Armadillo Bail Bonds v. State

• Decision Date: 02 May 1989
• Docket Number: No. 05-88-01369-CV,05-88-01369-CV
• Citation: 772 S.W.2d 193
• Parties: ARMADILLO BAIL BONDS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 193

772 S.W.2d 193

ARMADILLO BAIL BONDS, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01369-CV.

Court of Appeals of Texas Dallas.

May 2, 1989.

Rehearing Denied June 12, 1989.

Randy Adler, Dallas, for appellant.

Alec B. Stevenson, III, Dallas, for appellee.

Before WHITHAM, THOMAS and BURNETT, JJ.

WHITHAM, Justice.

In this criminal bail bond forfeiture case, the appellant-surety, Jerry Wardlow, doing business as Armadillo Bail Bonds, appeals from a judgment against the bond in favor of the appellee, the State of Texas. The sole issue is whether article 22.16(c)(2) of the Texas Code of Criminal Procedure violates the separation of powers doctrine provided by article II, section 1 of the Constitution of the State of Texas. The trial court concluded that the statute violated separation of powers and entered final judgment before the expiration of eighteen months after the forfeiture was entered. We agree that the statute violated separation of powers. Accordingly, we affirm.

Effective June 20, 1987, article 22.16(c)(2) of the Texas Code of Criminal Procedure provides that after forfeiture of a bond a final judgment may be entered against a bond not earlier than eighteen months after the date the forfeiture was entered, if the offense for which the bond was given is a felony. We surmise that article 22.16(c)(2) resulted from the decision of the Court of Criminal Appeals in Williams v. State, 707 S.W.2d 40 (Tex.Crim.App.1986). In effect, the holding in Williams deprived bail bondsmen of a two year post-final judgment period in which they could obtain a ninety-five percent reduction in the judgment amount if they produce the principal-defendant. See Williams, 707 S.W.2d at 44. In turn, the legislature, by article 22.16(c)(2), denied the State of Texas a final judgment for an eighteen month period in order to allow the bail bondsman to produce the principal-defendant. If the principal-defendant is produced, then the bail bondsman may hope for a remittitur of all or a part of the amount of the bond. TEX.CODE CRIM.PROC.ANN. art. 22.16(d) (Vernon Supp.1989).

It is undisputed that the offense for which the bond was given is a felony and that the bond was executed and posted after the effective date of article 22.16(c)(2). It is also undisputed that after the effective date of article 22.16(c)(2), by judgment nisi, the trial court on February 19, 1988, forfeited the bond and that on August 16, 1988, the trial court entered final judgment against the bond. Hence, the trial court entered final judgment contrary to the eighteen month time restraint directed by the legislature in article 22.16(c)(2). In his sole point of error, Wardlow contends that the trial court erred as a matter of law in denying his motion for new trial because of the provisions of article 22.16(c)(2). The State responds that under the doctrine of separation of powers the legislature may not tell a court that it must wait eighteen months after trial before it may enter a final judgment. We agree with the State.

From the Constitution of the State of Texas, we know that the people of Texas have divided the powers of government of the State of Texas into three departments. We know also that these three departments are the legislative, the executive, and the judicial, and that none of these departments can exercise any power assigned by the constitution to either of the others. As commanded by the Constitution of the State of Texas:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in instances herein expressly permitted.

TEX. CONST. art. II, § 1. A court is an instrumentality of sovereignty, the repository of its judicial power, with authority to adjudge as to the rights of person or property between adversaries. Mengel Box Co. v. Fowlkes, 135 Tenn. 202, 186 S.W. 91, 92 (1916). Therefore, in the context of the present case, we must determine if the State of Texas, as sovereign, by its Constitution has placed the judicial power of the State of Texas in its courts. We conclude that the State of Texas has placed judicial power, with authority to adjudge as to the rights of person or property between adversaries, in the judicial branch. We reach this conclusion because the State of Texas, as sovereign, created district courts, and provided for judges of those courts, in article V, sections 1 and 7 of its Constitution and placed its judicial power in all criminal cases of the grade of felony in those district courts. TEX. CONST. art. V, § 8. More specifically article V, section 8 vests power over bail bond forfeitures in the judicial branch of the government. Williams, 707 S.W.2d at 45. Hence, it is clear from these constitutional provisions that the district court has power over bonds and thus as part of that power, it also has power over bond forfeitures. Williams, 707 S.W.2d at 45. It is also clear that the legislature may define certain parameters within the operation of the judicial branch, whether it be to mandate certain penalties; certain procedures, such as the Texas Code of Criminal Procedure; or even rules of evidence. Williams, 707 S.W.2d at 45. However, the legislature may not interfere with the functions and powers of the judicial branch so as to usurp those functions and powers. Williams, 707 S.W.2d at 45-46.

Therefore, we reach the question of whether the legislature interfered with the functions and powers of the judicial branch so as to usurp those functions and powers by imposing the eighteen month delay in the entry of final judgment. "Judicial power" as envisioned by the Constitution embraces (1) the power to hear facts, (2) the power to decide the issues of fact made by the pleadings, (3) the power to decide the questions of law involved, (4) the power to enter a judgment on the facts found in accordance with the law as determined by the court, and (5) the power to execute the judgment or sentence. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 645 (1933); Kelley v. State, 676 S.W.2d 104, 107 (Tex.Crim.App.1984). The Texas Constitution gives the judicial branch power over bail bond forfeitures. The legislature may, of course, pass laws to facilitate that power and regulate the procedures guiding the right to bail and the forfeiture of bail. Williams, 707 S.W.2d at 47. However, the legislature has no power to alter a final judgment rendered by the court in a bond forfeiture. Otherwise, the power of the judicial branch would be a mockery, subject to the whim of the legislature. The finality of judgments would not exist and courts would be legislative forums. Williams, 707 S.W.2d at 47.

The Code of Criminal Procedure particularizes each step in the collection of bail bonds. First is the entry, after the principal's failure to appear on being called, of judgment nisi that the state recover of the defendant and of the sureties the amount for which they are bound, and that the judgment will be made final, unless good cause for the principal's failure to appear be shown. Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078 (1924); TEX.CODE CRIM.PROC.ANN. art. 22.02 (Vernon 1966). By the judgment nisi the court acquires jurisdiction to adjudicate the matter of enforcing the principal's obligation to the state, as well as that of the sureties. Burgemeister, 259 S.W. at 1079. Moreover, the proceedings shall be governed by the same rules governing other civil suits. When a forfeiture has been declared upon a bond, the court or clerk shall docket the case upon the scire facias or upon the civil docket, in the name of the State of Texas, as plaintiff, and the principal and his sureties, if any, as defendants; and the proceedings had therein shall be governed by the same rules governing other civil suits. TEX.CODE CRIM.PROC.ANN. art. 22.10 (Vernon Supp.1989). Furthermore, the Texas Code of Criminal Procedure suggests that final judgment be entered following trial on the merits and without any prescribed waiting period. When, upon a trial of the issues presented, no sufficient cause is shown for the failure of the principal to appear, the judgment shall be made final against him and his sureties, if any, for the amount in which they are respectively bound; and the same shall be collected by execution as in civil actions. Separate executions shall issue against each party for the amount adjudged against him. The costs shall be equally divided between the sureties, if there be more than one. TEX.CODE CRIM.PROC.ANN. art. 22.14 (Vernon 1966).

We conclude that the eighteen month delay in the entry of judgment dictated by the legislature is not a practice and procedure rule. We reach this conclusion because the Supreme Court has the full rulemaking power in the practice and procedure in civil actions, and the Supreme Court's rules and amendments to rules remain in effect unless and until disapproved by the legislature. TEX.GOV'T CODE ANN. § 22.004(a) & (b) (Vernon 1988). Thus, it cannot be said that the requirement that entry of judgment be delayed eighteen months is a practice and procedure rule. Were that requirement a practice and procedure rule, it would be found in the Texas Rules of Civil Procedure as promulgated by the Supreme Court. Instead, we conclude that the requirement that entry of judgment be delayed eighteen months constitutes legislative interference in the conduct of the business of the judiciary. Many years ago, the Georgia Legislature declared that all applications for certiorari to the Georgia Supreme Court not decided within ninety days should be considered as having been granted. Thus, the legislature denominated the...