Benson v. State
| Decision Date | 31 August 2015 |
| Docket Number | NO. 03–15–00121–CR,03–15–00121–CR |
| Citation | 476 S.W.3d 136 |
| Parties | Tom Benson, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Tom Benson, pro se.
Tim Labadie, Assistant County Attorney, Austin, for The State of Texas.
Before Chief Justice Rose, Justices Goodwin and Field
This is an appeal from a final judgment in a bond-forfeiture suit. Roy Whipple, the principal, was charged with a misdemeanor offense in Travis County. Appellant Tom Benson, the surety, filed a bond conditioned on Whipple's subsequent appearance. Whipple later failed to appear in court as required. Consequently, the trial court issued a judgment nisi and declared the bond forfeited. See Tex. Code Crim. Proc. art. 22.02.
The State later filed a motion for summary judgment contending that it had established every element of its bond-forfeiture claim as a matter of law and asked the trial court to finalize the judgment. In response, Benson raised the affirmative defense provided by Texas Code of Criminal Procedure article 22.13(a)(5)(A), which states:
Id. art. 22.13(a)(5)(A). Benson presented evidence that Whipple had been incarcerated in Las Vegas, Nevada, within 180 days of his failure to appear in Travis County.1
The trial court granted the State's motion for summary judgment, and this appeal followed. In his sole point of error, Benson argues that the trial court erred by granting the State's motion for summary judgment because he raised a genuine issue of material fact with respect to each element of his affirmative defense. We agree with Benson and will reverse.
Although bond-forfeiture proceedings are criminal cases, appellate review of bond-forfeiture proceedings is governed by the same rules as civil suits. See id. art. 44.44; Alvarez v. State, 861 S.W.2d 878, 881 (Tex.Crim.App.1992) (per curiam); Mendez v. State, No. 03–12–00201–CV, 2013 WL 5936624, at *1 n. 1 (Tex.App.–Austin Oct. 31, 2013, no pet.) (mem.op.). The appellate court reviews a summary judgment de novo and it takes as true all evidence favorable to the nonmoving party. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When moving for summary judgment in a bond-forfeiture case, the State has the burden of establishing that there is no genuine issue of material fact as to any of the essential elements of the State's cause of action and that it is entitled to judgment as a matter of law. Alvarez, 861 S.W.2d at 880. The elements of the State's cause of action are the following: (1) there was a valid bond; (2) the defendant's name was distinctly called at the courthouse door; and (3) the defendant failed to appear within a reasonable time of that call. See id. at 881 ( Tex. Code Crim. Proc. art. 22.02 ). The burden of proof on the second and third elements is satisfied by the judgment nisi. Id. Once the State establishes through the bond and the judgment nisi that there are no genuine issues of material fact, the burden shifts to the defendant to raise a fact issue on the affirmative defense of exoneration. Hill v. State, 955 S.W.2d 96, 100 (Tex.Crim.App.1997). A party seeking to avoid summary judgment by virtue of an affirmative defense bears the burden of raising a material issue of fact on each element of that defense. See id. at 101 (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) ).
This dispute requires us to interpret Texas Code of Criminal Procedure article 22.13. The meaning of a statute is a legal question, which we review de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009). When construing a statute, our primary objective is to ascertain and give effect to the legislature's intent. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631–32 (Tex.2008). In determining legislative intent, we first consider the plain language of the statute. General Motors Corp. v. Bray, 243 S.W.3d 678, 685 (Tex.App.–Austin 2007, no pet.). When statutory text is clear, it is determinative of legislative intent, unless enforcing the plain meaning of the statute's words would produce an absurd result.
Summers, 282 S.W.3d at 437. Only when the statutory text is ambiguous do we " ‘resort to rules of construction or extrinsic aids.’ " Id. (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007) ).
In arguing that the trial court erred in granting summary judgment on the State's claim, Benson admits that the State presented a prima facie case for bond forfeiture by producing evidence of the bail bond and judgment nisi. See Alvarez, 861 S.W.2d at 880–81 (). However, Benson contends that the trial court erred in granting summary judgment because he presented evidence sufficient to raise a fact issue as to each of the elements of the affirmative defense provided by Texas Code of Criminal Procedure article 22.13(a)(5)(A). According to Benson, this defense requires four elements: The principal, (1) who is charged with a misdemeanor, (2) is incarcerated (3) in any jurisdiction in the United States (4) at the time of or not later than the 180th day after the date of the principal's failure to appear in court. Benson asserts that he has raised a fact issue as to each of these four elements because he presented evidence that Whipple was charged with a misdemeanor in Travis County and was later incarcerated in Las Vegas within 180 days from the date he failed to appear in court.
In response, the State does not contend that Benson failed to raise a fact issue on the four elements of his article 22.13(a)(5) defense as identified by Benson. Instead, it argues that article 22.13(b) adds a required element to Benson's defense—that the principal be returned to the county of prosecution before the surety can be exonerated from liability. Specifically, the State points out that article 22.13(b) provides:
A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs of court, any reasonable and necessary costs incurred by a county to secure the return of the principal, and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal's incarceration.
Tex. Code Crim. Proc. art. 22.13(b). The State further argues that Benson did not raise an issue of fact concerning this element of his defense under article 22.13(a).
Because the State has not disputed the evidence supporting the other elements of Benson's defense, and because Benson has not alleged that he returned Whipple to Travis County, our resolution of this appeal turns on a single question of statutory construction: whether article 22.13(a)(5), read in conjunction with article 22.13(b), requires that the principal be returned to the county of prosecution in order for the defendant and surety to be exonerated from liability upon the forfeited bond. This appears to be an issue of first impression in Texas.
The plain language of article 22.13(a) and article 22.13(b) compels us to conclude that the requirements of subsection (b) are not intended to be included as elements of the cause of exoneration under article 22.13(a)(5). Article 22.13(a) lists five exclusive means of exoneration from bond forfeiture. See id. art. 22.13(a) (). Only one of these five causes—article 22.13(a)(3) —explicitly makes the principal's return a requirement. See id. art. 22.13(a)(3) (). If the legislature had intended return of the principal to be an element of the defense that subsection (a)(5)(A) provides, it could have included it in that subsection, as well. It certainly knew how to create such a requirement, as evidenced by article 22.13(a)(3), but chose not to do so here. See TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011) (); Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169, 175 (Tex.1980) ().
Rather than adding a requirement to exoneration under article 22.13(a)(5), article 22.13(b) assumes that exoneration has already occurred. Subsection (b) begins by stating that "a surety exonerated under Subdivision 5, Subsection (a)" remains responsible for court costs, reimbursement of the costs incurred by the county to secure return of the principal, and interest on the bond amount. Tex.Code Crim. Proc. art. 22.13(b). This language does not make exoneration conditional on payment of these amounts; instead, it assumes exoneration and adds these amounts as further obligations of the surety once exoneration has occurred. The State appears to take the position that return of the principal is a condition precedent to exoneration; however, it ignores the fact that payment...
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