more than one subject which shall be expressed in its title [7] Bail requires only that the title state the Sureties general subject; it need not explain Statutes the details. Vernon's Ann.St.Const. Trade or business art. 3, § 35. Statute providing for licensing and regulation of bail bondsmen, which 3 Cases that cite this headnote may not apply to counties having a population of less than 150,000, [5] Bail does not constitute an unreasonable Sureties classification by reason of alleged fact that counties just on either Statutes side of population line are similarly Trade or business

situated, or that there are excluded Statute providing for licensing and counties constituting part of same regulation of bail bondsmen does not metropolitan area as included violate constitutional requirement counties. Vernon's Ann.St.Const. art. that no bill shall contain more than 3, § 56; Vernon's Ann.Civ.St. art. one subject which shall be expressed 2372p–3, §§ 3, 3(c), 5, 13. in its title. Vernon's Ann.Civ.St. art. 2372p–3; V.A.T.S. Insurance Code, 5 Cases that cite this headnote art. 21.14; Vernon's Ann.St.Const. art. 3, § 35.

[8] Bail

3 Cases that cite this headnote Sureties Statutes

Trade or business

[6] Statutes General laws compared and Statute providing for licensing and distinguished regulation of bail bondsmen is a general law, and does not violate Constitution as a special and local

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Robinson v. Hill, 507 S.W.2d 521 (1974)

law, even if the statute does not does not violate constitutional apply to counties having a population provision prohibiting the legislature of less than 150,000. Vernon's from releasing or extinguishing Ann.St.Const. art. 3, § 56; Vernon's the liability or obligation of any Ann.Civ.St. art. 2372p–3, §§ 3, 3(c), corporation or individual to the 5, 13. state or to any county or municipal corporation. Vernon's Ann.Civ.St.

7 Cases that cite this headnote art. 2372p–3, § 12; Vernon's Ann.St.Const. art. 3, § 55.

[9] Bail 2 Cases that cite this headnote Sureties $500 original application fee and $250 renewal fee, provided for in statute relating to the licensing of Attorneys and Law Firms

bail bondsmen, are license fees imposed in exercise of police *523 Heath & Associates, Bob Heath, power and are not occupation taxes Houston, for appellants. in contravention of Constitution. Vernon's Ann.Civ.St. arts. 1738a, John L. Hill, Atty. Gen., Calvin Botley, Asst. 2372p–3; Vernon's Ann.St.Const. Atty. Gen., Austin, Carol S. Vance, Dist. Atty., art. 8, §§ 1, 2. Joe S. Moss, Asst. Dist. Atty., Houston, for appellees.

Cases that cite this headnote Opinion

[10] States WALKER, Justice.

Rights and remedies of state on contracts in general, and debts due This is a direct appeal as authorized by Article state 1738a, Vernon's Ann.Tex.Civ.St. Suit was filed Statute providing for licensing and by J. W. Robinson et al, appellants, as a regulation of bail bondsmen, insofar class action against several officials of Harris as it authorizes the court to remit County and of the State of Texas, appellees, to at least 50% of amount paid on a challenge the constitutionality of Article 2372p judgment of bond forfeiture where —3, V.A.T.S., which provides for the licensing the principal has, as the result and regulation of bail bondsmen. The suit of money spent or information was brought on behalf of lawyers, insurance furnished by the surety, been agents and others who had previously written rearrested and returned to the county bail bonds to obtain a judgment declaring the within 120 days after the date of final statute unconstitutional and enjoining appellees judgment on the bond forfeiture, from implementing, administering or enforcing

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Robinson v. Hill, 507 S.W.2d 521 (1974)

its provisons. Appellants' application for a of a $250.00 renewal fee. Upon notice from temporary injunction having been denied by the the board that an original application has been trial court, they perfected their appeal to this tentatively approved, the applicant is required Court. We affirm. to deposit $5,000.00 in cash or its equivalent with the county treasurer to be held as a special Article 2372p—3 declares that the business of bond security fund and also to execute in executing bail bonds is a business affecting trust to the sheriff a deed to non-exempt real the public interest. It further declares that the property of the value of at least $10,000.00. The policy of the State is to provide reasonable cash deposit and any money realized from the regulation to the end that the right of bail trust may be used to pay any judgments of bail be preserved and implemented by just and forfeiture for which the licensee is liable and practical procedures governing the giving or that are not satisfied within 30 days. making of bail bond and other security to guarantee appearance of the accused. A county *524 A corporation otherwise authorized to bail bond board is created in each county act as a surety must meet the same requirements having a population of $150,000 or more as an individual before being acceptable as a according to the last preceding federal census. ‘personal surety’ on a bail bond. Its certificate The board is authorized to promulgate rules and to do business issued by the State Board regulations relative to the making of bail bonds of Insurance is not conclusive as to the by bondsmen within the county. ‘Bondsman’ is sufficiency of the security or the solvency defined as any person who, for compensation of the corporation. Before acting as a surety, and as many as five times in any 12-month moreover, the company is required to file with period, deposits cash or securities or executes the county clerk of the county where the bond as surety any bond to assure appearance. is to be given a power of attorney designating Subject to certain exemptions, no person may an agent or agents to execute bail bonds, and act as a bondsman unless licensed by the board any agent so designated may execute bail bonds under the Act. The following are exempted for his company even though he is not licensed from the license requirements: (1) members of as a local recording agent in accordance with the State Bar who personally execute bonds Article 21.14 of the Texas Insurance Code. for persons they actually represent in criminal [1] In passing upon the constitutionality cases; (2) persons executing bonds in counties of a statute, we begin with a presumption having a population of less than 150,000 of validity. It is to be presumed that according to the last preceding federal census; the Legislature has not acted unreasonably and (3) persons who execute bonds as co- or arbitrarily, and the burden is on sureties with a licensed bondsman. one who challenges an act to establish its unconstitutionality. Smith v. Craddick, An application for an original license, which Tex.Sup., 471 S.W.2d 375; Smith v. Davis, expires 24 months after the date of its issuance, Tex.Sup., 426 S.W.2d 827, and authorities must be accompanied by a fee of $500.00. there cited. Appellants contend that Article The license may be renewed for a period of 2372p—3 violates several provisions of the 12 months upon application and the payment Texas Constitution. They say, in the first place,

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Robinson v. Hill, 507 S.W.2d 521 (1974)

that the caption does not comply with the certain recommendations or requirement of Art. III, Sec. 35, that no bill suggestions as to an attorney or shall contain more than one subject which shall particular bondsman; providing be expressed in its title. The statute now in penalties; and declaring an question was adopted by the 63rd Legislature emergency. in 1973. Acts 1973, 63rd Leg., p. 1520, ch. 550. The title of the Act reads as follows:

An Act relating to the licensing and regulation of persons Appellants insist that this title contains the or corporations who engage following four subjects: (1) county bail bond in the business of executing board; (2) special powers and duties of sheriffs; bail bonds and establishing a (3) corporations acting as sureties; and (4) County Bail Bond Board in amending Article 21.14 of the Insurance Code. certain counties; providing for We do not agree. The author of the interpretive the composition, organization commentary in Vernon's Annotated Texas and powers, duties, and Constitution, states that the purpose of Art. III, procedures of the board; Sec. 35, is threefold: providing forms and content First, it is designed to prevent log-rolling of applications for licenses and legislation, I.e., to prevent the writing of several for fees, deposits and deeds subjects having no connection with each other in trust to secure payment in one bill for the purpose of combining various of judgments; making certain interests in support of the whole. requirements of corporations acting as sureties; providing Second, it prevents surprise or fraud upon for renewal of licenses, legislators by means of provisions in bills of renewal fees and identifying which the titles give no intimation, and which number of license; providing might therefore be overlooked and carelessly procedures for and reasons and unintentionally adopted. for refusal to issue or for revocation of licenses; Third, it permits the people to be fairly providing for judicial review; apprised of the subjects of legislation under providing for remittitur to consideration, so that they may have an principal in certain situations; opportunity of being heard if they so desire. providing special powers and duties of sheriff; providing [2] [3] Both the constitutional provision extra-county authority of and the questioned statute are to be liberally licensed bondsmen; prohibiting construed in favor of constitutionality. The execution of bonds or statute will not be held unconstitutional advertising as a bondsman by *525 where its provisions relate, directly or unlicensed persons; prohibiting indirectly, to the same general subject, have

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Robinson v. Hill, 507 S.W.2d 521 (1974)

a mutual connection, and are not foreign to less than 150,000. Section 3(c) declares that the subject expressed in the title. See Hayman the provisions of the Act do not apply ‘to Const. Co. v. American Indem. Co., Tex.Sup., the execution of bail bonds' in such counties, 471 S.W.2d 564; Key Western Life Ins. Co. and it could be argued with considerable force v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d that several provisions of the statute deal with 839; Central Ed. Agency v. Independent School matters other than the execution of bail bonds. Dist. of City of El Paso, 152 Tex. 56, 254 See, for example, Section 13. Be that as it S.W.2d 357; Adams v. San Angelo Waterworks may, the statute is not a special and local law Co., 86 Tex. 485, 25 S.W. 605; Continental even though Section 3(c) means that none of Bus System, Inc. v. Carney, Tex.Civ.App., its provisions shall apply in counties having 310 S.W.2d 676 (wr. ref). In this instance the a population of less than 150,000. Although several matters that appellants say are different appellants argue to the contrary, the words subjects actually relate to the same general ‘last preceding federal census' in Sections 3 subject, i.e. the licensing and regulation of bail and 5 refer not to the 1970 census but to the bondsmen, and that general subject is expressed last census prior to the time the applicability in the title. and effect of the law is to be determined in a particular situation. See City of Ft. Worth [4] [5] There is no merit in appellants' v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, 41 contention that the caption is fatally deficient in S.W.2d 228. At the present time the statutory that it fails to disclose that the Act's provisions provisions covered by the limitation set out do not apply to the execution of bail bonds in these two sections apply only in eleven in counties having a population of less than counties, but changes in population may bring 150,000 according to the last preceding federal additional counties under these provisions and census. See Tarrant County Water Control and exclude others that are now governed thereby. Imp. Dist. No. 1 v. Fowler, 142 Tex. 375, 179 [6] [7] [8] Assuming as we do at this S.W.2d 250; Austin v. Gulf, C. & S.F.R. Co., 45 point that the statute by its terms does not Tex. 234. See also Pottorff v. El Paso-Hudspeth apply throughout the State, the primary and Counties Road Dist., 5th Cir., 62 F.2d 498. ultimate test of whether the law is general or Art. III, Sec. 35, requires only that the title special is whether there is a reasonable basis state the general subject; it need not explain for the classification it makes and whether the details. State v. Spartan's Industries, Inc., the law operates equally on all within the Tex.Sup., 447 S.W.2d 407. In our opinion the class. See Board of Man. of Harris Co. Hosp. statute does not violate Art. III, Sec. 35. Dist. v. Pension Bd., Tex.Sup., 449 S.W.2d 33; Smith v. Davis, Tex.Sup., 426 S.W.2d 827; Rodriguez v. Gonzales, 148 Tex. 537, Appellants also contend that the statute is a 227 S.W.2d 791, and authorities there cited. special and local law and, as such, contravenes The Legislature in this instance may well have Art. III, Sec. 56, of our Constitution in a number concluded that bail bondsmen in the more of respects. We do not agree. It is not entirely populous counties should be regulated and clear to us that the statute has no force or effect required to secure their obligations because of whatsoever in counties having a population of

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Robinson v. Hill, 507 S.W.2d 521 (1974)

the high incidence of crime and the difficulties to be license fees, and there is nothing in the involved in enforcing bond forfeitures and present record indicating that they are not. determining the net worth of persons engaged We accoridngly hold that, for purposes of this in the business of writing bonds, but that appeal, the exactions are license fees imposed the same safeguards and procedures were not in the exercise of the police power and are necessary and would be unduly burdensome not occupation taxes. See Brown v. City of in more sparsely populated areas. There is a Galveston, 97 Tex. 1, 75 S.W. 488. reasonable basis for the classification made by the law, and the classification is broad enough to include a substantial class. The fact that As previously indicated, it is our opinion that counties just on either side of the population there is a reasonable basis for the Legislature's line are similarly situated, or that *526 there regulating and requiring additional security are excluded counties constituting part of the from bondsmen in the more populous counties same metropolitan area as included counties, without making the same requirements with does not make the classification unreasonable. respect to bail bondsmen in the counties having Any classification on the basis of population is a smaller population. Since the classification is subject to this complaint, and that circumstance reasonable, the statute does not deny appellants alone is not a sufficient basis for holding the equal protection of the law. statutory classification unconstitutional. The [10] By their point of error No. 7, appellants Legislature has rather broad power to make attack the provisions of Sec. 12 of the Act classifications for legislative purposes, and which authorize the court to remit at least 50 there is nothing here to suggest that the line per cent of the amount paid on a judgment of drawn is arbitrary or capricious or a mere bond forfeiture where the principal has, as a device used for the purpose of giving a local result of money spent or information furnished law the appearance of a general law. See Miller by the surety, been rearrested and returned to v. El Paso County, 136 Tex. 370, 150 S.W.2d the county within 120 days after the date of 1000. In our opinion the statute is a general law final judgment on the bond forfeiture. They and does not violate Art. III, Sec. 56, of the say that these provisions violate Art. III, Sec. Texas Constitution. 55, of the Texas Constitution, which prohibits the Legislature from releasing or extinguishing [9] Appellants further contend that the the liability or obligation of any corporation $500.00 fee that must accompany an original or individual to the State or to any county application for a license and the $250.00 or municipal corporation. In our opinion the renewal fee are occupation taxes. They insist provisions in question do not contravene Art. that as such these fees contravene Art. VIII, III, Sec. 55, because the court is authorized Sections 1 and 2, of the Texas Constitution, to order the remittitur only when the principal because no occupation tax has been levied by was rearrested as a result of money spent the State on the business of writing bail bonds. or information furnished by the surety. The The fees in question are prescribed by a statute remittitur is thus supported by a consideration that is regulatory in nature. They are presumed deemed adequate by the Legislature, and we cannot say it is so inadequate that the provision

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Robinson v. Hill, 507 S.W.2d 521 (1974)

for a remittitur is unconstitutional. See City The judgment of the trial court is affirmed.

of Beaumont v. Fertitta, Tex.Sup., 415 S.W.2d 902; State v. City of Austin, 160 Tex. 348, 331 All Citations S.W.2d 737.

507 S.W.2d 521

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