Lyles v. State

850 S.W.2d 497, 1993 Tex. Crim. App. LEXIS 29, 1993 WL 19966

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 1993
• Docket: 1302-91
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

This is a criminal bail bond forfeiture case. The State petitioned this Court for review on two grounds, one of which we granted in order to determine the constitutionality of TEX. CODE CRIM.PROC. ANN. Art. 22.16(a). Although we find 22.-16(a) unconstitutional because it utilizes the provisions of TEX. CODE CRIM.PROC. ANN. Art. 22.16(c), we will reverse the Court of Appeals on other grounds.

Initially, we will address whether subsection (a) is constitutional since it was a ground on which we initially granted review. However, the ultimate disposition of this case will hinge on our prior decision in Makeig v. State, 830 S.W.2d 956 (Tex.Crim.App.1992), adopting the decision and reasoning of the Court of Appeals in Makeig v. State, 802 S.W.2d 59 (Tex.App.—Amarillo 1990). We will therefore address Article 22.16(a) and then resolve the instant case.

This matter arose out of a bond forfeiture in the Robertson County Court. Vernon P. Lyles, a professional bondsman, was the surety on a $1500 bond with Thomas Earl Marks as its defendant-principal. Marks failed to appear in court on December 7, 1989, on a misdemeanor property offense and judgment nisi was entered. Marks was rearrested on December 16 and placed in the Robertson County jail. On February 7, 1990, final judgment was entered by the trial court. Respondent filed his motion to remit the full amount of the bond on March 6,1990, along with a motion to vacate or modify the final judgment entered against the bond. The trial court denied his motions.

Respondent Lyles appealed to the Tenth Court of Appeals raising six points of error. The Court of Appeals sustained the three points which addressed remittitur of the bond and therefore reversed the judgment of the trial court in a published opinion. Lyles v. State, 814 S.W.2d 411 (Tex.App.—Waco 1991). The question raised in the Court of Appeals and in this Court is the constitutionality of Art. 22.16(a).

Art. 22.16(a) provides in pertinent part:

(a) After forfeiture of a bond and before the expiration of the time limits set by Subsection (c) of this article, the court shall, on written motion, remit to the surety the amount of the bond after deducting the costs of court, any reasonable costs to the county for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (e) of this article if:

(1) the principal is incarcerated in the county in which the prosecution is pending;

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Art. 22.16(c) provides:

(c) A final judgment may be entered against a bond not earlier than:

(1) nine months after the date the forfeiture was entered, if the offense for which the bond was given is a misdemeanor; or

(2) 18 months after the date the forfeiture was entered, if the offense for which the bond was given is a felony.

Article 22.16(a) is at issue because it is dependent upon timeframes provided for in 22.16(c). Article 22.16(c) has been held unconstitutional by this Court in State v. Matyastik, 811 S.W.2d 102 (Tex.Cr.App.1991) and Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Cr.App.1990).

Article 22.16(c) was first addressed by this Court in Armadillo Bail Bonds v. State, 802 S.W.2d at 237. Our analysis in Armadillo Bail Bonds began by recognizing that a violation of the separation of powers provision of the State Constitution occurs when one branch of government unduly interferes with another branch’s exercise of its constitutionally assigned powers. Id. at 239. Since the ability to enter final judgments is a “core power” of the judiciary, we found that the legislature unduly interfered with the exercise of this power by passing a statute which suspended the entrance of a final judgment for up to a year and a half. Id. at 241. Thus, the statute was found to be a violation of the separation of powers provision since it allowed the legislature to usurp a judicial function. Id.

In State v. Matyastik, this Court applied the reasoning announced in Armadillo Bail Bonds to find section (c)(1) of the statute unconstitutional. State v. Matyastik, 811 S.W.2d at 102. Where section (c)(2) addresses felonies, section (c)(1) of the statute prohibits the court from entering final judgment in a misdemeanor case until nine months after forfeiture. Because of the similar time requirement, (c)(1) was also found to be a legislatively imposed statutory restraint on a trial court’s ability to enter final judgments. Id. at 104. The reasoning in Armadillo Bail Bonds was therefore extended to also hold section (c)(1) unconstitutional as a violation of the separation of powers provision of the State Constitution. Id.

Having found 22.16(c) unconstitutional ¹ this court then considered in Matyastik whether Art. 22.16(a) also interfered with the court’s exercise of the judicial function. State v. Matyastik, 811 S.W.2d at 104. This issue arose because Article 22.16(a) refers to 22.16(c) in the body of the statute. Art. 22.16(a) provides in pertinent part:

After forfeiture of a bond and before the expiration of the time limits set by Subsection (c) of this article, the court shall ... (emphasis added).

In our analysis in Matyastik, we were careful to note that if one part of a statute is held unconstitutional, “the remainder of the statute must be sustained if it is complete in itself and capable of being executed in accordance with the intent wholly independent of that which has been rejected.” Matyastik, 811 S.W.2d at 104, quoting Tussey v. State, 494 S.W.2d 866, 870 (Tex.Cr.App.1973). However, this Court found that subsection (a) is contingent upon the time limitations set forth in subsection (c). Matyastik, 811 S.W.2d at 104. Therefore, we held that the portion of subsection (a) that utilizes subsection (c) is invalid under Article 2, Section 1 of the Texas Constitution since subsection (a) cannot be executed or have any effect without utilizing the provisions of subsection (c). Id.

This Court is now asked to determine whether subsection (a) is to be read without reference to subsection (c)², or, alternatively, find the entire subsection invalid. We believe that the latter is the correct interpretation. As was noted in Matyastik, subsection (a) is contingent upon the time limitations established in subsection (c). Subsection (a) is dependent upon subsection (c) to establish the time-frames for mandatory remittitur. Without these deadlines, remittitur of a forfeited bond would be mandatory at any time after the forfeiture because there is no “judgment” provision in subsection (a). Consequently, subsection (a) cannot be executed or have any effect without the invalid provisions. Matyastik, 811 S.W.2d at 104. Subsection (a) is thus void. We therefore hold that mandatory remittitur provisions of 22.16(a) are no longer valid. Remittitur may instead be done at the trial court's discretion at anytime before entry of a final judgment.³ Tex.Code CRIM.PROC.Ann. Art. 22.16(d).

Additional support for this holding is found in Article 22.16(d). Article 22.16(d) permits a trial court, in its discretion, to remit a bond before the entry of a final judgment. If subsection (a) is to be read without reference to the time limitations of subsection (c), the trial court would no longer have this discretion. The trial court would have to remit the amount of the bond upon written motion of the surety. Such a reading would render subsection (d) impotent. When construing statutes that appear to be in conflict, the two should be harmonized where possible. Tex.Gov’t Code Ann. § 311.025(b); Ex parte Choice, 828 S.W.2d 5, 7 (Tex.Cr.App.1992); Lindsey v. State, 760 S.W.2d 649, 654 (Tex.Cr.App.1988); Stanfield v. State, 718 S.W.2d 734, 736 (Tex.Cr.App.1986). It would therefore be improper to interpret 22.16(a) in a manner which would remove the discretion given to the trial court in Article 22.16(d).

Furthermore, a most important distinction can be made between 22.16(a) and 22.-16(c) which demonstrates that discretionary remittitur should continue. Contrary to the position advocated by the dissents, subsection (a) does not have a provision for any kind of judgment to be entered. Final judgment under subsection (a) can only be entered via the reference to subsection (e), an unconstitutional provision. Alternatively, 22.16(d), even if read without reference to subsection (c), provides for entry of final judgment. Given this distinction, it is obvious that 22.16(d) should survive even though 22.16(a) is invalid.

Article 22.16(c) violates the separation of powers provision of the Texas Constitution because it imposes time limits which prevent a court from entering a final judgment. Although 22.16(a) does not provide for entry of a judgment of any kind, a reading of 22.16(a) to provide for mandatory remittitur at anytime prior to final judgement would violate the separation of powers provision. Such a reading would statutorily mandate a trial court to remit a bond at anytime prior to entry of a final judgment, thereby legislatively removing a trial court’s discretion. However, enforcement of 22.16(d) does not violate the separation of powers provision since it leaves discretion in the trial court to remit a forfeited bond at anytime prior to entry of a final judgment.

We pause here to answer Judge Campbell’s concerns. He argues in his dissent that if 22.16(a) is invalid because of the reference to Article 22.16(c), 22.16(d) must also be invalid because it too utilizes 22.-16(c). We would distinguish 22.16(d) by pointing out that, unlike 22.16(a), 22.16(d) is a discretionary provision. Article 22.16(d) provides:

After the expiration of the time limits set by Subsection (c) of this article and before the entry of a final judgment against the bond, the court in its discretion may remit to the surety all or part of the amount of the bond after deducting the costs of court, any reasonable costs to the court for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (e) of this article.

Unlike 22.16(a), 22.16(d) can be read absent the reference to 22.16(c) without a separation of powers problem that is encountered with 22.16(a). When 22.16(d) is so read, remittitur remains discretionary with the court anytime before final judgment. It does not become mandatory at any time after forfeiture as it does when 22.16(a) is read without reference to the 22.16(c) timeframes.

As we have said previously in this opinion, subsection (a) does not provide for any type of judgment to be entered. Consequently, mandatory remittitur could continue in perpetuity if the subsection (c) time-frames are not utilized. If any of the five conditions under 22.16(a)(l)-(5) (principal incarcerated in county in which the prosecution is pending, principal deceased, etc.) are ever met, the trial court would be forced to remit the bond no matter when the condition is satisfied. Given that mandatory remittitur was originally intended to occur within a limited time, we do not believe this was the intended result.

In our view, Article 22.16(a) cannot have any effect without utilizing the invalid provisions of 22.16(c). We therefore hold that Article 22.16(a) is void; however, this subsection is not controlling in the disposition of the case at bar.

We now turn to the instant case. The facts before us in this matter are almost identical to those in Makeig v. State, 830 S.W.2d 956 (Tex.Crim.App.1992), adopting opinion 802 S.W.2d 59 (Tex.App.—Amarillo 1990). In Makeig, a judgment nisi was entered on June 19,1989 after the principal failed to appear in court on a felony offense. Id. at 60. Final judgment was then entered approximately three months later. Id. at 61. The appellant made a motion for remittitur of a $50,000 bond approximately one month after final judgment was entered. Id. at 61. The trial court granted the appellant’s motion and returned $25,-000, less costs of suit, even though the motion was made after final judgment. Id. at 61.

In reviewing the remittitur, the Court of Appeals held that the trial court did not err by entering final judgment before the expiration of the timeframes in Article 22.16(c) since this subsection of the statute had previously been held unconstitutional by this court. Id. at 61-62. Appellant also argued that the trial court erred by failing to apply the discretionary remittitur portion of the statute, Article 22.16(d). Id. at 62. The Court of Appeals correctly recognized that 22.16(d) directs discretionary re-mittitur when final judgment has not been entered. Id. Since final judgment had already been entered, the Court of Appeals held that 22.16(d) did not apply. Id.

The Court of Appeals found support in two areas for the trial court’s decision to partially remit the bond. First, the Court of Appeals held that since the motion for remittitur had been made within 30 days of the judgment, it was within the trial court’s plenary power to reform the judgment. Tex.R.Civ.Pro. 329b. Additionally, the Court of Appeals held that the power to partially remit the bond was also found in Article 22.17, Tex.Code CRIM.PROC.Ann. This article provides for a two year special bill of review that enables a surety to request, on equitable grounds, the reform of a final judgment and remittitur of the bond amount. Under this Article, the decision to grant or deny the bill is entirely within the discretion of the trial court. The request may be granted in whole or in part. Art. 22.17(a).

In the instant case, final judgment was entered on February 7, 1990. Appellant did not make a motion for remittitur until March 6, 1990. Since final judgment had already been entered, discretionary re-mittitur under article 22.16(d) did not apply. However, the court’s decision to remit part of the bond was within its power under Tex.R.Civ.Pro 329b and Art. 22.17 Tex. Code Crim.Pro. We must now determine whether the decision to not remit the $1,500 bond in the instant case was an abuse of this discretion.

In determining whether there has been an abuse of discretion, it must be determined if the court acted without reference to any guiding rules and principles, or, in other words, whether the court acted arbitrarily or unreasonably. Makeig, 802 S.W.2d at 62; Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). Article 22.17 contains no guidelines for the exercise of the court’s discretion. Makeig, 802 S.W.2d at 62.

An abuse of discretion may exist when there is a showing of sufficient cause for the accused’s failure to comply. See Makeig, supra at 62. However, mere subsequent appearance by the accused is not sufficient cause for complete remission of the forfeiture. Id. at 62. Sufficient cause is generally a showing that the party did not break his recognizance intentionally with the design of evading justice, or without a sufficient cause or reasonable excuse, such as unavoidable accident or inevitable necessity preventing his appearance. Id. at 62-63. Although resulting extreme hardship on the surety may be considered, a balancing consideration may be whether compensation was received by the surety for taking the risk. Id. at 62-63. While not seeking to punish the surety for the principal’s failure to appear, the law does contemplate that such noncompliance will result in forfeiture of the bond amount. Id. These factors, material to the court’s decision before final judgment, continue to be pertinent while the judgment is subject to the court’s plenary powers of reformation. Id. at 63.

In Makeig, the Court of Appeals found that there had not been a showing of sufficient cause or reasonable excuse for the accused’s absence. Makeig, supra at 63. Since the trial court remitted $25,000, less costs, of a $50,000 bond, the Court of Appeals could not find an abuse of discretion. Id. In doing so, the Court of Appeals found the following facts important: 1) the trial court had remitted more than seven times the surety’s actual costs ($3,475) in attempting to locate her client; 2) there had been no showing of sufficient cause for the principal’s absence; 3) the principal had not been apprehended through the efforts of the surety; and, 4) the surety had received compensation for the risk it endured under the bond. Id.

In the instant case, the appellant/surety has not demonstrated that any costs were incurred in attempting to locate the principal. There is no evidence from the record that there was sufficient cause for the principal’s absence on appearance day. Additionally, there is no evidence that the principal was apprehended as the result of the efforts of the surety. While there is no evidence of the amount of the bonding fee assessed by surety against the principal, it is unlikely that it was done free of charge. Under these circumstances, we cannot say that it was an abuse of discretion for the trial court to deny appellant’s motion to remit the $1,500 bond.

Since the partial remittitur was clearly within the power of the court and there was no abuse of discretion in the exercise of this power, the judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed. On the issue presented for our review, we hold Article 22.16(a) unconstitutional because it relies on the invalid provisions of 22.16(c).

1 . After the holdings in Armadillo and Matyastik, Article 22.16(c) was considered unconstitutional in its entirety. Some confusion has arisen on this issue by our adoption of the Court of Appeals decision in Makeig v. State, 802 S.W.2d 59 (Tex.App.—Amarillo 1990). In the opinion, there is a reference that the 22.16(c) timeframes must expire before 22.16(d) applies. We held 22.16(c) unconstitutional in Armadillo and Ma-tyastik and therefore 22.16(c) should not control the applicability of 22.16(d). It was not our intention to reverse these decisions by adopting Makeig.

2 . More specifically in Article 22.16(a), the reference made by the language "... and before the expiration of the time limits set by Subsection (c) of this article ...”

3 . In his dissent. Judge Baird disagrees that Ma-tyastik held that remittitur is now discretionary with the court at anytime prior to entry of a final judgment. Instead, he believes Matyastik actually stated that mandatory, rather than discretionary, remittitur may be done at anytime before entry of a final judgement. The exact language in Matyastik was as follows:

"Because subsection (a) cannot be executed or have any effect without utilizing the provisions of subsection (c), we hold that the portion of Art. 22.16(a), V.A.C.C.P., utilizing subsection (c) is invalid under Article 2, § 1 of the Texas Constitution. Thus, remittitur now may be done anytime between forfeiture and entry of a final judgment.”

Respectfully, we would point out that the term "mandatory" is not used in the passage. Since remittitur was mandatory by virtue of the time limitations in subsection (c), it follows that it is no longer mandatory if the time limitations are eliminated. This proposition is further supported by the use of the discretionary language "remittitur now may be done.” In the absence of mandatory provisions, we believe that discretionary remittitur as found in Article 22.16(d) is the logical successor.