Opinion
No. 05-14-00928-CV
03-29-2016
MILENE COOPER, D/B/A ACE BAIL BONDS, Appellant v. MARK HUNT, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F12-33267-Y
MEMORANDUM OPINION ON REHEARING
Before Justices Lang-Miers, Fillmore, and Schenck
Opinion by Justice Fillmore
We withdraw our opinion and vacate our judgment of December 28, 2015, and we substitute this opinion in its place. Appellant Milene Cooper, doing business as Ace Bail Bonds, the surety on a bail bond for the principal, appellee Mark Hunt, appeals the trial court's order that Cooper return the bail bond premium paid by Hunt. In two issues, Cooper contends (1) she was not served with citation in Hunt's contest of his surrender, and (2) the trial court erred by finding Cooper's surrender of Hunt was without reasonable cause. We affirm the trial court's judgment.
Cooper is an agent of Financial Casualty Insurance Company. Because the relationship between Cooper and Financial Casualty Insurance Company does not affect our decision, we refer in this opinion only to Cooper, the actual party to this appeal.
Background
Our recitation of procedural background facts is constrained by a limited record on appeal.
Cooper posted bail bonds in six criminal cases filed in Dallas County, Texas, against Hunt. In one of those cases, cause number F13-33450-Y in which Hunt was charged with unlawful possession of a firearm by a felon, Cooper filed an August 12, 2013 affidavit under article 17.19 of the code of criminal procedure for the surrender of Hunt. Based on that affidavit, the trial court issued an arrest warrant, and Hunt was arrested and jailed in Dallas County on August 12, 2013. On August 13, 2013, Cooper filed affidavits under article 17.16 of the code of criminal procedure seeking discharge of the surety's liability on bail bonds in the five other cases pending against Hunt on which Cooper was the agent for the surety, including cause number F12-33267-Y, the case underlying this appeal in which Hunt was charged with possession with intent to deliver a controlled substance. In her article 17.16 affidavit to go off bond, Cooper attested Hunt was incarcerated in Dallas County as a result of Cooper's article 17.19 affidavit on the charge of unlawful possession of a firearm by a felon. With regard to the article 17.16 affidavit filed by Cooper in cause number F12-33267-Y, a Dallas Count magistrate signed an order on August 13, 2003, discharging Cooper, as the surety's agent, of all liability on the bond.
A bail bond is "a written undertaking entered into by the defendant and the defendant's sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation . . . ." TEX. CODE CRIM. PROC. ANN. art. 17.02 (West 2015).
Article 17.19 provides in pertinent part:
(a) Any surety, desiring to surrender his principal and after notifying the principal's attorney, if the principal is represented by an attorney, in a manner provided by Rule 21a, Texas Rules of Civil Procedure, of the surety's intention to surrender the principal, may file an affidavit of such intention before the court or magistrate before which the prosecution is pending. . . .TEX. CODE CRIM. PROC. ANN. art. 17.19(a), (b) (West 2015).
(b) In a prosecution pending before a court, if the court finds that there is cause for the surety to surrender the surety's principal, the court shall issue a capias for the principal. . . .
Article 17.16 provides in pertinent part:
(a) A surety may before forfeiture relieve the surety of the surety's undertaking by:
* * *
(2) delivering to the sheriff of the county in which the prosecution is pending and to the office of the prosecuting attorney an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state.
(b) On receipt of an affidavit described by Subsection (a)(2), the sheriff of the county in which the prosecution is pending shall verify whether the accused is incarcerated as stated in the affidavit. If the sheriff verifies the statement in the affidavit, the sheriff shall notify the magistrate before which the prosecution is pending of the verification.
* * *
(d) A capias for the arrest of the accused is not required if:
(1) a warrant has been issued for the accused's arrest and remains outstanding; or
(2) the issuance of a capias would otherwise be unnecessary for the purpose of taking the accused into custody.
(e) For the purposes of Subsection (a)(2) of this article, the bond is discharged and the surety is absolved of liability on the bond on the verification of the incarceration of the accused. . . .TEX. CODE CRIM. PROC. ANN. art. 17.16 (West 2015). Cooper's "Motion and Affidavit of Surety for Discharge of Liability and Surrender of Principal Before Forfeiture" pursuant to article 17.16 states Hunt was incarcerated in Dallas County at the time of filing that motion and contains a "Verification of Incarceration" signed by a member of the Dallas County Sheriff's Department.
Pursuant to section 1704.207 of the occupations code, Hunt filed a contest of Cooper's surrender of him in the trial court. Section 1704.207(a) of the occupations code provides that a person executing a bail bond may surrender the principal for whom the bond is executed by:
(1) if the principal is represented by an attorney, notifying the principal's attorney of the person's intention to surrender the principal in a manner provided by Rule 21a, Texas Rules of Civil Procedure; and
(2) filing an affidavit with the court or magistrate before which the prosecution is pending that states:
TEX. OCC. CODE ANN. § 1704.207(a) (West 2012). Section 1704.207(b) provides:(A) the person's intention to surrender the principal;
(B) the court and cause number of the case;
(C) the name of the defendant;
(D) the offense for which the defendant is charged;
(E) the date of the bond;
(F) the reason for the intended surrender; and
(G) that notice of the person's intention to surrender the principal has been provided as required by this subsection.
(b) If a principal is surrendered under Subsection (a) and the principal or an attorney representing the state or an accused in the cause determines that a reason for surrender was without reasonable cause, the person may contest the surrender in the court that authorized the surrender.Id. § 1704.207(b). Relying on section 1704.207(c), Hunt sought return of the premiums he paid Cooper to post the bail bonds. Section 1704.207(c) provides:
(c) If the court finds that a contested surrender was without a reasonable cause, the court may require the person who executed the bond to refund to the principal all or part of the fees paid for execution of the bond. The court shall identify the fees paid to induce the person to execute the bond regardless of whether the fees are described as fees for execution of the bond.Id. § 1704.207(c).
The general substance of section 1704.207 of the occupations code was first enacted in 1973 as Article 2372p-3, § 13 of the Texas Revised Civil Statutes. See Act of May 18, 1973, 63rd Leg., R.S., ch. 550, §13, 1973 Tex. Gen. Laws 1520, 1526 (effective Aug. 27, 1973), which provided:
(a) No person who executes a bail bond as a surety for a principal may surrender the principal unless he forthwith executes an affidavit to be filed with the clerk of the court stating:
(1) the date the bond was made;
(2) the fee paid for the bond; and
(3) the reason for the surrender.
(b) If the reason for surrender is deemed without reasonable cause by the principal, any agent of the sheriff, or any attorney representing the state or any accused in the proceeding, that person may bring the matter to the attention of the court.TEX. REV. CIV. STAT. ANN. art. 2372p-3, § 13.
(c) If the court determines that the person who surrendered the principal did so without reasonable cause, the court in its discretion may require that all or a part of the fees paid as a condition for making the bail bond shall be returned to the principal. . . .
In 1999, article 2372p-3 was repealed and was recodified as section 1704.207 of the occupations code. See Act of May 10, 1999, 76th Leg., R.S., ch. 388, §1704.207, 1999 Tex. Gen. Laws 1431, 2286-287 (effective Sept. 1, 1999).
Following an evidentiary hearing on Hunt's contest of his surrender, the trial court signed an October 16, 2013 order, in which the trial court found Cooper's surrender of Hunt was unreasonable. The trial court ordered Cooper to present a receipt of the premium she received in cause number F12-33267-Y, as well as the other five cases for which Cooper served as the agent for the surety for principal Hunt. Pursuant to section 1704.207(c), the trial court ordered Cooper to return to Hunt the premiums paid to Cooper once the respective premiums charged were determined. Cooper was also ordered to immediately return a motorcycle Hunt had posted as additional collateral to obtain the bail bonds.
The appellate record contains no reporter's record, and, therefore, no transcription of, or copies of exhibits admitted at, that evidentiary hearing.
Cooper filed a motion to reconsider and motion for new trial. By order signed December 3, 2013, the trial court denied Cooper's motion to reconsider and motion for new trial. In the December 3, 2013 order, Cooper was ordered to refund the $4,025.00 premium paid by Hunt for the bail bond in cause number F12-33267-Y. Cooper filed this appeal of the trial court's December 3, 2013 order.
The trial court's December 3, 2013 order references Cooper's motion to reconsider and motion for new trial and Hunt's response. Those pleadings are not in this appellate record.
Subsequent to the filing of this appeal, the State dismissed the charge against Hunt in cause number F12-33267-Y, and the trial court's order requiring that Cooper refund Hunt's bail bond premium became final. See Maya v. State, 126 S.W.3d 581, 582 n.1 (Tex. App.—Texarkana 2004, no pet.) (judgment nisi, a declaration of the forfeiture of a bail bond, is necessary to instigation of a civil bond forfeiture action but does not "result in an immediate forfeiture judgment on which the State may seek immediate collection"); Rosas v. State, 958 S.W.2d 852, 853 (Tex. App.—Amarillo 1997, no pet.) (final judgment was rendered in bail bond forfeiture matter on day trial court signed order dismissing accused from cause and disposing of all parties and issues, and prior judgment against surety, decreeing his liability on bond, became final and appealable on that day); see also TEX. R. APP. P. 27.1(a) (in civil case, prematurely filed notice of appeal is effective and deemed filed on day of, but after, event that begins the period for perfecting the appeal).
Service of Citation on Cooper
The trial court's order for Cooper's refund of Hunt's bail bond premium is ancillary to the criminal proceeding against Hunt for which the bail bond was executed. See TEX. CODE CRIM. PROC. ANN. art. 44.42 (West 2006) (appeal may be taken by defendant from every final judgment rendered upon a personal bond, bail bond or bond taken for the prevention or suppression of offenses, where such judgment is for twenty dollars or more, exclusive of costs, but not otherwise); Whitehead v. State, 625 S.W.2d 336, 337 (Tex. Crim. App. [Panel Op.] 1981) (appeal may be taken from every final judgment over twenty dollars forfeiting an appearance bond; appeals of final judgments forfeiting bonds shall be regulated by the same rules that govern civil actions where an appeal is taken); City of Dallas v. Smith, 716 S.W.2d 114, 116, 117 (Tex. App.—Dallas 1986, no writ) (entry of final judgment of bond forfeiture is incidental to criminal case, constituting part of the criminal case; both Texas Supreme Court and Texas Court of Criminal Appeals "hold that the forfeiture of bail bonds in criminal cases is a mere incident to the criminal case") (quoting Willis v. State, 68 Tex. Crim. R. 292, 293, 150 S.W. 905, 905 (1912)). In her appellate brief, Cooper acknowledges Hunt's challenge to Cooper's reasonable cause for his surrender was to be resolved in the same court in which the criminal action against Hunt was pending. See Robbins v. Roberts, 833 S.W.2d 619, 622 (Tex. App.—Amarillo 1992, no pet.) (jurisdiction and venue to determine the allegation that the surrender of the principal was without reasonable cause is vested in the court having jurisdiction of the criminal case). However, in her first issue, Cooper asserts she had to be served by Hunt with citation because Hunt's challenge constitutes a separate civil action.
Here, Cooper appeared and responded to Hunt's challenge in the trial court. "A defendant who enters an appearance by filing an answer is before the court for all purposes." West v. City Nat'l Bank of Birmingham, 597 S.W.2d 461, 464 (Tex. Civ. App.—Beaumont 1980, no writ). By filing an answer, a defendant submits himself to the jurisdiction of the court. Id.; see also Warner v. Irving Lumber Co., 584 S.W.2d 893, 894 (Tex. Civ. App.—Dallas 1979, no writ) (rule is well settled that defendant who has appeared in main case is before court for all purposes).
Having appeared and responded to Hunt's challenge to Cooper's reasonable cause for his surrender, Hunt was before the trial court for all purposes. We resolve Cooper's first issue against her.
Reasonable Cause for Surrender of Principal
In her second issue, Cooper contends the trial court erred by ordering Cooper to return the bail bond premium paid by Hunt in cause number F12-33267-Y because there was reasonable cause for her surrender of Hunt. Cooper asserts it is "solely the inquiry into the reasonableness of the cause for the surrender that gives rise to a contest action against the surety," and Cooper contends her article 17.16 affidavit "plainly states [Hunt] had violated the terms and conditions of his bond."
Cooper relied on her article 17.19 affidavit filed in cause number F13-33450-Y and Hunt's arrest on August 12, 2013 pursuant to that affidavit to support her August 13, 2013 article 17.16 affidavit filed in F12-33267-Y. Following a September 20, 2013 evidentiary hearing on Hunt's contest of Cooper's surrender of him, the trial court found Cooper's surrender of Hunt was unreasonable for numerous reasons that included the following:
a. Cooper's [Affidavit to Go Off Bond] stated [Hunt] had violated bond conditions. He did not. [Hunt] attended all his court dates in the above cases and, indeed, on the date the warrant issued, he appeared at Cooper's office and made his regular premium payment. The text message [Hunt] sent to Cooper did not show an intent to abscond and it was unreasonable for Cooper to so conclude.
b. Cooper notified [Hunt]'s counsel, Heath Hyde, by fax prior to submitting the affidavit. Under Occupations Code § 1704.207(l), incorporating Rule 21a, Rules of Civil Procedure, Hyde was allowed 3 working days to respond. Cooper therefore improperly obtained the warrant on the day of filing.
c. Cooper violated Rule B8, Dallas County Bail Bond Rules by not submitting the affidavit through a Texas licensed attorney. Reggie Spellman, who submitted the affidavit, was not a licensed private investigator. Accordingly, Spellman violated section 1702.3863, Occupations Code.
Section 1702.3863 states a person commits an offense if the person contracts with or is employed by a bail bond surety to secure appearance of a person who has failed to appear or "bail jumped" under section 38.10 of the penal code unless the person is a peace officer, an individual endorsed or licensed as a private investigator or manager of a licensed investigations company, or a commissioned security officer employed by a licensed guard company. TEX. OCC. CODE ANN. § 1702.3863(a) (West 2012).
The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record. TEX. R. APP. P. 34.1. Generally, the appellant bears the burden to present a sufficient record to show error requiring reversal. See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)). Cooper failed to cause a reporter's record of the September 20, 2013 evidentiary hearing to be filed. When there is no reporter's record, we indulge every presumption in favor of the trial court's findings. See Bryant v. United Shortline Inc. v. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998). We must therefore presume that the September 20, 2013 proceeding was properly conducted and the trial court was presented with sufficient evidence to make all necessary findings. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) ("The court of appeals was correct in holding that, absent a complete record on appeal, it must presume the omitted items supported the trial court's judgment.") (quoting Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 122 (Tex. 1991)); Willms v. Ams. Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied) ("[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order.").
Because no reporter's record was filed in this appeal, we presume there was sufficient evidence to support the trial court's order that Cooper's contested surrender of Hunt was without reasonable cause. See Willms, 190 S.W.3d at 803; see also Robbins, 833 S.W.2d at 623 (trial court found surety's claim that it felt insecure was not reasonable; finding was reviewed under predecessor statute to section 1704.207 of occupations code for sufficiency of evidence to support it); see also Seneca Ins. Co. v. Ross, No. 08-14-00101-CV, 2015 WL 8948435, at *5 (Tex. App.—El Paso Dec. 15, 2015, no pet.). We resolve Cooper's second issue against her.
Conclusion
We resolve Cooper's issues against her. Accordingly, we affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 140928F.P05
JUDGMENT
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F12-33267-Y.
Opinion delivered by Justice Fillmore, Justices Lang-Miers and Schenck participating.
In accordance with this Court's opinion of this date, we WITHDRAW our opinion and VACATE our judgment of December 28, 2015, and this is now the judgment of this Court.
The trial court's judgment is AFFIRMED.
It is ORDERED that appellee Mark Hunt recover his costs of this appeal, if any, from appellant Milene Cooper, d/b/a Ace Bail Bonds. Judgment entered this 29th day of March, 2016.