Opinion
No. 05-03-01419-CV
Opinion issued August 24, 2004.
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB02-27035-H.
Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Cowboy Bail Bonds appeals the trial court's entry of a final judgment of bond forfeiture. In a single issue, appellant argues the trial court erred in entering its judgment because the trial court failed to issue an arrest warrant upon the filing of appellant's affidavit of surrender. We affirm the trial court's judgment.
In October 2002, appellant posted a bond on behalf of Juan Gomez, III, in order to obtain his release from jail on a misdemeanor theft charge. On February 24, 2003, appellant filed in the trial court an "affidavit to go off bond" requesting the issuance of a warrant for Gomez' arrest. Gomez made two subsequent appearances in the trial court, but a failure to appear was entered on April 11, 2003. That same day, a bond forfeiture was entered and judgment nisi ordered. In a motion for new trial, appellant argued the trial court's failure to act on its "affidavit to go off bond" constituted a failure to issue an arrest warrant and operated as an affirmative defense to bond forfeiture under article 17.19 of the code of criminal procedure. The trial court denied appellant's motion for new trial, and this appeal followed.
In a single issue, appellant reiterates its argument, raised in its motion for new trial, that the trial court's failure to take any action in response to its "affidavit to go off bond" was sufficient to give rise to the affirmative defense provisions of article 17.19 of the code of criminal procedure. 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. . . .
(b) If the court or magistrate finds that there is cause for the surety to surrender his principal, the court shall issue a warrant of arrest for the principal. It is an affirmative defense to any liability on the bond that:
(1) the court or magistrate refused to issue a warrant of arrest for the principal; and
(2) after the refusal to issue the warrant the principal failed to appear
(c) If the court or magistrate before whom the prosecution is pending is not available, the surety may deliver the affidavit to any other magistrate in the county and that magistrate, on a finding of cause for the surety to surrender his principal, shall issue a warrant of arrest for the principal.
Tex. Code Crim. Proc. Ann. art. 17.19 (Vernon Supp. 2004).
Here, appellant merely filed its "affidavit to go off bond" without taking further action. For refusal to occur under article 17.19, the thing being refused must first be offered by the party requesting approval and in some manner called to the attention of the magistrate. Maya v. State, 126 S.W.3d 581, 583 (Tex. App.-Texarkana 2004, no pet.) (holding Cowboy Bail Bonds' "affidavit to go off bond" insufficient to show trial court denied or refused to grant affidavit as required by article 17.19). Because appellant did nothing more than file an affidavit, we cannot conclude the trial court "refused" to issue a warrant as required by article 17.19. See id. We overrule appellant's sole issue.
We affirm the trial court's judgment.