Ex Parte Byers

612 S.W.2d 534, 1980 Tex. Crim. App. LEXIS 1418

• Court: Court of Criminal Appeals of Texas
• Decided: October 22, 1980
• Docket: 65021
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

Byers has been found guilty of burglary of a habitation, assessed a punishment of fifteen years’ confinement and a $5000 fine, and sentenced. He gave notice of appeal and asked to be admitted to bail but the trial court refused, apparently holding that he was not eligible for bail.

The question presented is whether a defendant whose punishment was assessed at fifteen years’ confinement and a fine is eligible to be admitted to bail pending appeal. The answer is, Yes.

As originally drafted, Article 44.04 of the 1965 Code of Criminal Procedure spoke explicitly to the question of whether a defendant was eligible for bail after conviction if his punishment was fifteen years’ confinement and a fine. It provided, 1965 Texas General Laws, Chapter 722, Section 1, Article 44.04 (emphasis supplied):

“(a) Any defendant who is convicted of a misdemeanor, or who is convicted of a felony and whose punishment is assessed at a fine or confinement not to exceed fifteen years or both, shall be entitled to bail under the rules set forth in this Chapter pending disposition of his motion for new trial, if any, and pending disposition of his appeal, if any, and until his conviction becomes final. * * * * % *

“(d) If the defendant is on bail when the trial commences and is convicted of a misdemeanor appealable to the Court of Criminal Appeals or of a felony and his punishment is assessed at a fine or confinement not to exceed fifteen years, or both, he shall remain on such bail and the bail shall not be considered discharged until his conviction has become final,

“(e) If the defendant is in custody when the trial commences, and his punishment is assessed at a fine or confinement not to exceed fifteen years, or both, he shall be entitled to bail until his conviction has become final .... * * *”

Thus it was clear under former Article 44.-04 that a defendant whose punishment was assessed at fifteen years’ confinement and a fine was eligible (indeed, entitled) to bail pending appeal. The parties agree that this was the law.

We also note that the same statute provided (emphasis supplied):

“(h) If the punishment assessed exceeds fifteen years confinement, the defendant shall be placed in custody of the sheriff and the bail thereby considered discharged immediately upon the return into court of the verdict as to punishment, or if the minimum punishment possible under the law exceeds fifteen years, then immediately upon the return into court of the verdict of guilty.”

It is plain that the emphasized phrase referred only to the confinement aspect of punishment without regard to the aspect of fine, for the rest of the statute (as we have seen) made it clear that the addition of a fine to a punishment of fifteen years’ confinement did not make a defendant ineligible for bail; that is, it did not amount to a punishment that “exceeds fifteen years confinement.”

In 1977 the Legislature amended Article 44.04 to remove the entitlement to bail pending appeal for felons, giving the trial judge discretion to deny bail in particular circumstances. 1977 Texas General Laws, Chapter 234. The statute was rewritten, and the pertinent Subdivision, V.A.C.C.P., Article 44.04(b), now reads:

“(b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement but shall immediately be placed in custody and the bail discharged.”

The statute no longer explicitly mentions punishment by fine or by both confinement and fine. Does this mean that the Legislature intended to change the law so that a defendant whose punishment comprised fifteen years’ confinement and a fine was no longer eligible for bail?

The appellant speculates in his brief that it was not the legislative intent to change the law, and he offers hypothetical reasons; the State in its brief asserts that a literal reading of Subdivision (b) requires us to hold that the Legislature changed the law as well as the language. There is no reason to speculate about the legislative intent for Subdivision (b), for the clearest possible expression of intent is in the public record. When called upon to begin floor debate by summarizing the contents of the bill (S.B. 52) that revised Article 44.04, the sponsor of the bill in the House of Representatives (Rep. Sernos) stated (emphasis supplied): “Subsection [sic] (b) restates the current law that a defendant who’s convicted and sentenced in excess of fifteen years may not be eligible for bail.” Tape recording of House session for May 11, 1977. The proceedings of the Senate¹ and the respective committees of each house ² reveal no intent to change this feature of the law. Commentators have not discerned any change in this feature of the law.³

The proper construction of Subsection (b) is like that of Subsection (h) in the former statute; it refers only to the confinement aspect of punishment, without regard to the aspect of fine. A defendant like Byers who has been assessed a punishment of fifteen years’ confinement and a fine is eligible for bail pending appeal under present law, as he would have been under former law.

A procedural question remains. This case came to us as an original application for a writ of habeas corpus. Byers asks us to grant him the bail pending appeal which the trial court denied. That we shall not do. As we noted in Ex parte Fowler, 573 S.W.2d 241, 244-245 (Tex.Cr. App.1978) (Vollers, J.) (footnote omitted):

“[T]he use of habeas corpus to determine the issue of bail on appeal seems to have been supplanted by the provision of Article 44.04 [, V.A.C.C.P.], pertaining to bond pending appeal. In the revision of Article 44.04 at the last session of the legislature, the legislature saw fit to provide that

“ ‘(g) The right of appeal to the Court of Criminal Appeals in this state is expressly accorded the defendant for a review of any judgment or order made hereunder, and said appeal should be given preference by the Court of Criminal Appeals.’

“ * * * [W]e shall no longer review such matters by habeas corpus since a specific right of appeal is provided.”

Accordingly, we shall not use the writ of habeas corpus to fix the amount of bail for Byers pending the appeal of his conviction. That is the duty of the trial court, subject to our review by means of the appeal provided by V.A.C.C.P., Article 44.04(g).

Byers’ claim is not that the amount of his bail is unreasonably high; it is that the trial court has denied him bail wrongly under V.A.C.C.P., Article 44.04(b). As we have held above, he is eligible for bail pending appeal. The trial court has a non-discretionary duty to consider his application for bail in accordance with V.A.C.C.P., Article 44.04(c). (The trial court may deny bail if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail. Id. The parties seem to agree that the denial of bail in this case was not based on any discretionary finding of such good cause, but rather on a holding that as a matter of law Byers was not eligible for bail because of his punishment.) The appropriate remedy would be that the trial court be ordered to admit him to bail unless bail could be denied under V.A.C.C.P., Article 44.04(c). Accordingly we shall treat his application as one for a writ of mandamus rather than habeas corpus. Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978). See Houlihan v. State, 579 S.W.2d 213, 216 (Tex.Cr.App. 1979).⁴

Byers is entitled to relief. We are confident that the trial court will consider him for bail without our having to issue a writ of mandamus.

DALLY, J., concurs in the result.

1 . Sen. Harris (sponsor): “Presently the law directs its attention to anybody that gets more than fifteen years; then they’re automatically denied bail after their conviction. This deals with under fifteen years, after conviction.” Tape recording of Senate session for March 24, 1977.

2 . “Q [By Sen. Santiesteban, chairman]: Frank, why don’t you start out by just telling us how this changes existing law?

“A [By Frank Maloney, first witness]: Well, existing law allows bail after any felony conviction providing—

“Q As a matter of right?

“A As a matter of right.

“Q If it’s less than 15 years?

“A That’s right.

“Q So the big change in this is, the judge has a discretion.

“A That’s really the only major change. * * * * * *

“A * * * As it’s written, Senator, the TCDLA would only make philosophical objections to it. I mean, we have — 1 don’t see anything wrong with the language in it at all.”

Tape recording of hearing before Subcommittee on Criminal Matters, Senate Committee on Jurisprudence, March 8, 1977 (authors of bill present).

See also, Tape recording of hearing before Subcommittee on Criminal Matters, Senate Committee on Jurisprudence, Feb. 1, 1977; Tape recording of hearing before House Committee on Criminal Jurisprudence, May 3, 1977.

3 .“The Texas Legislature also amended Article 44.04 of the Code of Criminal Procedure. Denial of bail to persons whose punishment exceeds fifteen years is retained.” Goranson, “Criminal Law & Procedure: Arrest to Indictment,” 32 Sw.L.J. 449, 456 (1978) (footnotes omitted).

“Although Article 44.04 was amended in various ways effective August 29, 1977, the fifteen-year sentence limit provision regarding bail pending appeal remained the same.” Hip-pard, “Criminal Procedure,” 33 Sw.L.J. 505, 554 (1979) (footnote omitted).

4 . We should not be understood to say that mandamus was the only proper procedure. Appeal under V.A.C.C.P., Art. 44.04(g) also might have been used, as we implied in Ex parte Fowler, 573 S.W.2d 241 (Tex.Cr.App. 1978). Although Byers gave notice of appeal from the ruling that denied bail, he has not proceeded thereafter in the form of an appeal. When our original jurisdiction was invoked, we ordered Byers enlarged under bail while his application was pending.