Hokr v. State, 51997

• Decision Date: 19 January 1977
• Docket Number: No. 51997,51997
• Citation: 545 S.W.2d 463
• Parties: James R. HOKR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 463

545 S.W.2d 463

James R. HOKR, Appellant, v. The STATE of Texas, Appellee.

No. 51997.

Court of Criminal Appeals of Texas.

Jan. 19, 1977.

Tom L. Zachry, Fort Worth, for appellant.

Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION ON STATE'S MOTION FOR REHEARING

DOUGLAS, Judge.

The prior opinion is withdrawn. On original submission, the Court held that there was insufficient evidence to support the judgment and that a charge must be made by having a valid complaint made before a bond is executed, otherwise, such a bond may not be forfeited. We agree with the State's contention that the disposition of the second ground contravenes the provisions of Articles 17.05 and 17.20, V.A.C.C.P., and, therefore, the State's motion for rehearing is granted. We will review the holdings of the original opinion.

The principal on the bond was charged with driving while intoxicated. The complaint and information were filed in the county court of Ellis County. While the bond itself is undated, the record reflects that the bond was executed on July 12, 1975. The complaint, information was warrant were not signed or filed in the cause until July 14, 1975.

Appellant contends that the bond is unenforceable because there was no warrant, complaint or information filed in the cause at the time the bond was executed. He relies on Mayberry v. State, 168 Tex.Cr.R. 537, 330 S.W.2d 203 (1959), which held:

'Where a complaint is filed in the county court, a bail bond taken before the information is filed, will not support a forfeiture. (Citations omitted).'

The express rationale of Mayberry and the cases upon which it relied was that a bail bond taken before the filing of the information would not bind the parties after its filing, just as a bond taken before return of an indictment would not be binding after its return because no jurisdiction attaches thereto. However, the underlying logic of those cases appeared to be that if a peace officer could not set bail in a felony case, then he could not do so in a misdemeanor case. When Mayberry was decided, Article 17.05, supra, permitted the bond to be 'taken from the defendant by a peace officer Who has a warrant of arrest or commitment.' (Emphasis added). Thus, a peace officer was not authorized to take bail unless he possessed a warrant of arrest or commitment that was validly issued by a court having jurisdiction over the offense. And, of course, the court could not assume jurisdiction unless a complaint or information had been filed in the cause.

Article 17.05 was amended effective August 30, 1971. It now provides:

'(a) bail bond is entered into either before a magistrate, upon an examination of a criminal accusation, or before a judge upon an application under habeas corpus; Or it is taken from the defendant by a peace officer if authorized by Article(s) 17.20, 17.21, or 17.22.' (Emphasis added).

The Legislature has eliminated the requirement that the peace officer have the accused in custody by reason of a warrant of arrest or commitment. Article 17.20, supra, was also amended in 1971 to provide:

'(t)he sheriff, or other peace officer, in cases of misdemeanor, may, whether during the term of the court or in vacation, where he has a defendant in custody, take of the defendant a bail bond.'

This amendment, enacted simultaneously with the Article 17.05 amendment, eliminates the requirement that the peace officer could take a bail bond only where the defendant was in custody 'under a warrant of commitment, warrant of arrest, or capias, or where the accused has been surrendered by his bail . . ..' These changes in the Code destroy the authority of Mayberry and provide that a peace officer may take bail in a misdemeanor case before the accused is formally charged.

Next, we must determine whether a peace officer may set the amount of bail in a misdemeanor case. This determination must hinge on the construction of Article 17.20 which authorizes a peace officer to 'take' a bond in a misdemeanor case. A good analysis of that Article is contained in Texas Attorney General's Opinion No. H--856 (1976):

'Other sections of the Code differentiate 'fixing' and 'taking' a bond--for example, article 17.22, dealing with certain felony cases in which a peace officer is allowed to take a bond in such an amount as he considers reasonable, if no amount has been fixed by the court or magistrate. Thus article 17.20, read by itself, would seem not to authorize the officer to set the amount of the bond, but rather to simply allow him to take a bond in an amount already set by some other person. The anomalous result would be that a peace officer could set the amount of the bond in certain felony cases, but not in any misdemeanor cases.

'Article 17.20, however, must be read in conjunction with other sections of the Code of Criminal Procedure. Article 17.15, prescribing rules for fixing the amount of bail, provides that, 'The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail. . . .' Article 3.03 defines the general term 'officers' as including peace officers. Thus, since article 17.20 authorizes the sheriff or other peace officer to Take bail in misdemeanor cases, article 17.15 compels the conclusion that such officer is also to regulate the amount of bail in such cases.'

We reach the same conclusion. We note, however, that an officer's authority to set the amount of bail should be limited to situations in which no magistrate is available, or in arrests pursuant to a warrant in which the proper magistrate (as specified in Article 15.16, V.A.C.C.P.) is unavailable. In this connection a person arrested when a magistrate is unavailable can be detained until the magistrate's normal working hours without violating the statutory requirement of an appearance 'immediately' or 'without unreasonable delay.' See Articles 14.06 and 15.17, V.A.C.C.P. See e.g. Grissam v. State, 403 S.W.2d 414 (Tex.Cr.App.1966). Under these circumstances an officer may set and take a bail bond. This harmonizes with Articles 17.08, Section 5, and 17.09, Section 1, supra, which have been amended to provide that a bond, once given, may bind the defendant throughout the criminal proceeding to appear before any magistrate or court when required. See Ex parte Johnston, 533 S.W.2d 349 (Tex.Cr.App.1976).

We now turn to appellant's contention that there was insufficient evidence to support the final judgment of forfeiture. The record reflects that the judgment nisi, while being filed in the cause, was never introduced into evidence. Only the bond was introduced. It has been well established that if the judgment nisi is not introduced into evidence, the proof is insufficient to support the final judgment of forfeiture. Fears v. State, 500 S.W.2d 815 (Tex.Cr.App.1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973). We will not adhere to that rule in the present cause. We hold that the trial court may hereafter judicially notice the judgment nisi in bond forfeiture proceedings.

A judgment nisi is not a final judgment, but rather is in the nature of an interlocutory judgment. See Article 22.02, V.A.C.C.P., and Hernden v. State, 505 S.W.2d 546 (Tex.Cr.App.1974). See also Jackson v. State, 422 S.W.2d 448 (Tex.Cr.App.1968). A judgment nisi will be made final unless good cause is shown why the accused did not appear. Article 22.17, V.A.C.C.P.

McCormick and Ray, Texas Law of Evidence, 2d Ed., Section 185, pages 202--03, sets out the principles governing the records of judicial proceedings in the same or ancillary cases:

'For reasons of convenience and easy verification trial courts usually take judicial notice of the record of proceedings in the same case. Thus it is unnecessary to offer formal proof of such matters as: The institution of a suit, the date of filing of original petition and other pleadings, the contents of the pleadings and previous orders or Judgments entered in the same cause. . . .' (Emphasis added) (footnotes omitted).

This Court recognized and applied that rule in Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App.1971). There, we stated:

"In criminal cases, the trial court may notice judicially its own records and proceedings, and all judgments entered by the court. Thus, the court may, and indeed should, take judicial notice of the fact that the defendant or a witness has previously been convicted by the court.' 23 Tex.Jur.2d, Evidence, Sec. 27, pp. 47--48.'

See also Rounsavall v. State, 480 S.W.2d 696 (Tex.Cr.App.1972); Cannon v. State, 479 S.W.2d 317 (Tex.Cr.App.1972); Huffman v. State, 479 S.W.2d 62 (Tex.Cr.App.1972); and Hardison v. State, 450 S.W.2d 638 (Tex.Cr.App.1970).

Thus, our holding today conforms with well-settled principles of judicial notice. The rule requiring introduction into evidence of the judgment nisi in bond forfeiture proceedings has no sound basis in policy or logic. That the rule reflects a long standing precedent should not preclude its abandonment. As was stated in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972) (Appellant's Motion for Rehearing), 'even constitutional principles do not emerge as full-blown eternal truths, thus remaining immutable and immune from the process of change.' When a rule fails the test of experience, policy or logic, it should be expressly overruled.

Fleming v. State, 502 S.W.2d 822 (Tex.Cr.App.1973), involved a probation revocation proceeding. Fleming contended on appeal that there was no evidence introduced at the hearing as to the terms of probation. Although conceding that the better practice would be to introduce both the judgment granting probation and the motion to revoke, we held that where the hearing is before the same court and judge who granted probation originally and set the terms thereof the court may take judicial knowledge of the probationary conditions which have been imposed.

We hold that a judgment nisi in bond...