Blue v. State
| Decision Date | 16 November 1960 |
| Docket Number | No. 32385,32385 |
| Citation | 170 Tex.Crim. 449,341 S.W.2d 917 |
| Court | Texas Court of Criminal Appeals |
| Parties | Eddie BLUE et al., Appellants, v. STATE of Texas, Appellee. |
P. P. Ballowe, Dallas, for appellant.
Henry Wade, Criminal Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
This is an appeal by E. Colley Sullivan and M. E. Fields as sureties upon the bail bond of Eddie Blue from a final judgment of the County Criminal Court No. 2 of Dallas County upon a forfeiture of said bond.
Judgment nisi was entered on January 4, 1960, and provided that 'said judgment will be made final unless good cause be shown at the next term of this court why the defendant, Eddie Blue, did not appear.'
On March 4, 1960, citation was duly issued and served upon the appellants which summoned them 'to be and appear before the County Criminal Court No. 2 of Dallas County, Texas, at the Courthouse of said County, by filing a written answer at or before 10:00 o'clock A.M. of the Monday next after the expiration of twenty (20) days after the date of service of this citation, and show cause why the forfeiture of said bond should not be made final.'
Appellants filed in limine their motion to quash the citation in which they alleged that the process served upon them was unauthorized in law and would not support a judgment against them for the reason that it did not comply with the requisites or Articles 425 and 428 of Vernon's Ann.Code of Criminal Procedure.
On May 13, 1960, the court overruled appellant's motion to quash the citation and after a hearing on the merits rendered final judgment against appellants for the amount of the bond in the sum of $350.
Appellants' sole contention on appeal is that the citation served upon them is insufficient because it did not direct them to appear at the next term of court as provided by the statute governing bond forfeiture proceedings in criminal cases, Articles 424-440, Vernon's Ann.C.C.P., but commanded their appearance as provided in Rule 101 of the Texas Rules of Civil Procedure governing citations in civil cases which reads in part as follows:
'Rule 101. Requisites. The citation shall be styled 'The State of Texas' and shall be directed to the defendant and shall command him to appear by filing a written answer to the plaintiff's petition at or before 10 o'clock a. m. of the Monday next after the expiration of 20 days after the date of service thereof, stating the place of holding the court. * * *'
The State contends that although the bond forfeiture statutes, Articles 424-440, supra, provide that citation to the sureties shall notify them to appear at the next term of court, since the statutes further provide that the proceedings shall be governed by the same rules as in civil actions, the citation served upon appellants was properly drawn under Rule 101 of the Texas Rules of Civil Procedure.
With such contention we do not agree.
The Supreme Court, in adopting the Rules of Civil Procedure and amendments thereto, governing civil actions in the various courts of this State, under the rule making power vested in it by the Legislature, Acts 1939, 46th Leg., Reg.Session, p. 201 (Art. 1731a, Vernon's Ann.Civ.St.), provided in Rule 2, in part, as follows:
Rule 2 clearly excludes from the operation of the Rules of Civil Procedure the procedure in bond or recognizance forfeitures in criminal cases and expressly provides that the statutes in effect immediately prior to September 1, 1941, prescribing the rules of procedure in such cases, are continued in effect.
The statutes, Articles 424-440, supra, of the Vernon's Ann.Code of Criminal Procedure which prescribe the rules of procedure in bond forfeitures in criminal cases were in effect immediately prior to September 1, 1941. The statutes were not repealed by the adoption of the Rules of Civil Procedure or any amendments there-to. Being in effect immediately prior to September 1, 1941, under the exception contained in Rule 2, supra, such statutes govern the procedure in bond forfeitures in criminal cases and the issuance of citation therein.
In prescribing the manner of taking a bond forfeiture, Art. 425, supra, provides that the judgment nisi 'shall state that the same will be made final, unless good cause be shown at the...
To continue reading
Request your trial
-
Miller v. State
...provided in Article 22.14, V.A.C.C.P. Accordingly, resort to the civil law and rules of procedure is called for. Blue v. State, 171 Tex.Cr.R. 449, 341 S.W.2d 917, 919 (1960); Tinker v. State, 561 S.W.2d 200 (Tex.Cr.App.1978).2 All rules cited herein are Texas Rules of Civil Procedure.3 Entr......
-
Regalado v. State
...The citation or scire facias provided by the statute constitutes the State's pleadings in a bond forfeiture case. Blue v. State, 170 Tex.Crim. 449, 341 S.W.2d 917, 919 (1960); Pollock v. State, 164 Tex.Crim. 404, 299 S.W.2d 294, 296 (1956). In such a proceeding, the scire facias serves the ......
-
Bailout Bonding Co. v. State
...In other words, this provision applies only to the rules of civil procedure, not rules of substantive civil law. Blue v. State, 170 Tex.Crim. 449, 341 S.W.2d 917, 919 (1960) (on mot. for reh'g); Jeter, 26 S.W. at 49; see, e.g., Blue v. State, 171 Tex.Crim. 460, 351 S.W.2d 221, 222-23 (1961)......
-
Hernden v. State
...to bond forfeitures are entirely statutory and the courts have strictly construed the statutes governing them. Blue v. State, 170 Tex.Crim. 449, 341 S.W.2d 917, 919 (1960) (on denial of rehearing); Hubbard v. State, 814 S.W.2d 402, 403 (Tex.App.--Waco 1991, no pet). The State has the burden......