Williams v. State, 04-83-00030-CV

• Decision Date: 11 April 1984
• Docket Number: No. 04-83-00030-CV,04-83-00030-CV
• Parties: Frances WILLIAMS, Principal, and Richard E. Langlois, Surety, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 717

670 S.W.2d 717

Frances WILLIAMS, Principal, and Richard E. Langlois Surety, Appellants, v. The STATE of Texas, Appellee.

No. 04-83-00030-CV.

Court of Appeals of Texas San Antonio.

April 11, 1984.

Richard Langlois, San Antonio, for appellants.

Sam Milsap, Jr., Barry Hitchings, Bexar County District Attorney's Office, San Antonio, for appellee.

Before ROBERTS, KLINGEMAN and MURRAY, JJ. ^*

OPINION

TRUMAN E. ROBERTS, Justice.

This is an appeal from an order of the District Court denying, in part, appellant's motion for remittitur of the principal's bond. We affirm.

I.

On March 20, 1979, the principal, Frances Williams, having been previously indicted for the felony offense of theft and incarcerated, was released from confinement pursuant to the execution of a bail bond in the amount of five thousand dollars. The appellant, Richard Langlois, was the surety upon said bond.

On April 11, 1979, the principal entered a plea of guilty to the above indictment and applied to the District Court for probation. A hearing on the application for probation was set for June 11, 1979. However, the principal failed to appear on June 11, 1979, and a bond forfeiture was declared at that time. Judgment nisi was entered on May 27, 1981, and an amended judgment nisi was entered on November 5, 1981.

Thereafter, on December 11, 1981, summary judgment was rendered in open court against the principal and the appellant, jointly and severally, in the amount of five thousand dollars. The judgment was signed on December 17, 1981.

On January 15, 1982, the appellant timely filed a motion for new trial. TEX.R.CIV.P. 329b(a). On March 2, 1982, the appellant's motion for new trial was overruled by operation of law. TEX.R.CIV.P. 329b(c). Then on April 1, 1982, the judgment became final and the District Court lost plenary power over the judgment. TEX.R.CIV.P. 329b(e).

Nevertheless, on May 25, 1982, the appellant filed a motion for remittitur pursuant to TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) (Vernon Supp.1984). That motion and accompanying sworn affidavit alleged that the appellant had located the principal, that the principal was confined in the Ohio Reformatory for women under the alias of Lillie Jackson, that the principal had been so confined since September 1981, that the appellant had expended money to locate the principal, and that the principal was being returned to custody, in part, as a result of money spent and information furnished by appellant. Under the authority of TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) (Vernon Supp.1984), the appellant sought remittitur of at least ninety-five percent of the five thousand dollar bond previously forfeited.

The following day, May 26, 1982, the principal was in fact placed in the Bexar County jail.

In response to the appellant's motion for remittitur, the State filed a plea to the jurisdiction. Therein, the State asserted that the District Court had no jurisdiction to grant a remittitur after judgment on the bond forfeiture had become final. According to the State, TEX. CONST. art. IV, § 11 and TEX.CODE CRIM.PROC.ANN. arts. 48.01 through 48.03 (Vernon 1979), afford the Governor exclusive power to remit bail bond forfeitures after final judgment. The State also asserted that the mandatory remittitur (of at least ninety-five percent) contained in TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) was unconstitutional.

On June 18, 1982, the District Court held a hearing on the appellant's motion for remittitur and the State's plea to the jurisdiction. The District Court: (1) denied the State's plea to the jurisdiction; (2) denied the appellant's request for ninety-five percent remittitur; (3) held that based on money spent and information supplied by the appellant, the principal had been returned to custody; (4) granted remittitur in the amount of eighty-five percent of the five thousand dollar bond forfeiture; (5) held TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) (Vernon Supp.1984), constitutional, notwithstanding the State's challenge that it violated TEX. CONST. art. IV, § 11 by authorizing remittitur after final judgment; and (6) held TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) (Vernon Supp.1984), unconstitutional insofar as it usurped a District Court's discretion to grant remittitur of less than ninety-five percent of the forfeited bond. From that judgment, the appellant perfected an appeal.

II.

The appellant's sole contention on appeal is that "the trial court abused its discretion in denying a remittitur to the surety [appellant] of at least ninety-five (95%) percent of the forfeited bond." [Explanation supplied.]

The issue, although simply stated, involves questions of statutory construction and constitutional interpretation. Stripped of excess verbiage, two primary issues are presented: (A) Does TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) (Vernon Supp.1984), violate TEX. CONST. art. IV, § 11 insofar as it purports to authorize remittitur after a final judgment on the forfeited bond; and (B) Does TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13(b) (Vernon Supp.1984), violate TEX. CONST. art. II, § 1 (i.e., separation of powers) insofar as it purports to mandate remittitur of at least ninety-five percent of the forfeited bond?

A.

Our resolution of the first issue necessarily involves an examination of the statutory framework governing bond forfeitures, exoneration and remittitur of bond forfeitures, and the case law interpreting those statutes.

Forfeiture of bail is governed, generally, by the provisions of TEX.CODE CRIM.PROC.ANN. art. 22.01 et seq., provides, inter alia, a procedure for: (1) a judicial determination of forfeiture; (2) notice to the principal and surety of the forfeiture; (3) trial of the merits, if necessary; (4) entry of final judgment; and (5) exoneration or remittitur of the liability of the principal and surety.

Of particular importance is TEX.CODE CRIM.PROC.ANN. art. 22.10 (Vernon Supp.1984), which provides:

When a forfeiture has been declared upon a bond, the court or clerk shall docket the case upon the scire facias or upon the civil docket, in the name of the State of Texas, as plaintiff, and the principal and his sureties, if any, as defendants; and the proceedings had therein shall be governed by the same rules governing other civil suits. (Emphasis added.)

In Blue v. State, 341 S.W.2d 917, 919 (Tex.Cr.App.1960), the Court, on State's Motion for Rehearing, construed TEX.CODE CRIM.PROC.ANN. art. 433, the direct predecessor to current TEX.CODE CRIM.PROC.ANN. art. 22.10, (Vernon Supp.1984). The Court there stated:

The proceedings relating to Bond Forfeiture are entirely statutory. Nicholas v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522.

A bond forfeiture is a criminal action, but after the entry of judgment nisi all the proceedings, unless otherwise provided, are governed by the same rules as govern in civil causes; that it, by the applicable Rules of Civil Procedure. See cases cited under Art. 433 Vernon's Ann.C.C.P., Note 2. (Emphasis in original.)

Of similar importance is TEX.CODE CRIM.PROC.ANN. art. 22.12a (Vernon Supp.1984), which provides:

After a judicial declaration of forfeiture is entered, the court may proceed with the trial required by Article 22.14 of this code. The court may exonerate the defendant and his sureties, if any, from liability on the forfeiture, remit the amount of the forfeiture, or set aside the forfeiture only as expressly provided by this chapter.

The following additional provisions are also germane to our disposition: (1) TEX.CODE CRIM.PROC.ANN. art. 22.13 (Vernon 1966) which provides for the exoneration of liability of a principal and surety in certain situations; (2) TEX.CODE CRIM.PROC.ANN. arts. 22.14 and 22.15 (Vernon 1966), which provide for final judgment after trial or by default; and (3) TEX.CODE CRIM.PROC.ANN. art. 22.16 (Vernon Supp.1984) which provides for remittitur to the principal and/or the surety in certain situations. ¹

In addition to the foregoing, TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13, entitled "Remittitur of Forfeited Bonds," provides that:

Sec. 13. (a) Prior to final judgment on any forfeiture of an appearance bond in a criminal case the attorney for the state may recommend to the court settlement for an amount less than that stated in the bond, or the court may upon its own motion approve such settlement.

(b) 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 of 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.

(c) The surety on appearance bonds in criminal cases shall be absolved of liability upon disposition of the case, and disposition as used herein shall mean a dismissal, acquittal, or finding of guilty on the charges made the basis of the bond.

On the surface, TEX.CODE CRIM.PROC.ANN. art. 22.12a and TEX.REV.CIV.STAT.ANN. art. 2372p-3, § 13, appear to conflict. However, these two Articles were both enacted in their current form ² in S.B. No. 727. See Acts 1981, 67th Leg., p. 875, ch. 312, Sec. 1 and 2, eff. Aug. 31, 1981. ³ The fact that both of these Articles were simultaneously enacted complicates our task in light of the Code Construction Act. TEX.REV.CIV.STAT.ANN. art. 5429b-2, §§ 1.01 et seq. ⁴

Furthermore, in addition to the foregoing statutes, TEX.CODE CRIM.PROC.ANN. art. 48.01 et seq., and TEX. CONST. art. IV, § 11 are relevant to our inquiry. For instance, TEX.CODE CRIM.PROC.ANN. art. 48.04 provides that "[t]he Governor shall have the power to remit forfeitures of bail bonds." TEX. CONST. art. IV, § 11 provides, in pertinent part, that:

In all criminal cases, except treason and impeachment, the...