Williams v. State
| Decision Date | 08 January 1986 |
| Docket Number | No. 652-84,652-84 |
| Citation | 707 S.W.2d 40 |
| Parties | Frances WILLIAMS, Principal & Richard E. Langlois, Surety, Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Richard E. Langlois, San Antonio, for appellants.
Sam D. Millsap, Jr., Dist. Atty. and Barry P. Hitchings & Lawrence A. Smith, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant petitions this Court to review the Court of Appeals' upholding of the trial court's ruling that Article 2372p-3, Sec. 13(b), V.A.C.S. violates Article II, Sec. 1 of the Texas Constitution, the separation of powers provision, because it requires the trial court to remit at least 95 percent of a forfeited bond. Williams v. State, 670 S.W.2d 717 (Tex.App.--San Antonio 1984). The Court of Appeals opined that the judiciary has "historically been given discretion over remittitur of forfeited bail bonds" and that "the Legislative usurpation of that discretion violates Article II, Sec. 1 of our constitution." We granted the petition to determine the constitutionality of Article 2372p-3, Sec. 13(b), V.A.C.S. Appellant-principal failed to appear at a scheduled hearing on June 14, 1979, and the trial court ordered her bond forfeited. 1 The judgment became final on March 2, 1982. On May 25, 1982, pursuant to Art. 2372p-3, Sec. 13(b), appellant-surety filed a motion for remittitur accompanied by a sworn affidavit satisfying the statutory requirements. After a hearing, the trial court denied appellant's request for 95 percent remittitur, finding that the statute was an unconstitutional usurpation of the district court's discretion to grant remittitur of less than 95 percent of the forfeited bond. The court remitted 85 percent. The Court of Appeals upheld that ruling.
A threshold issue which must be addressed is that of this Court's jurisdiction to entertain this appeal. While the instant case arises out of appellant's motion for remittitur, it "regards criminal matters." See Article V, Sec. 5 of the Texas Constitution. Prior decisions of this Court and the Supreme Court leave no doubt that a bond forfeiture proceeding is "criminal in nature." Brewer v. State, 576 S.W.2d 404 (Tex.Cr.App.1979); State ex. rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978); Tinker v. State, 561 S.W.2d 200 (Tex.Cr.App.1978); Blue v. State, 170 Tex.Cr.R. 449, 341 S.W.2d 917 (1960); Glenn v. State, 155 Tex.Cr.R. 498, 236 S.W.2d 809 (1951); General Bonding & Casualty Ins. Co. v. State, 73 Tex.Cr.R. 649, 165 S.W. 615 (1914); Jeter v. State, 86 Tex. 555, 26 S.W. 49 (1894). This appeal arises out of appellant's motion for remittitur filed after the judgment of the bond forfeiture became final. The motion comes out of, is related to, and, in essence, is the last part of the bond forfeiture proceeding wherein the surety seeks to recover some or all of the amount of the bond. See Art. 22.16, V.A.C.C.P. and Art. 2372p-3, Sec. 13(b), V.A.C.S. Because an action for remittitur arises out of the bond forfeiture proceedings and is directly related to those proceedings as the final step in the proceedings, the instant case, like those cases previously cited, is properly within our jurisdiction as a matter that is "criminal in nature." See general discussion in General Bonding & Casualty Ins. Co., supra; Article V, Sec. 5.
We turn now to the constitutional issue. In order to address the separation of powers' argument we must first explain the applicable statutory framework within which Art. 2372p-3, Sec. 13(b) works. Art. 22.01 et seq. V.A.C.C.P., contain the procedures and directives governing the forfeiture of bail, including notice requirements, trial on the merits and remittitur provisions. Articles 22.12a and 22.16, V.A.C.C.P., and Art. 2372p-3, Sec. 13, V.A.C.S., are the statutes whose relationship most concerns us. Art. 22.12a states:
POWERS OF THE COURT
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.
Art. 22.16 states:
THE COURT MAY REMIT
If, before final judgment is entered against the bail, the principal appears or is arrested and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond if the arrest or appearance is a direct result of money spent or information furnished by the surety or is because of the principal's initiative in submitting himself to the authority of the court, sheriff, or other peace officers.
Finally, Art. 2372p-3, Sec. 13, the civil statute at issue, reads:
REMITTITUR OF FORFEITED BONDS
(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 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.
(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.
As the Court of Appeals noted, Art. 22.12a, V.A.C.C.P., and Art. 2372p-3, Sec. 13(b), V.A.C.S., appear to conflict, as one permits the trial court discretion in remitting bond and the other commands the trial court to issue a 95 percent remittitur.
Both Article 22.12a and Art. 2372p-3, Sec. 13(b) were enacted in the same Senate bill at the same time as part of the amendments in the area of bond forfeiture procedures and bond provisions. See S.B. 727; Acts 1981, 67th Leg., p. 875, ch. 312, Secs. 1 and 4, eff. August 31, 1981. The legislative history offers little insight into the reasons for the change in Art. 2372p-3, Sec. 13(b). The bill analysis to S.B. 727 indicates a general desire to more strictly regulate the bonding business and the County Bail Bond Boards. However, after examining Sec. 12(a), 2 the predecessor to Sec. 13, and reading Art. 22.12a, Art. 22.16, and Art. 2372p-3, Sec. 13, together, keeping in mind the directives of the Code Construction Act, Art. 5429b-2, Secs. 1.01, et seq. V.A.C.S., the seeming conflict can be reconciled as the conflicting provisions refer to different time periods in forfeiture proceedings.
Art. 22.16 specifically refers to a time "before final judgment." Our review of Sec. 13(b) will show that it refers to a time after final judgment. Thus, the remittitur provisions can be harmonized.
Sec. 13 is divided into three subsections. Each subsection refers to a different and successive time period. Subsection (a) speaks to a time "prior to final judgment." Subsection (b), refers to a time "after a forfeiture." Reading subsection (b) as a whole, we interpret it to relate to a time after a final judgment on a forfeiture and within two years of a judgment nisi. 3 This interpretation is consistent with the provisions of its predecessor, Sec. 12(a), which specifically referred to a period of time after final judgment. Finally, subsection (c) addresses absolution of the surety's liability upon disposition, the last step in the process. Thus, each subsection of Sec. 13 essentially addresses a successive time frame of forfeiture proceedings, with the mandatory remittitur provision of Sec. 13(b) applying after final judgment.
Reading Art. 22.12a with Art. 22.16 shows that after a judicial declaration of forfeiture is entered and before a final judgment is entered, the court has discretionary remittitur power.
Art. 22.12a refers to a time "after a judicial declaration of forfeiture" which is defined in Art. 22.02. 4 The time after a judicial declaration of forfeiture is the beginning boundary for Art. 22.12a and the court's exercise of its discretionary power of remittitur. The outer boundary is limited by the provisions "expressly provided by this chapter," namely, by Art. 22.16. Art. 22.16 limits the trial court's remittitur of some amount of the bond to a time "before final judgment." Thus, a reading of Art. 22.12a with Art. 22.16 provides that after a judicial declaration of forfeiture is entered and before a final judgment is entered, the court may, in its discretion remit the whole or part of the amount.
Our interpretation of the bond forfeiture provisions harmonizes the statutes and gives substance to their workings. See Code Construction Act, Sec. 3.01, et seq. In sum, after a judicial declaration of forfeiture and before a final judgment is rendered, the trial court has discretion in remitting bond money. Art. 22.12a and Art. 22.16, V.A.C.C.P. After a final judgment has been rendered and within two years of a judgment nisi, Art. 2372p-3, Sec. 13(b) applies and the trial court must remit at least 95 percent of the bond amount when the statutory requirements are met. 5
While we realize that the wisdom and reasonableness of statutes is left to the realm of the Legislature, we note that the wisdom of these statutes is dubious at best. Apparently, the policy behind Sec. 13(b) is to encourage bondsmen to find and turn in missing defendants. If they do so within two years of the judgment nisi and after the final judgment, the Legislature has decided to...
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