Lyles v. State

• Decision Date: 03 February 1993
• Docket Number: No. 1302-91,1302-91
• Citation: 850 S.W.2d 497
• Parties: Vernon P. LYLES, et al., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 497

850 S.W.2d 497

Vernon P. LYLES, et al., Appellant, v. The STATE of Texas, Appellee.

No. 1302-91.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 3, 1993.

Carolyn Findley Price, Arlington, G.P. (Pat) Monks, Houston, for appellant.

Jimmie McCullough, County Atty., Franklin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

This is a criminal bail bond forfeiture case. The State petitioned this Court for review on two grounds, one of which we granted in order to determine the constitutionality of TEX. CODE CRIM.PROC.ANN. Art. 22.16(a). Although we find 22.16(a) unconstitutional because it utilizes the provisions of TEX. CODE CRIM.PROC.ANN. Art. 22.16(c), we will reverse the Court of Appeals on other grounds.

Initially, we will address whether subsection (a) is constitutional since it was a ground on which we initially granted review. However, the ultimate disposition of this case will hinge on our prior decision in Makeig v. State, 830 S.W.2d 956 (Tex.Crim.App.1992), adopting the decision and reasoning of the Court of Appeals in Makeig v. State, 802 S.W.2d 59 (Tex.App.--Amarillo 1990). We will therefore address Article 22.16(a) and then resolve the instant case.

This matter arose out of a bond forfeiture in the Robertson County Court. Vernon P. Lyles, a professional bondsman, was the surety on a $1500 bond with Thomas Earl Marks as its defendant-principal. Marks failed to appear in court on December 7, 1989, on a misdemeanor property offense and judgment nisi was entered. Marks was rearrested on December 16 and placed in the Robertson County jail. On February 7, 1990, final judgment was entered by the trial court. Respondent filed his motion to remit the full amount of the bond on March 6, 1990, along with a motion to vacate or modify the final judgment entered against the bond. The trial court denied his motions.

Respondent Lyles appealed to the Tenth Court of Appeals raising six points of error. The Court of Appeals sustained the three points which addressed remittitur of the bond and therefore reversed the judgment of the trial court in a published opinion. Lyles v. State, 814 S.W.2d 411 (Tex.App.--Waco 1991). The question raised in the Court of Appeals and in this Court is the constitutionality of Art. 22.16(a).

Art. 22.16(a) provides in pertinent part:

(a) After forfeiture of a bond and before the expiration of the time limits set by Subsection (c) of this article, the court shall, on written motion, remit to the surety the amount of the bond after deducting the costs of court, any reasonable costs to the county for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (e) of this article if:

(1) the principal is incarcerated in the county in which the prosecution is pending;

. . . . .

Art. 22.16(c) provides:

(c) A final judgment may be entered against a bond not earlier than:

(1) nine months after the date the forfeiture was entered, if the offense for which the bond was given is a misdemeanor; or

(2) 18 months after the date the forfeiture was entered, if the offense for which the bond was given is a felony.

Article 22.16(a) is at issue because it is dependent upon timeframes provided for in 22.16(c). Article 22.16(c) has been held unconstitutional by this Court in State v. Matyastik, 811 S.W.2d 102 (Tex.Cr.App.1991) and Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex.Cr.App.1990).

Article 22.16(c) was first addressed by this Court in Armadillo Bail Bonds v. State, 802 S.W.2d at 237. Our analysis in Armadillo Bail Bonds began by recognizing that a violation of the separation of powers provision of the State Constitution occurs when one branch of government unduly interferes with another branch's exercise of its constitutionally assigned powers. Id. at 239. Since the ability to enter final judgments is a "core power" of the judiciary, we found that the legislature unduly interfered with the exercise of this power by passing a statute which suspended the entrance of a final judgment for up to a year and a half. Id. at 241. Thus, the statute was found to be a violation of the separation of powers provision since it allowed the legislature to usurp a judicial function. Id.

In State v. Matyastik, this Court applied the reasoning announced in Armadillo Bail Bonds to find section (c)(1) of the statute unconstitutional. State v. Matyastik, 811 S.W.2d at 102. Where section (c)(2) addresses felonies, section (c)(1) of the statute prohibits the court from entering final judgment in a misdemeanor case until nine months after forfeiture. Because of the similar time requirement, (c)(1) was also found to be a legislatively imposed statutory restraint on a trial court's ability to enter final judgments. Id. at 104. The reasoning in Armadillo Bail Bonds was therefore extended to also hold section (c)(1) unconstitutional as a violation of the separation of powers provision of the State Constitution. Id.

Having found 22.16(c) unconstitutional ¹, this court then considered in Matyastik whether Art. 22.16(a) also interfered with the court's exercise of the judicial function. State v. Matyastik, 811 S.W.2d at 104. This issue arose because Article 22.16(a) refers to 22.16(c) in the body of the statute. Art. 22.16(a) provides in pertinent part:

After forfeiture of a bond and before the expiration of the time limits set by Subsection (c) of this article, the court shall ... (emphasis added).

In our analysis in Matyastik, we were careful to note that if one part of a statute is held unconstitutional, "the remainder of the statute must be sustained if it is complete in itself and capable of being executed in accordance with the intent wholly independent of that which has been rejected." Matyastik, 811 S.W.2d at 104, quoting Tussey v. State, 494 S.W.2d 866, 870 (Tex.Cr.App.1973). However, this Court found that subsection (a) is contingent upon the time limitations set forth in subsection (c). Matyastik, 811 S.W.2d at 104. Therefore, we held that the portion of subsection (a) that utilizes subsection (c) is invalid under Article 2, Section 1 of the Texas Constitution since subsection (a) cannot be executed or have any effect without utilizing the provisions of subsection (c). Id.

This Court is now asked to determine whether subsection (a) is to be read without reference to subsection (c) ², or, alternatively, find the entire subsection invalid. We believe that the latter is the correct interpretation. As was noted in Matyastik, subsection (a) is contingent upon the time limitations established in subsection (c). Subsection (a) is dependent upon subsection (c) to establish the timeframes for mandatory remittitur. Without these deadlines, remittitur of a forfeited bond would be mandatory at any time after the forfeiture because there is no "judgment" provision in subsection (a). Consequently, subsection (a) cannot be executed or have any effect without the invalid provisions. Matyastik, 811 S.W.2d at 104. Subsection (a) is thus void. We therefore hold that mandatory remittitur provisions of 22.16(a) are no longer valid. Remittitur may instead be done at the trial court's discretion at anytime before entry of a final judgment. ³ TEX.CODE CRIM.PROC.ANN. Art. 22.16(d).

Additional support for this holding is found in Article 22.16(d). Article 22.16(d) permits a trial court, in its discretion, to remit a bond before the entry of a final judgment. If subsection (a) is to be read without reference to the time limitations of subsection (c), the trial court would no longer have this discretion. The trial court would have to remit the amount of the bond upon written motion of the surety. Such a reading would render subsection (d) impotent. When construing statutes that appear to be in conflict, the two should be harmonized where possible. TEX.GOV'T CODE ANN. § 311.025(b); Ex parte Choice, 828 S.W.2d 5, 7 (Tex.Cr.App.1992); Lindsey v. State, 760 S.W.2d 649, 654 (Tex.Cr.App.1988); Stanfield v. State, 718 S.W.2d 734, 736 (Tex.Cr.App.1986). It would therefore be improper to interpret 22.16(a) in a manner which would remove the discretion given to the trial court in Article 22.16(d).

Furthermore, a most important distinction can be made between 22.16(a) and 22.16(c) which demonstrates that discretionary remittitur should continue. Contrary to the position advocated by the dissents, subsection (a) does not have a provision for any kind of judgment to be entered. Final judgment under subsection (a) can only be entered via the reference to subsection (c), an unconstitutional provision. Alternatively, 22.16(d), even if read without reference to subsection (c), provides for entry of final judgment. Given this distinction, it is obvious that 22.16(d) should survive even though 22.16(a) is invalid.

Article 22.16(c) violates the separation of powers provision of the Texas Constitution because it imposes time limits which prevent a court from entering a final judgment. Although 22.16(a) does not provide for entry of a judgment of any kind, a reading of 22.16(a) to provide for mandatory remittitur at anytime prior to final judgement would violate the separation of powers provision. Such a reading would statutorily mandate a trial court to remit a bond at anytime prior to entry of a final judgment, thereby legislatively removing a trial court's discretion. However, enforcement of 22.16(d) does not violate the separation of powers provision since it leaves discretion in the trial court to remit a forfeited bond at anytime prior to entry of a final judgment.

We pause here to answer Judge Campbell's concerns. He argues in his dissent that if 22.16(a) is invalid because of the reference to Article 22.16(c), 22.16(d) must also be invalid because it too utilizes 22.16(c). We would distinguish 22.16(d) by pointing out that, unlike 22.16(a), 22.16(d) is a discretionary provision....