Cardenas v. State

• Decision Date: 19 December 1984
• Docket Number: No. 04-82-00562-CV,04-82-00562-CV
• Citation: 683 S.W.2d 128
• Parties: Guillermo CARDENAS, Principal, Ray Alfaro d/b/a Alfaro Bail Bonds, Surety, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 128

683 S.W.2d 128

Guillermo CARDENAS, Principal, Ray Alfaro d/b/a Alfaro Bail Bonds, Surety, Appellants, v. The STATE of Texas, Appellee.

No. 04-82-00562-CV.

Court of Appeals of Texas San Antonio.

Dec. 19, 1984.

William Porter, Porter, Madalinski, Mayo, Salyer & Sims, San Antonio, for appellants.

Barry P. Hitchings, San Antonio, for appellee.

Before BUTTS, CANTU and DIAL, JJ.

OPINION

BUTTS, Justice.

This is an appeal from an order of the County Court, refusing to grant appellant-surety's bill of review wherein he sought relief from forfeiture of a bond because the sheriff's office misstated the defendant's name as "Guillermo" instead of "Geronimo" in the bond instruments. See TEX.CODE CRIM.PROC.ANN. art. 22.14 (Vernon 1966). Also encompassed in the bill of review was a request for remittitur of money paid on forfeiture of the bond by the surety. The final judgment reflects an amendment of the defendant's name. The court, however, denied remittitur. Only the denial of remittitur is questioned on this appeal.

The surety claims he is entitled to remittitur of at least 95 percent of the sum of $1,600.00, the amount he paid as the result of forfeiture. The claim is founded on TEX.REV.CIV.STAT.ANN. art. 2372p-3 § 13(b) (Vernon Supp.1984). The State argues the trial court no longer had jurisdiction of the bond forfeiture and the statute, supra, cannot be applied retroactively. The trial court expressly based its decision on the two bars to relief.

The relevant dates are:

April 10, 1979: Principal Cardenas failed to appear in court.

October 27, 1980: Judgment Nisi entered.

March 12, 1981: Hearing to enter final judgment of forfeiture.

March 23, 1981: Final judgment.

August 31, 1981: Section 13(b) of art. 2372p-3, supra, became effective.

December 22, 1981: Principal rearrested.

February 18, 1982: Surety filed "Motion for bill of review or in the alternative, entry of judgment nunc pro tunc."

In the motion for bill of review there appears a paragraph requesting remittitur of at least 95 percent pursuant to section 13(b). Only the attorney for the surety verified the motion; there was no affidavit of the surety. No complaint as to form was made at trial, and it is first raised on appeal. While we do not approve the form employed, we deem that complaint has been waived.

Section 13(b) provides:

After a forfeiture, if the defendant is incarcerated within two years of a judgment nisi, the bondsman shall be entitled to a remittitur of at least 95 percent if he presents a sworn affidavit stating that the defendant was returned to custody, in part, as a result of money spent or information furnished by the bondsman.

The remittitur shall be credited against an unpaid judgment of forfeiture or if the judgment has been paid, the treasurer shall refund at least 95 percent.

Section 12(a), the law governing this situation before the amendment, provided:

In each instance where a principal has been rearrested and returned to the county wherein his bond was made within 120 days after the date of the final judgment on the bond forfeiture and no appeal has been taken and provided that the principal was rearrested as a result of money spent or information furnished by the surety, the surety thereon may file a motion of remittance in the court commanding the appearance of the principal and the court shall order at least 50 percent of the amount paid on the judgment remitted. The payment shall be made by the county treasurer.

Acts 1973, 63rd Leg., p. 1525, Ch. 550. When there is a final judgment following judgment nisi in a bond forfeiture case, TEX.REV.CIV.STAT.ANN. art. 2372p-3 § 13(b) [before that, § 12(a) ] is the only provision which may be relied upon to reduce a surety's liability. Williams v. State, 670 S.W.2d 717, 722 (Tex.App.--San Antonio 1984, pet. granted). The principal must be incarcerated within two years of the judgment nisi and the other statutory requirements must be met. Id.

The trial court in the present case ruled that section 13(b), which gives the bondsman the right to move for remittitur within two years after judgment nisi, does not apply in this case because its provisions are not retroactive. Texas Constitution, art. I, § 16 provides that no bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made. In prohibiting retroactive laws, the Texas Constitution seeks to safeguard rights not guaranteed by other constitutional provisions such as the impairment of the obligation of contracts. Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-253 (1887). A statute is retroactive, in the constitutional sense, which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability in respect to transactions or consideration already past. It is one which affects acts or rights accruing before it came into force. Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex.Civ.App.--Fort Worth 1925, no writ). Unless vested rights are destroyed or impaired, the law is not invalid even though retroactive in operation. Paschal v. Perez, 7 Tex. 348 (1851). Commercial Insurance Co. of Newark, N.J. v. Lane, 480 S.W.2d 781, 783 (Tex.Civ.App.--Dallas 1972, writ ref'd n.r.e.).

It is obvious that...