Castaneda v. State

• Citation: 138 S.W.3d 304
• Decision Date: 02 July 2003
• Docket Number: No. 2015-01.,No. 2013-01.,No. 2014-01.,No. 2016-01.,No. 2012-01.,2012-01.,2013-01.,2014-01.,2015-01.,2016-01.
• Parties: Octavio CASTANEDA d/b/a O. Castaneda's Bail Bonds Company, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

138 S.W.3d 304

Octavio CASTANEDA d/b/a O. Castaneda's Bail Bonds Company, Appellant, v. The STATE of Texas.

No. 2012-01.

No. 2013-01.

No. 2014-01.

No. 2015-01.

No. 2016-01.

Court of Criminal Appeals of Texas, En banc.

July 2, 2003.

Opinion on Rehearing June 30, 2004.

Petition for review from the Corpus Christi Court of Appeals.

Barry P. Hitchings, San Antonio, for Appellant.

Theodore C. Hake, Asst. DA, Edinburg, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

JOHNSON, J., delivered the opinion of the court, joined by KELLER, P.J., MEYERS, WOMACK, KEASLER and HERVEY, J.J.

Appellant is a bail bondsman. He issued bail bonds for the principals in these five cases. Thereafter, the principals were detained by the United States Immigration and Naturalization Service (INS) and ultimately, some were deported. None of the principals appeared in court, in violation of the terms of the bonds. The trial court forfeited each of the bonds, and upon the state's motion, appellant was ordered to pay the full amounts of the bonds. Appellant appealed those rulings. The court of appeals affirmed the trial court. Castaneda v. State, 55 S.W.3d 729 (Tex.App.-Corpus Christi 2001). The court of appeals held that "where the bail bondsman assumes the risk that the principal will be deported, as here, he is liable on the bond." Id. at 730. Appellant sought discretionary review before this Court. We affirm in part and reverse in part.

The five principals are all Mexican nationals who were apparently in the United States illegally. Appellant posted bond for each of them. The face of four of the five bonds contained information, each with slightly differing wording, stating that it was noted that the principal is in violation of Code of Federal Regulations Title 8, § 315(3) & (4), and pursuant to a new law, would be taken into custody by the INS and transported to Los Fresnos, Texas. The fifth bond did not contain this explicit note on its face, but it is not disputed that appellant knew, when he issued the bonds, that all five principals were subject to detention by the INS.

In most instances, bondsmen are hired to obtain the release from custody of the principal. Such release may allow the principal to continue to work or attend school. Not infrequently, however, the posting of bond will have another use.

A principal who has charges pending in more than one jurisdiction may use bond as a way to exercise what little control may be available to a defendant in determining the order of disposition of the pending charges. If the principal wishes to first dispose of charges in jurisdiction A but is in the custody of jurisdiction B, posting bond in jurisdiction B will cause the principal's transfer to jurisdiction A. If, after transfer of the principal to jurisdiction A, the surety surrenders the bond in jurisdiction B, jurisdiction B will file a detainer for the principal in jurisdiction A. Thereafter, when the charges in jurisdiction A are resolved, the principal will be returned to jurisdiction B. If this is the intended chain of events, the surety has accomplished exactly what he was hired to do, even though the principal remained in custody during the entire sequence.

In the cases before us, appellant posted bond for five principals, all of whom had detainers from the INS. After bond was posted on each of the state charges, each principal was transferred into INS custody and thereafter failed to appear in state court on the appointed date. The trial court forfeited each bond, and the state filed a demand for judgment on each forfeiture. The trial court granted judgment nisi in each case, and appellant appealed.

The court of appeals affirmed the judgments, saying;

This group of cases involves, essentially, one issue. That is, "Is a bail bondsman liable on the bond when the principal is deported prior to the time the principal is set to appear in court?" We hold that where the bail bondsman assumes the risk that the principal will be deported, as here, he is liable on the bond.

Castaneda, 55 S.W.3d at 730. The issue decided by the court of appeals is, however, subject to a threshold inquiry: was the surety liable for the bond at all at the time the principal was set to appear in court? In one of these cases, the answer is "yes," but in four of these cases, the answer is that either the surety already had been legally exonerated on the bond under Tex.Code Crim. Proc., art. 17.16 before the principal failed to appear, or the trial court had allowed appellant to surrender the bond before final judgment.

I.

We note that we have authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. In Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990), we explained that "[o]nce an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute." Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act.¹ We therefore may, in our discretion, consider the threshold issue of whether appellant was liable on the bonds at the time the principals were set to appear in court.

Surrender of surety bond is covered by Article 17.16 of the Code of Criminal Procedure², which states Discharge of liability; surrender or incarceration of principal before forfeiture

(a) A surety may before forfeiture relieve himself of his undertaking by:

(1) surrendering the accused into the custody of the sheriff of the county where the prosecution is pending; or

(2) delivering to the sheriff of the county where the prosecution is pending an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state.

(b) For the purposes of Subsection (a)(2) of this article, the bond is discharged and the surety is absolved of liability on the bond on the sheriff's verification of the incarceration of the accused.

By its plain language, art. 17.16 releases a surety from liability on a bond when verification of the principal's incarceration in another jurisdiction is requested and the sheriff is able to verify that incarceration. When incarceration in the receiving jurisdiction is verified, the surety is automatically released from liability; neither further action by the surety nor approval by a court is required. There is no requirement that the surety notify the trial court, or anyone else, that the bond has been surrendered or to request that a detainer or arrest warrant be entered so that the principal is subject to return to the sending jurisdiction.

In these cases, the other jurisdiction was federal. It appears from the record that appellant was hired to post bond so that the principals would be transferred to federal custody. After the bonds were posted and his principals transferred into INS custody, appellant filed, for three of the principals, the forms requesting verification by the Hidalgo County sheriff. In these three cases, the sheriff verified that the principal was in INS custody and provided a verification form. In these three cases, appellant then filed an Affidavit of Bondsman for Surrender of Principal, with the verification form attached, and requested the trial judge to issue a warrant for the arrest of the principal. Such requests are not required to release the surety from liability under the plain language of art. 17.16, but appear to have been courtesy notification to the trial court that the principal was no longer in the custody of Hidalgo County. However, in each case, the trial court refused to issue the warrant.

In due course, each case was called for trial, and in each case, the principal failed to appear. Even though, by operation of law, appellant had been released from liability on the three bonds, the state requested, and the trial court granted, a judgment nisi against appellant and each principal. Because appellant's liability on those three bonds had been exonerated "on the sheriff's verification of the incarceration of the accused," the trial court was without authority to find appellant liable for those bonds. Accordingly, we reverse and remand to the trial court for entry of a judgment in favor of appellant in those three cases, specifically, Oscar Oviedo Gutierrez (petition number 2012-01), Mario Ortiz Hurtado (2013-01), and Carlos Javier Ramos Medrano (2015-01).

II.

In the case of Julio Quilantan Padron (2014-01), the record shows that no sheriff's verification was filed before his failure to appear on November 17, 1998. The day of the failure to appear, appellant filed an affidavit of surrender with the trial judge. Two days later, the trial court signed an order that appears to accept appellant's surrender of the bond. The docket sheet on that day shows a notation "crt aprvd bond surrender (Castaneda Bail Bonds)

def at INS (Bayview) awaiting deportation

order signed[.]"

This notation is followed by what appears to be the initials of the trial judge.

The docket sheet further reveals that Quilantan Padron was rearrested on June 12, 1999, for driving while intoxicated, and that the original charge was recalled on June 15. At that setting, both court and state files were noted as missing, although a subsequent notation indicated that the court file had been found. The trial court "set PR bond of $2500.00" and reset for June 29. This entry also bears the initials of the trial judge. Thus it appears that the trial court believed that there was no outstanding bond on the principal and ordered a new, personal bond.

On June 29, the file was again missing, and the case was reset until July 9. On July 9, the case was called without response. It was called again on July 13, again with no...