Ricard v. State

350 S.W.2d 938, 171 Tex. Crim. 456, 1961 Tex. Crim. App. LEXIS 4505

Opinions

MORRISON, Judge.

This is a bond forfeiture proceeding. This record shows without question that prior to the entry of the final judgment appellant had been arrested at the sureties’ expense, had appeared before the court, plead guilty, was assessed a jail term, and was serving such term at the time of the entry of the judgment in the bond forfeiture proceeding.

This is the type of case envisioned by Article 439, V.A.C.C.P. which reads as follows:

“If, before final judgment is entered against the bail, the principal appear or be arrested and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance.”

The court in the case at bar appeared to be laboring under the impression that he had no such discretion except in a certain limited type of cases.

In compliance with the rule set forth in the opinion of this court on rehearing in Williams v. State, 159 Tex. Cr. Rep. 443. 265 S.W. 2d 92, we hold the judgment of forfeiture to be excessive in the sum of $250.00; and, accordingly, if appellee files a remittitur in that amount within 20 days, the judgment will be reformed and affirmed; otherwise, the cause will be reversed and remanded.