Alvarez v. State

¶1concurring in part and dissenting in part.

¶2The majority today has correctly decided the application of summary judgment proof facts to bail bond forfeiture in general and specifically regarding notice to the principal. I therefore agree with the opinion and join that portion of the opinion. I disagree with the majority’s failure to address and dispose of appellant’s point of error regarding summary judgment proof of the calling of the principal’s name at the courthouse door and write in dissent on this issue.

¶3The appellant presents a material fact issue defeating summary judgment on the matter of calling the defendant’s name distinctly at the courthouse door. Until the Legislature changes it, the statute requires that the principal’s name be called at the courthouse door, period. Article 22.02 The State presented a statement from the bailiff that the name was called at the courthouse door. Appellant presented deposition testimony of the same bailiff stating that he in fact did not call the principal’s name outside the courthouse door, but instead in the hallway outside the courtroom door on the sixth floor of the courthouse.

¶4The court of appeals reasoned the State showed evidence of substantial compliance, citing Tocher v. State, 517 S.W.2d 299 (Tex.Cr.App.1975), Bennett v. State, 394 S.W.2d 804 (Tex.Cr.App.1965), and Deem v. State, 170 Tex.Crim. 564, 342 S.W.2d 758 (App.1961), all of which concluded for varying reasons that the calling of a principal’s name outside the courtroom as opposed to the courthouse door was in substantial compliance with Article 22.02. Appellant asserts that what is substantial compliance is a fact question and that the cases relied upon are distinguishable. I agree.

¶5.Viewing evidence in light of the non-moving party, appellant has raised a material fact issue entitling him to overcome summary judgment. Cases construed by this Court to date are all distinguishable in that we have not had before us this issue on summary judgment where the appellant has controverting evidence that the name was not called pursuant to statutory requirements. Substantial compliance has been held to mean name “called in the courthouse lobby within 12 feet of the outer door ... the place from which defendant’s name was called [being] within such reasonable distance of the court house door as under the circumstances to be in substantial compliance with the law requiring that his name be called at the door.” See Caldwell, et al. v. State, 136 Tex.Cr.R. 524, 126 S.W.2d 654, 656 (1939) and parallel cites.1

¶6*885Other cases have been decided against the principal by reasoning that where there is no showing otherwise, then compliance with the statute is presumed. See Swaim v. State, 498 S.W.2d 188, 191-92 (Tex.Cr.App.1973), where it was held that when the judgment nisi stated the principal’s name was called at the courthouse door, and such State’s evidence was not rebutted then a fact issue is not raised in appearance bond forfeiture.2 In short, Tocher, Bennett, Deem, and Swaimall conclude that where there is no evidence that the name was not called at the courthouse door, then a principal cannot discharge the burden of showing that fact so as to overcome the presumption that the recitation of this requirement in the judgment nisi was in accordance with Article 22.02.

¶7To date, cases have stopped short of distinguishing courthouse door from courtroom door and instead have supported the wording of the statute’s requirement of courthouse door. When the argument against the practice of calling the name at the courtroom door is raised, this Court’s opinions have construed substantial compliance to mean either: (1) reasonable distance to the courthouse door, as opposed to the courtroom door; or (2) lack of evidence to show otherwise.

¶8The fact issue raised in this summary judgment proceeding does not fit either category. The controversy reveals a judgment nisi showing evidence of compliance with calling the name at the courthouse door countered by deposition testimony of the same witness that the name was not called at the courthouse door, but at the courtroom door or hallway on the sixth floor of the courthouse.3 To ignore appellant’s proof and assert substantial compliance ignores the standard of review for summary judgment proceedings. “A judgment nisi is prima facie proof that the statutory requirements have been satisfied and the burden is on the defendant to affirmatively show otherwise. Once a prima facie case has been established, the defendant must then prove that one of the statutory requirements of the judgment nisi has not been satisfied.” At page 881. In summary judgment proceedings, “ ‘[ejvery reasonable inference from the evidence must be indulged in favor of the non-movants and any doubts resolved in their favor. See *886Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984).’ While the moving party may make their motion with or without supporting affidavits, the nonmoving party is consequently required to go beyond the pleadings and by their own affidavits or other evidence designate specific facts showing that there is a genuine issue for trial.... The nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” At pp. 881-882. A consequence of the majority opinion is to relegate the statutory requirement of “calling the name at the courthouse door” to a fiction. I fail to see how the facts herein may be harmonized with the reasoning of this Court’s explanation of substantial compliance as stated in the Caldwell opinion.

¶9The cases of Tocher, Bennett, and Deem, were not summary judgment cases and therefore had a different standard of review. In Tocher, 517 S.W.2d at 300-301, the bailiff testified that he did not remember calling the name and did not know if it was done, that another court officer often performed the duty of calling the names and could have done so in this case. The Court held that there was no evidence that the other officer did not call the names and therefore nothing to controvert the judgment nisi. It reasoned that unless it appears to the contrary, the recitals in the judgment nisi are presumed to be correct. Herein, it is undisputed that the name was not called at the courthouse door.

¶10In Deem, 342 S.W.2d at 759, and Bennett, 394 S.W.2d at 807, the records reflected that the principal’s name was called outside the door of the courtroom but lacked any evidence that the principal’s name was not called at the courthouse door. Therefore, in light of the judgment nisi and the lack of any proof that the principal’s name was not called at the courthouse door, the court held that the evidence was sufficient to show substantial compliance with Article 22.02.

¶11Viewing the evidence herein in favor of the nonmovants, I find it difficult to conclude anything other than that the bailiff’s deposition testimony raises a controverted material fact issue. In a summary judgment proceeding, the court’s role is not to rule on the evidence based upon which party is likely to prevail; it is to decide whether a material fact exists which would entitle the nonmovant to a trial on the merits. I would therefore hold that appellant’s evidence was sufficient to defeat summary judgment and sustain this ground for review also. See Montgomery v. Kennedy, supra at 311, and Celotex Corp. v. Catrett, 477 U.S. at 319, 106 S.Ct. at 2551. Because the majority does not do so, I respectfully dissent.

¶17OPINION ON STATE’S MOTION FOR REHEARING

¶18This appeal arose from a bond forfeiture. The trial judge granted summary judgment in favor of the State, and the surety, John Burns, appealed.1 In the court of appeals, appellant raised nine points of error which the court overruled, and the judgment was affirmed. Burns v. State, 814 S.W.2d 768 (Tex.App.—Houston [14th Dist.] 1991). This Court granted appellant’s petition for discretionary review on the two grounds presented therein, to-wit: (1) “whether the court of appeals used the proper standard of review by failing to review the evidence in the light most favorable to appellant[,]” and (2) “whether a bond may be forfeited due to a principal’s failure to appear in court on a certain date absent proof of notice to the principal that he is to appear in court on that date when the principal has previously been ordered to appear at a date after the date on which the judgment nisi issued.”

¶19On original submission, we found a substantial material fact regarding notice was presented which defeated summary judgment, and we therefore sustained appellant’s second ground for review. Alvarez & Burns v. State, at p. 883.2 In its motion for rehearing, the State presents three reasons why this Court erred in finding a substantial ma*887terial fact was presented which defeated summary judgment. The State alleges the opinion omits a material fact, omits and improperly recites the law applicable to summary judgment cases, and improperly applies the law to the facts.

¶20In order to address the State’s contentions we must first articulate the appropriate standard of review in a summary judgment case. Rule 166a of the Texas Rules of Civil Procedure addresses summary judgment, so we find it useful to consult decisions from our sister court on this standard. The purpose of the summary judgment rule is to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex.1962). The issue in a summary judgment proceeding, therefore, is whether there is a genuine issue of fact in the case. Id at 562. The party moving for summary judgment has the burden of showing that there is no such fact question and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc, 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, the court takes as true the evidence favorable to the non-moving party. Id. at 548-49. Every reasonable inference from the evidence must be indulged in favor of the non-movant, and any doubts resolved in its favor. Id. at 549. See also Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Hence, the applicable standard of review is to view the evidence in the light most favorable to the party opposing the summary judgment motion. Gaines v. Hamman, 358 S.W.2d at 562.3

¶21We now review the elements of the State’s cause of action in a bond forfeiture from which this summary judgment action arose. Bond forfeiture, although in the nature of a civil proceeding,4 is governed by the Code of Criminal Procedure. Article 22.02 directs the manner of taking a forfeiture and provides in pertinent part:

The name of the defendant shall be called distinctly at the courthouse door, and if the defendant does not appear within a reasonable time after such call is made, judgment shall be entered that the State of Texas recover of the defendant the amount of money in which he is bound, and of his sureties, if any, the amount of money in which they are respectively bound, which judgment shall state that the same will be made final, unless good cause be shown why the defendant did not appear.

¶22It is well-settled that the State’s proof in a bond forfeiture proceeding consists of the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. Tocher v. State, 517 S.W.2d 299, 301 (Tex.Crim.App.1975). The judgment nisi is prima facie proof that the statutory requirements of Art. 22.02 have been satisfied. Id.The burden then shifts to the defendant to affirmatively show otherwise. Id Indeed, “[t]he court will presume that the judgment nisi was taken in accordance with the statutory requirements, unless it affirmatively appear otherwise.” Id, citing Thompson v. State, 31 Tex. 166 (1868). In moving for summary judgment in an appearance bond forfeiture case, the State must therefore establish as a matter of law that there are no genuine issues of material fact as to any of the elements of the State’s cause of action, which are proved by the bond and the judgment nisi. Deckard v. State, 615 S.W.2d 717, 718 (Tex.Crim.App.1981) (panel opinion).

¶23With this review in mind, we now address the merits of the State’s motion for rehearing which raises an issue regarding its burden of proof in this case. In its motion, the State argues inter alia that in our opinion on original submission we improperly assigned the burden of proof in a summary judgment ac*888tion on a bond forfeiture. In that opinion we stated:

Therefore, the fact issues which must be proven in a motion for summary judgment on a bond forfeiture are: (1) a valid bond executed by the surety (Article 17.08(5)); (2) failure of a defendant bound by bail to appear in a court in which his case is pending when his personal appearance is required under the Code (Article 22.01); (3) the name of the defendant shall have been called distinctly at the courthouse door (Article 22.02); and (4) no valid reason for the principal not appearing (Article 22.13).

¶24Alvarez & Burns, at p. 881; see also Burns, 814 S.W.2d at 770. The State contends this fourth issue is not a fact which it must prove in a bond forfeiture proceeding. A plain reading of Art. 22.02, along with the Tocherdecision, reveals the State is correct.

¶25Article 22.02 directs that the defendant’s name be called “distinctly” at the courthouse door. The defendant is given a “reasonable time after such call is made” in which to appeal’. Upon his failure to do so, “judgment shall be entered” for the State on the bond forfeiture. Art. 22.02 (emphasis supplied). Thus, to be entitled to forfeiture of a bond the State need only show (1) a valid bond; (2) that the defendant’s name was distinctly called at the courthouse door; and (3) the defendant failed to appear within a reasonable time of that call. At the risk of being redundant, we reiterate that the burden of proof on the second and third prongs is satisfied by the judgment nisi.

¶26Article 22.02 further provides that this judgment will be made final unless “good cause be shown why the defendant did not appear.” This proviso operates like an affirmative defense in that the defendant admits he failed to appear but asserts he has good cause which excuses his failure to do so. This burden is appropriately placed on the defendant.

¶27The court of appeals, relying upon Lopez v. State, 678 S.W.2d 197 (Tex.App.—San Antonio 1984, no pet.), recognized that there are only four fact issues in a motion for summary judgment on a bond forfeiture. See Burns, 814 S.W.2d at 770. Those issues, per Art. 22.02, are: whether there is a valid bond; whether the' principal’s name was called at the courthouse door; whether the principal failed to appear; and whether the principal had a valid reason for not appearing. While there are four fact issues under Art. 22.02, the State bears only the burden of proof on three of them. As the State points out in its motion for rehearing, this Court “inexplicably” stated these issues as the State’s burden of proof in our opinion on original submission. See Alvarez & Burns, at p. 881-82. We therefore sustain the State’s ground for rehearing on this burden of proof issue.

¶28In his second ground for review in his petition, appellant contended the State failed to establish as a matter of law that the principal had notice of the court setting and “that the summary judgment evidence created a substantial and genuine issue of material fact concerning notice to the principal, thus precluding summary judgment.” On original submission we agreed with appellant and concluded “the amended affidavits of the principal’s attorney and the affidavit of the surety which present evidence that the principal did not receive notice of the setting raises (sic) material facts reflecting the contradiction and inconsistency of the principal’s lack of notice to defeat summary judgment.” Id, at p. 883. In its motion for rehearing, the State argues that we misapplied the law to the facts. The State asserts that the dispositive issue before this Court is whether the appellant, as non-movant, presented summary judgment evidence on every element of his defense, viz: his failure to appear was due to an uncontrollable circumstance pursuant to Art. 22.13, V.AC.C.P.5 We disagree with the State’s argument.

¶29*889In spite of statements in the court of appeals’ opinion6 and this Court’s opinion on original submission,7 appellant has not raised or argued an “uncontrollable circumstance” affirmative defense under Art. 22.13. The record reveals that citation issued on April 15, 1988, on the bond forfeiture. See Art. 22.10. Appellant filed an answer8 generally-denying the allegations and providing a laundry list of defenses, including “[appellant] is entitled to be exonerated under the provisions of Article 22.13 T.C.C.P.” The State then filed its motion for summary judgment. Appellant filed his reply in response to this motion asserting “the State’s entire motion for summary judgment boils down to the allegation ... that it is entitled to summary judgment ‘as matter (sic) of law by virtue of the fact that no good cause exists for the Defendan^Principal’s failure to appear.’ ” Appellant then asserts in his response that there are genuine issues of material fact which preclude the State’s entitlement to summary judgment, including lack of notice to appear. Nowhere in his response (as opposed to his answer) does appellant assert he is entitled to exoneration of liability on the bond forfeiture via Art. 22.13.

¶30In his brief in the court of appeals appellant contended, inter alia, that the trial court erred in granting summary judgment because a fact issue existed concerning notice to the principal to appear. Again, appellant did not argue he was entitled to exoneration pursuant to Art. 22.13.9 In his petition for discretionary review before this Court, appellant contended lack of notice was a fact issue in this case but not under Art. 22.13. Thus, the affirmative defense of an uncontrollable circumstance was not an issue before either the court of appeals or this Court, and any statements addressing that issue are dicta.

¶31The issue presented here is whether there is a material fact issue regarding notice which would preclude summary judgment. The State presented the bond and the judgment nisi to the trial court, thus making a prima facie case for the bond forfeiture. Appellant presented evidence concerning a lack of notice to appear and providing good cause for his failure to appear. See Art. 22.02. On original submission we held the evidence raised a material fact issue and the trial judge erred in granting summary judgment. In reviewing that holding on this motion for rehearing, we conclude our decision was correct.

¶32The State’s motion for rehearing is granted only to the extent that we corrected our statement of the State’s burden of proof in a *890bond forfeiture case. See pp. 881-82, supra. The other grounds are denied.