ONION, Presiding Judge
(concurring).
In the instant bond forfeiture case at the hearing on whether the judgment nisi should be made final the judgment nisi was not introduced into evidence. Only the bail bond was introduced by the State. In the appellate record before us is the judgment nisi, regular on its face, signed by the County Judge before whom the aforesaid hearing was conducted.
It is well established that both the bond and the judgment nisi must be introduced into evidence to support a final judgment of forfeiture. See Fears v. State, 500 S.W.2d 815 (Tex.Cr.App.1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973), and cases there cited.
In 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 81, p. 687, it is written:
[467]*467“As a prerequisite to a judgment final, the state must prove the allegations of the petition. The bond and the judgment nisi comprise the proof, and a judgment against the obligors in the absence of this proof is not authorized. . . .”
The practice is explained in Hester v. State, 15 Tex.App. 418 (1884), where the court discussed bond forfeiture proceedings by saying:
“. . . It must be remembered, however, that all the proceedings in such cases are ex parte up to the service of the scire facias on the sureties. After such service for the first time have these sureties the right to be heard in the case; and none of the previous proceedings are binding upon them until they have had an opportunity of showing ‘why the judgment nisi shall not be made final.’ By their general denial they say, in effect, to the State, ‘you have no bond.’ The State must meet this denial by producing the bond in evidence, just as the plaintiff is required to produce in evidence his promissory note where the general denial is pleaded to an action upon it. As was said by this court in Houston et al. v. The State, 13 Texas Court of Appeals, 560: ‘A proceeding upon a forfeited bail bond is in effect a suit upon the bond, in which the scire facias serves the purpose of both a petition and a citation. Its foundation is the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. To entitle the State to a judgment final it must prove the cause of action as in a civil suit. This proof is made by, first, the bond, and, second, the judgment nisi declaring its forfeiture.’
“Because the judgments final were rendered without sufficient evidence to support them, the judgment in each of these cases is reversed and each of the cases remanded for a new trial.”
In addition to the proceedings being ex parte up to the service of the scire facias on the sureties, a judgment nisi may not be valid for a number of reasons. A judgment nisi omitting any of the statutory requirements will not support a final judgment of forfeiture. See Article 22.02, Vernon’s Ann.C.C.P., note # 6. For example, the judgment nisi must recite that it “will be made final, unless good cause be shown why the defendant did not appear.” See Article 22.02, supra. “This requirement is mandatory.” 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 63, p. 672. If there is an absence of such recitation, the judgment nisi will not support a final judgment. Id. Bailey v. State, 22 S.W. 40 (Tex.Cr.App. 1893). Further, the names of all the parties to the undertaking or bail bond are an essential part of the judgment nisi, inasmuch as the judgment must be rendered against the principal as well as against the sureties. A failure to name all the obligors in the judgment nisi is reversible error. Douglas v. State, 26 Tex.App. 248, 9 S.W. 733 (Tex.Ct.App.1888); Fitzgerald v. State, 88 Tex.Cr.R. 268, 225 S.W. 1096 (1920). Further, a variance between the judgment nisi and the bond may be fatal. A variance between the names of the parties to the bond and the names of the parties against whom the judgment nisi is taken is fatal, unless there is a finding that names refer to and describe the same persons. Cooper v. State, 91 Tex.Cr.R. 289, 238 S.W. 658 (1922); Bowen v. State, 413 S.W.2d 915 (Tex.Cr. App.1967); Overton v. State, 413 S.W.2d 920 (Tex.Cr.App.1967). A fatal variance occurs where the offense named in the bond differs from that specified in the indictment and the judgment nisi. Shropshire v. State, 433 S.W.2d 898 (Tex.Cr.App.1968); Morgan v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952).
In Morgan v. State, supra, it was pointed out that the variance between the bond and the judgment nisi may be of such a nature and seriousness as to render the judgment nisi defective, and the parties to the bond would be deprived of the right to urge such fatal variance in the absence of an effort by the State to introduce the judgment nisi in evidence.
From the foregoing it is easy to understand why the cases have held that the introduction of a judgment nisi in a hearing [468]*468to make that instrument final is essential and necessary. It cannot be said, as does the majority, that the rule has no sound basis in policy or logic.
It is, of course, true that generally a trial court can take judicial notice of the judgments and orders entered in the same cause, both civil and criminal.
In 23 Tex.Jur.2d, Evidence, § 26, p. 46, it is written:
“. . .a trial court does know judicially the contents of the record and all prior proceedings in a civil cause that is presently before the court. Thus, the court knows judicially the date on which the suit and the pleadings therein were filed, the contents of the pleadings, whether or not money has been deposited in court, and all previous orders, judgments, and decrees entered in the cause.” (Emphasis supplied.) See also McCormick and Ray, Texas Law of Evidence, § 185, pp. 202-203.
This rule of judicial notice does not appear to make exceptions as to different types of judgments.
This writer has been unable to find any Texas case where this rule of judicial notice has been applied to a judgment nisi in a bond forfeiture proceeding.
The question was raised in Morgan v. State, supra, in a similar situation as in the instant case. There the State did not introduce the judgment nisi into evidence. It was, however, found in the record on appeal. The State urged that the trial court could and would take judicial knowledge of its own judgments and therefore the introduction of the judgment nisi into evidence was unnecessary. The court determined it was unnecessary to pass on the question presented because a fatal variance was observed between the bond and the judgment nisi, and observed, as noted above, that the failure to introduce the judgment nisi prevented the parties to the bond from urging the variance. The cause was reversed for the failure to introduce the judgment nisi.
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ONION, Presiding Judge
(concurring).
In the instant bond forfeiture case at the hearing on whether the judgment nisi should be made final the judgment nisi was not introduced into evidence. Only the bail bond was introduced by the State. In the appellate record before us is the judgment nisi, regular on its face, signed by the County Judge before whom the aforesaid hearing was conducted.
It is well established that both the bond and the judgment nisi must be introduced into evidence to support a final judgment of forfeiture. See Fears v. State, 500 S.W.2d 815 (Tex.Cr.App.1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973), and cases there cited.
In 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 81, p. 687, it is written:
[467]*467“As a prerequisite to a judgment final, the state must prove the allegations of the petition. The bond and the judgment nisi comprise the proof, and a judgment against the obligors in the absence of this proof is not authorized. . . .”
The practice is explained in Hester v. State, 15 Tex.App. 418 (1884), where the court discussed bond forfeiture proceedings by saying:
“. . . It must be remembered, however, that all the proceedings in such cases are ex parte up to the service of the scire facias on the sureties. After such service for the first time have these sureties the right to be heard in the case; and none of the previous proceedings are binding upon them until they have had an opportunity of showing ‘why the judgment nisi shall not be made final.’ By their general denial they say, in effect, to the State, ‘you have no bond.’ The State must meet this denial by producing the bond in evidence, just as the plaintiff is required to produce in evidence his promissory note where the general denial is pleaded to an action upon it. As was said by this court in Houston et al. v. The State, 13 Texas Court of Appeals, 560: ‘A proceeding upon a forfeited bail bond is in effect a suit upon the bond, in which the scire facias serves the purpose of both a petition and a citation. Its foundation is the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. To entitle the State to a judgment final it must prove the cause of action as in a civil suit. This proof is made by, first, the bond, and, second, the judgment nisi declaring its forfeiture.’
“Because the judgments final were rendered without sufficient evidence to support them, the judgment in each of these cases is reversed and each of the cases remanded for a new trial.”
In addition to the proceedings being ex parte up to the service of the scire facias on the sureties, a judgment nisi may not be valid for a number of reasons. A judgment nisi omitting any of the statutory requirements will not support a final judgment of forfeiture. See Article 22.02, Vernon’s Ann.C.C.P., note # 6. For example, the judgment nisi must recite that it “will be made final, unless good cause be shown why the defendant did not appear.” See Article 22.02, supra. “This requirement is mandatory.” 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 63, p. 672. If there is an absence of such recitation, the judgment nisi will not support a final judgment. Id. Bailey v. State, 22 S.W. 40 (Tex.Cr.App. 1893). Further, the names of all the parties to the undertaking or bail bond are an essential part of the judgment nisi, inasmuch as the judgment must be rendered against the principal as well as against the sureties. A failure to name all the obligors in the judgment nisi is reversible error. Douglas v. State, 26 Tex.App. 248, 9 S.W. 733 (Tex.Ct.App.1888); Fitzgerald v. State, 88 Tex.Cr.R. 268, 225 S.W. 1096 (1920). Further, a variance between the judgment nisi and the bond may be fatal. A variance between the names of the parties to the bond and the names of the parties against whom the judgment nisi is taken is fatal, unless there is a finding that names refer to and describe the same persons. Cooper v. State, 91 Tex.Cr.R. 289, 238 S.W. 658 (1922); Bowen v. State, 413 S.W.2d 915 (Tex.Cr. App.1967); Overton v. State, 413 S.W.2d 920 (Tex.Cr.App.1967). A fatal variance occurs where the offense named in the bond differs from that specified in the indictment and the judgment nisi. Shropshire v. State, 433 S.W.2d 898 (Tex.Cr.App.1968); Morgan v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952).
In Morgan v. State, supra, it was pointed out that the variance between the bond and the judgment nisi may be of such a nature and seriousness as to render the judgment nisi defective, and the parties to the bond would be deprived of the right to urge such fatal variance in the absence of an effort by the State to introduce the judgment nisi in evidence.
From the foregoing it is easy to understand why the cases have held that the introduction of a judgment nisi in a hearing [468]*468to make that instrument final is essential and necessary. It cannot be said, as does the majority, that the rule has no sound basis in policy or logic.
It is, of course, true that generally a trial court can take judicial notice of the judgments and orders entered in the same cause, both civil and criminal.
In 23 Tex.Jur.2d, Evidence, § 26, p. 46, it is written:
“. . .a trial court does know judicially the contents of the record and all prior proceedings in a civil cause that is presently before the court. Thus, the court knows judicially the date on which the suit and the pleadings therein were filed, the contents of the pleadings, whether or not money has been deposited in court, and all previous orders, judgments, and decrees entered in the cause.” (Emphasis supplied.) See also McCormick and Ray, Texas Law of Evidence, § 185, pp. 202-203.
This rule of judicial notice does not appear to make exceptions as to different types of judgments.
This writer has been unable to find any Texas case where this rule of judicial notice has been applied to a judgment nisi in a bond forfeiture proceeding.
The question was raised in Morgan v. State, supra, in a similar situation as in the instant case. There the State did not introduce the judgment nisi into evidence. It was, however, found in the record on appeal. The State urged that the trial court could and would take judicial knowledge of its own judgments and therefore the introduction of the judgment nisi into evidence was unnecessary. The court determined it was unnecessary to pass on the question presented because a fatal variance was observed between the bond and the judgment nisi, and observed, as noted above, that the failure to introduce the judgment nisi prevented the parties to the bond from urging the variance. The cause was reversed for the failure to introduce the judgment nisi.
The rule that the failure to introduce the judgment nisi in evidence is fatal to a valid final judgment of forfeiture should continue to be the rule with the exception or modification that where the final judgment or record reflects the trial court took judicial knowledge of the judgment nisi, not introduced into evidence, and the same is a part of the appellate record and there are no fatal variances between the bond and the judgment nisi, the final judgment of forfeiture can be affirmed without the necessity of reversal.
In the instant case the judgment nisi, although not introduced into evidence, is in the appellate record, shows it was signed by the judge who conducted the subsequent hearing and was filed and made part of the trial court’s records long prior to the hearing. An examination of the judgment nisi reveals no variance between it and the bond, and the appellant has not pointed out any variance. While the trial judge did not say he was taking judicial knowledge of the judgment nisi, the final judgment indicated he did.
While the judgment nisi should have been introduced, I think a reversal under the circumstances of the instant case would be absurd, a mere spinning of judicial wheels. I would establish the above described narrow exception to the rule that the judgment nisi must always be introduced and affirm this case.
In my opinion the majority goes too far in eliminating the requirement that the judgment nisi be introduced into evidence. The effect of the majority’s holding will encourage the State not to introduce the judgment nisi and the court to take judicial notice. We may soon be flooded with appeals where no judgment nisi is introduced, no judgment nisi appears in the appellate record, and a claim of judicial notice is advanced on appeal. Will we have to send for the judgment nisi, if one, and further delay the appeal and the ends of justice?
For the reasons stated, I concur.