Opinion
No. 30753.
June 24, 1959.
Appeal from the 27th Judicial District Court, Bell County, James K. Evetts, J.
E. Colley Sullivan, per se, P. . Ballowe, Dallas, for appellants.
Raymond Thorton, Dist. Atty., Belton, and Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from a bond forfeiture.
The bond forfeited was an appearance bond in the sum of $1,000 conditioned that Mullins then in custody, who had been required to give bail on a felony non-support complaint filed with a Bell County Magistrate, should make his appearance "before the Criminal District Court of said County, at its present term, instanter, at the Court-house in the City of Killeen, in said County, and there remain from day to day, and from term to term of said Court, until discharged by due course of law, then and there to answer said accusation against him * * *.'
We judicially know that there is and was no Criminal District Court of Bell County, and that the County Seat of Bell County, where the District Court sits, is Belton and not Killeen.
Indictment having been returned, and Mullins having failed to appear, judgment nisi forfeiting the bond was rendered September 15, 1958.
The judgment nisi recites the obligation of the bond as being 'that Mullins make his personal appearance before the honorable District Court of Bell County, Texas, at the courthouse of said county, in the town of Belton.'
It is apparent that there is a material variance between the bond and the judgment nisi. Since there was and is no Criminal District Court of Bell County, and no District Court which sits at Killeen, Texas, the judgment forfeiting the appearance bond cannot be affirmed. Downs v. State, 7 Tex. App. 483[ 7 Tex.Crim. 483]; Williams v. State, 130 Tex.Crim. R., 92 S.W.2d 1036; Bonds v. State, 162 Tex.Crim. R., 286 S.W.2d 313.
The judgment is reversed and the cause remanded.