Opinion
NO. PD-0008-22
06-28-2023
Maxie D. GREEN d/b/a A to Z Bail Bonds, Appellant v. The STATE of Texas
Mark Barber, for Appellant. Jonathan Bryce Perry, for State.
Mark Barber, for Appellant.
Jonathan Bryce Perry, for State.
OPINION
Slaughter, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Keel, and McClure, JJ., joined.
This case involves the question of whether, for purposes of summary judgment in a bond forfeiture case, providing conclusive proof that the name of the defendant on bond was distinctly called at the door of the courtroom establishes the element that "[t]he name of the defendant shall be called distinctly at the courthouse door[.]" TEX. CODE CRIM. PROC. ART. 22.02. We hold that it does. This holding is founded on well-established precedent from this Court and the courts of appeals recognizing that calling the defendant's name at the courtroom door constitutes substantial compliance with the requirements of Code of Criminal Procedure Article 22.02. We therefore reverse the judgment of the court of appeals and remand this case to that court for further proceedings.
See, e.g., Deem v. State, 170 Tex.Crim. 564, 342 S.W.2d 758 (1961) (concluding that "substantial compliance" is adequate to satisfy Article 22.02 ’s predecessor, Article 425, and upholding bond-forfeiture judgment for the State where evidence was conflicting as to whether defendant's name was called at the courtroom or courthouse door).
I. Background
In 2017, after Maria Delcarman Sosa-Esparza was indicted for a felony offense, she entered into a bail bond agreement with Appellant Maxie D. Green, doing business as A to Z Bail Bonds. Appellant paid a $25,000 bond so that Sosa-Esparza could be released from the Wichita County Jail. A condition of the trial court in setting a bond amount was an assurance that Sosa-Esparza would appear for all of her court settings. But, on March 1, 2019, Sosa-Esparza failed to appear for her pretrial conference.
The trial court then signed a judgment nisi that provisionally forfeited the $25,000 bond. The judgment nisi stated that Sosa-Esparza's name was "distinctly called at the courtroom door. The Defendant was given reasonable time to appear after her name was called, but she did not appear." The judgment nisi also provided that the judgment would be made final unless good cause could be shown for why Sosa-Esparza failed to appear. Appellant filed an answer denying the allegations contained in the judgment nisi.
Sosa-Esparza did not respond, and the trial court entered a default judgment against her. She is not a party to the present appeal.
The State moved for traditional summary judgment to finalize the bond forfeiture. To prove that Sosa-Esparza's name was called in compliance with Article 22.02, the State attached three pieces of evidence: (1) a certified copy of the judgment nisi ; (2) a certification of call, stating that the defendant's name was called "three times loudly and distinctly in compliance with Texas Code of Criminal Procedure Article 22.02 ;" and (3) two unanswered requests for admission—Request No. 8 and Request No. 9—which asked Appellant to admit or deny that the defendant's name "was distinctly called outside the Wichita County courtroom door for a scheduled hearing on the hearing date" and that she "was given reasonable time and did not appear in Court for a scheduled hearing on the hearing date."
The certification of call was signed by the court's administrator and stated in full:
On March 1, 2019, pursuant to the ORDER of the Court, I called the name of the defendant Maria Sosa, in this case three times loudly and distinctly in compliance with Texas Code of Criminal Procedure Article 22.02. A reasonable time was given after the calls were made for the defendant to appear, but the defendant did not answer or appear and wholly made default.
Appellant responded to the State's motion for summary judgment. He argued that the State's evidence raised a genuine issue of material fact on an essential element of its case, namely, whether Sosa-Esparza's name was called at the courthouse door in compliance with Article 22.02. On January 4, 2021, the trial court granted the State's motion for summary judgment, and it awarded the State $27,466.18 for the forfeited bond, accrued interest, and other court costs and fees.
II. On Appeal
Appellant appealed the trial court's order granting summary judgment for the State. He argued, among other things, that because the judgment nisi stated that the defendant's name was called at the courtroom door, the State's evidence failed to conclusively establish that there was no genuine issue of material fact regarding whether her name was properly called at the courthouse door. The court of appeals agreed and reversed the trial court's grant of summary judgment. Green v. State , No. 02-21-00013-CV, 2021 WL 5747148, at *1 (Tex. App.—Fort Worth Dec. 2, 2021) (mem. op., not designated for publication).
Appellant additionally argued that there were genuine issues of material fact on two other elements: (1) whether Appellant received proper notice of the pretrial hearing, and (2) whether the defendant was properly identified. Because the court of appeals was persuaded by Appellant's argument regarding the calling of Sosa-Esparza's name at the courthouse door, it did not address the remaining points of error. Green , 2021 WL 5747148, at *1. We similarly do not address Appellant's other arguments in this opinion.
In reaching this decision, the court of appeals first determined that the certification of call was incompetent summary judgment evidence because it was conclusory. Id. at *3 (reasoning that, while the certification of call "provides some factual basis to support how [the defendant's] name was called (‘three times, loudly and distinctly’), it fails to provide any factual basis for where [her] name was called"). Specifically, by merely providing that the call was made "in compliance with" Article 22.02, the certification of call stated a mere legal conclusion and thus was "incompetent evidence to support summary judgment on the fact issue of whether [the defendant's] name was called at the courthouse door." Id.
Therefore, the court of appeals proceeded to consider, based solely on the judgment nisi and the deemed admissions, "whether the State established conclusively that Sosa's name was called at the courthouse door." Id. In finding that such a showing had not been made, the court reasoned that "[b]oth the judgment nisi and the deemed admissions provide only that Sosa's name was called at the courtroom door." Id. The court of appeals acknowledged that courts have "repeatedly held that calling a defendant's name at the courtroom door substantially complies with the directive to call the name at the courthouse door[.]" Id. at *4 (citing Deem v. State , 170 Tex.Crim. 564, 342 S.W.2d 758, 758–59 (1961) ; Caldwell v. State , 136 Tex.Crim. 524, 126 S.W.2d 654, 654 (1939) ; Aspilla v. State , 952 S.W.2d 610, 611–12 (Tex. App.—Houston [14th Dist.] 1997, no pet.) ). But it observed that "these cases were almost exclusively decided at trial on the merits rather than at the summary judgment stage." Id. The court then reasoned that "the distinction between proof at trial and proof at the summary judgment stage is important" here because "the presumptions and burdens of proof at trial are ‘immaterial to the burden that a movant for summary judgment must bear.’ " Id. (quoting Mo.-Kan.-Tex. R.R. v. City of Dallas , 623 S.W.2d 296, 298 (Tex. 1981) ). Specifically, the court observed that a summary judgment movant " ‘may not use a presumption to shift to the non[ ] movant the burden of raising a fact issue of rebuttal.’ " Id. (quoting Chavez v. Kan. City S. Ry. , 520 S.W.3d 898, 900 (Tex. 2017) ). Given this fact, the court determined that upholding the grant of summary judgment here would improperly afford the State a "presumption of substantial compliance regardless of any genuine issues of material fact that arise on the face of its own evidence." Id. at *5. Thus, because the summary judgment evidence "wholly fail[ed] to address whether Sosa's name was called at the courthouse door, and because [the court of appeals was] precluded from inferring facts in the State's favor, the summary judgment evidence creates doubt about where Sosa's name was called." Id. at *4. Accordingly, the court of appeals reversed the trial court's ruling granting summary judgment and remanded the case for further proceedings. Id. at *5. We granted the State's petition for discretionary review to determine whether the court of appeals erred by holding that the State may not rely on evidence of substantial compliance with Article 22.02, based on the calling of the defendant's name at the courtroom door, for purposes of showing entitlement to summary judgment in bond-forfeiture proceedings.
Justice Walker filed a concurring opinion elaborating further on the majority's reasoning. Green , 2021 WL 5747148, at *5–6 (Walker, J., concurring) ("The State did not establish this element [that the defendant's name was called at the courthouse door] as a matter of law, and any inquiry into substantial compliance would prematurely shift the summary-judgment burden away from the State[.]").
III. Analysis
As the court of appeals recognized, courts have repeatedly held that calling the defendant's name at the courtroom door constitutes substantial compliance with Article 22.02 ’s requirement of distinctly calling the defendant's name at the "courthouse door." See TEX. CODE CRIM. PROC. ART. 22.02. But the court of appeals effectively concluded that such a rule of substantial compliance cannot apply at the summary-judgment stage because doing so would improperly afford the State a "presumption" of facts in its favor. We disagree. Contrary to the court of appeals’ reasoning, a showing of substantial compliance with the requirements of Article 22.02 based on the calling of the defendant's name at the courtroom door is based on actual facts, not any presumption of facts. Therefore, the rule of substantial compliance is applicable at the summary-judgment stage, and the court of appeals erred in holding otherwise.
A. Bond Forfeiture Under Article 22.02 and "Substantial Compliance"
The relevant provisions in Article 22.02 governing bond forfeiture provide as follows:
Bail bonds and personal bonds are forfeited in the following manner: 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.
TEX. CODE CRIM. PROC. ART . 22.02 (emphasis added).
When moving for summary judgment on a bond forfeiture, the State must conclusively prove: "(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." Alvarez v. State , 861 S.W.2d 878, 888 (Tex. Crim. App. 1993) (op. on reh'g). The burden then shifts to the respondent to show good cause as to why the defendant did not appear. Id. Only the second element is at issue in this case, and we limit our analysis accordingly.
As we have already noted, this Court's decades-old precedent holds that calling the name of the defendant at the courtroom door substantially complies with the requirements of Article 22.02. For example, in the 1961 case of Deem v. State , after the trial court entered final judgment for the State in a bond forfeiture proceeding, the sureties appealed on the basis that the evidence failed to show the defendant's name was called distinctly at the courthouse door before the forfeiture. 342 S.W.2d at 759. In resolving this issue, this Court observed that the deputy clerk of the court "testified that the name of the principal was called distinctly three times outside the court room door, but that he did not know if it was called at the main door of the court house." Id. The judgment nisi reflected, in potential conflict with this testimony, that the defendant's name was called at the courthouse door. Id. Nevertheless, the Court did not find this potential conflict problematic, instead concluding that these facts demonstrated "there was a substantial compliance with the requirement that the name of the principal be called distinctly at the court house door[.]" Id. (emphasis added) (citing Caldwell , 126 S.W.2d at 654 ). Accordingly, it upheld the judgment of forfeiture. Id.
This Court reaffirmed its endorsement of substantial compliance in this context several years later in Bennett v. State , 394 S.W.2d 804, 807 (Tex. Crim. App. 1965). There, again following entry of final judgment against the sureties in a bond forfeiture proceeding, this Court upheld the trial court's judgment over the sureties’ complaint that "the record show[ed] that the defendant's name was not called at the courthouse door[.]" Id. As was the case in Deem , the judgment nisi recited that the defendant's name was "distinctly called at the door of the courthouse and that he did not appear." Id. The Court observed that, "[w]hile there is testimony in the record that the trial judge directed the bailiff to go outside in the hallway of the courtroom on the fourth floor of the courthouse and call the defendant's name, there is no showing that the bailiff did not go to the main door of the courthouse on the first floor and call his name." Id. But the Court ultimately concluded that any such uncertainty or lack of clarity in the record was immaterial, stating, "Be that as it may, under the recent decision of this court in Deem , the record shows a substantial compliance with the requirement ... that the name of the principal be called, distinctly, at the courthouse door." Id. (citation omitted). Accordingly, this Court upheld the trial court's judgment on the forfeiture based on facts showing that the defendant's name had been called outside the courtroom door under a theory of substantial compliance. Id.
In our subsequent decision in Tocher v. State , this Court cited Bennett for the proposition that the "calling of the principal's name outside in the hallway on the fourth floor of the courthouse is in substantial compliance with the requirement in Art. 22.02 [ ] that the name be ‘called distinctly at the courthouse door.’ " 517 S.W.2d 299, 300 (Tex. Crim. App. 1975). Though the Court in Tocher ultimately concluded that substantial compliance was "not an issue" in that case because the defendant's name was not called at all , this Court nevertheless reaffirmed the validity and meaning of Bennett . Id. We also observe that, in reliance on the foregoing cases, numerous courts of appeals have held that calling the defendant's name at the courtroom door constitutes substantial compliance with Article 22.02.
The dissenting opinion contends that we have misread our precedent and that the cases in question do not actually mean that calling the defendant's name at the courtroom door will always constitute substantial compliance under Article 22.02. See Dissenting Op., at 643–46. We disagree with the dissent's competing interpretation of the caselaw. Contrary to the dissent's suggestion, the aforementioned cases do not condition a finding of substantial compliance on the "specific facts" showing that the courtroom door was in close enough proximity to the courthouse door so as to constitute the "functional equivalent" of calling the defendant's name at the courthouse door. Id. at 643–44. Indeed, in Deem there was no such mention of any proximity or "functional equivalence" considerations. See Deem , 342 S.W.2d at 759. And in Bennett , the Court expressly noted that the courtroom door was on the fourth floor of the courthouse, which by definition would seem to preclude a finding that it was in close proximity to the exterior courthouse door. Bennett , 394 S.W.2d at 807. It is true, as the dissent notes, that in this Court's earlier 1939 decision in Caldwell , the Court looked to the particular facts in determining whether substantial compliance was shown. See 126 S.W.2d at 655–56. But in our subsequent decisions in Deem and Bennett , we did not follow that approach. Therefore, this aspect of Caldwell was abrogated by our later decisions in Deem and Bennett .
Further, while it is true, as the dissent notes, that Deem and Bennett are distinguishable from this case because the judgment nisi in those cases stated that the defendants’ names were called at the courthouse door, that distinction is not material here. As in this case, the actual evidence presented in Deem and Bennett indicated that the defendants’ names were called outside the courtroom door, and those facts were the basis for this Court finding "substantial compliance" in each case. We observe that, had the holdings in Deem and Bennett been based on a prima facie showing of compliance with Article 22.02 pursuant to the judgment nisi , it would have been unnecessary for this Court to rely on the concept of substantial compliance because the judgment nisi reflecting that the defendant's name was called at the courthouse door would have afforded a presumption of actual compliance with Article 22.02. For these reasons, we disagree with the dissent's critique of our reading of the caselaw.
See Lara v. State , No. 11-18-00286-CR, 2020 WL 6373241, at *3 (Tex. App.—Eastland Oct. 30, 2020, pet. ref'd) (mem. op., not designated for publication) (noting that calling defendant's name in the hallway outside the courtroom substantially complied with the requirements of Article 22.02 ); Guiles v. State , No. 02-09-00146-CV, 2010 WL 851421, at *3 (Tex. App.—Fort Worth Mar. 11, 2010, no pet.) (mem. op., not designated for publication) (same); Quintero v. State , No. 14-96-00587-CR, 1998 WL 104960, at *2 (Tex. App.—Houston [14th Dist.] Mar. 12, 1998, pet. dism'd w.o.j.) (not designated for publication) (same); Aspilla v. State , 952 S.W.2d 610, 612–613 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (same); Burns v. State , 814 S.W.2d 768, 772 (Tex. App.—Houston [14th Dist.] 1991) (same; "where the State puts on evidence of substantial compliance by showing that the principal's name was called in the hallway outside the courtroom door, proof that the principal's name was not called at the courthouse door does not defeat the State's showing of substantial compliance. To hold otherwise, would render the term ‘substantial compliance’ meaningless.") rev'd sub nom. on other grounds , Alvarez v. State , 861 S.W.2d 878 (Tex. Crim. App. 1992).
To be clear, the scope of our review in this case does not require us to fully revisit our prior holdings with respect to the appropriateness of permitting a showing of substantial compliance under Article 22.02. Indeed, we agree with the State that the aforementioned holdings are well-settled, and we will not disturb them here. Moreover, we do not understand the court of appeals’ opinion to have rejected the applicability of substantial compliance generally, only to hold that a showing of substantial compliance in the form of calling the defendant's name at the courtroom door could not satisfy the State's burden at the summary-judgment stage. See Green , 2021 WL 5747148, at *4 (accepting that courts have "repeatedly held that calling a defendant's name at the courtroom door substantially complies with the directive to call the name at the courthouse door," but declining to apply that principle on summary judgment). Recognizing that the cases discussed above were all the result of trials and thus did not directly address whether the aforementioned rule of substantial compliance under Article 22.02 could properly be applied on summary judgment, we now turn to consider that issue.
To the extent that the dissent generally calls into question the legitimacy of applying substantial compliance in this context, we simply note that the concept of substantial compliance is " ‘ubiquitous ... throughout Texas law’ " and has been frequently recognized as satisfying various civil statutory requirements, with the exception of deadlines. Sorrell v. Estate of Carlton , 593 S.W.3d 167, 173 (Tex. 2019) (quoting BankDirect Capital Fin., LLC v. Plasma Fab, LLC , 519 S.W.3d 76, 81 (Tex. 2017) ). We recognize that there is some inherent tension between this principle and our approach to construing penal statutes, where we generally adhere to the statute's plain language and do not deviate from it absent some compelling reason for doing so. See, e.g. , Baird v. State , 398 S.W.3d 220, 228 (Tex. Crim. App. 2013) (if statutory language is plain on its face, we are "ordinarily constrained to adhere to the plain import of that statutory language, regarding it as the definitive indicium of the legislative intent"). But, because the issue here does not involve a penal statute that would demand a strict construction and instead involves a quasi-civil bond-forfeiture statute, we adhere to civil principles that support a rule of substantial compliance in this context.
B. Summary-judgment posture does not preclude applicability of substantial compliance.
Although criminal in nature, bond-forfeiture proceedings are governed by the Texas Rules of Civil Procedure. See TEX. CODE CRIM. PROC. ARTS . 22.10, 44.44. Pursuant to the civil rules, in a motion for summary judgment, the moving party has the burden to establish that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. TEX. R. CIV. P . 166a(c). When evaluating the evidence presented on a motion for summary judgment, "we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). If, under this standard, the movant meets his burden, "the burden then shifts to the non-movant to disprove or raise an issue of fact as to at least one of" the elements. Amedisys, Inc. v. Kingwood Home Health Care, LLC , 437 S.W.3d 507, 511 (Tex. 2014). However, if the movant does not meet this burden, "the burden does not shift and the non-movant need not respond or present any evidence." Id. On appeal, a trial court's ruling on summary judgment is reviewed de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005).
Here, contrary to the court of appeals’ reasoning, nothing about applying the aforementioned rule of substantial compliance under Article 22.02 at the summary-judgment stage conflicts with these general summary-judgment principles. Importantly, the court of appeals believed that applying a rule of substantial compliance in this context would amount to an improper "presumption" of facts in the State's favor. See Green , 2021 WL 5747148, at *4–5. In support, it cited the Texas Supreme Court's decision in Chavez for the proposition that a summary judgment movant " ‘may not use a presumption to shift to the non[ ] movant the burden of raising a fact issue of rebuttal.’ " Id. at *4 (quoting Chavez , 520 S.W.3d at 900 ). But Chavez simply stands for the proposition that a presumption cannot establish a fact in a summary-judgment proceeding in the same manner that it would at trial; on summary judgment, evidence is required to satisfy the movant's burden of proof. See Chavez , 520 S.W.3d at 900–01. Chavez is inapplicable here because the rule of substantial compliance with Article 22.02 is not a factual presumption at all. Instead, the facts and evidence before the court are evaluated to determine whether they actually establish substantial compliance with Article 22.02 ’s requirements by showing that the defendant's name was called outside the courtroom door. No facts establishing substantial compliance are "presumed" in the State's favor. In short, the court of appeals erred here by conflating the concepts of presumptions and substantial compliance. We conclude that the latter may be appropriately applied on summary judgment where the actual facts before the court conclusively establish substantial compliance with Article 22.02 ’s requirements.
Specifically, Chavez dealt with whether the presumption that an attorney retained for litigation has the express authority to enter into a settlement agreement may be relied on in summary-judgment proceedings when the underlying dispute concerned the attorney's ability to bind the client to the agreement. Chavez , 520 S.W.3d at 900–01. The Court ultimately held that, even assuming such a presumption would be proper, it could not apply at the summary-judgment stage because at that stage actual evidence was required to satisfy the moving party's burden of proof. Id. at 901 (concluding that summary judgment was improper because the moving party "was required to provide evidence that Chavez actually authorized her counsel to enter into a settlement agreement on her behalf" and could not rely on presumption to establish that fact).
Compare Beck v. Sheppard , 566 S.W.2d 569, 571 (Tex. 1978) (defining presumption as "a rule which draws a particular inference as to the existence of one fact, not actually known, arising from its usual connection with other particular facts which are known or proved"), with Endeavor Energy Res., LP v. Trudy Jane Anderson Testamentary Trust , 644 S.W.3d 212, 220 (Tex. App.—Eastland 2022, pet. denied) (substantial compliance generally "means that one has performed the essential requirements of a statute, and it excuses deviations which do not seriously hinder the legislature's purpose in imposing such requirements") (citations and internal quotation marks omitted).
Indeed, we are aware of numerous decisions from the intermediate appellate courts upholding grants of summary judgment when the facts conclusively demonstrated substantial compliance with the pertinent statute. See, e.g. , United Fire & Cas. Co. v. Boring & Tunneling Co. of Am. , 321 S.W.3d 24, 29 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (affirming grant of summary judgment upon showing that party substantially complied with the notice requirements of Government Code Section 2253.041 ; although statute plainly required that notice "must be accompanied by a sworn statement of account" and the notice here did not include any notary seal or signature, the sworn statement nevertheless "met the essential requirements of the statute" and thus substantially complied with statutory requirements); Capitol Indem. Corp. v. Kirby Rest. Equip. & Chem. Supply Co. , 170 S.W.3d 144, 147–48 (Tex. App.—San Antonio 2005, pet. denied) (same; "The statute establishing the procedure for presenting a claim against a payment bond on a public contract is remedial in nature and should therefore be construed liberally to accomplish its purposes."); McBeath v. Estrada Oaks Apartments , 135 S.W.3d 694, 696–97 (Tex. App.—Dallas 2003, no pet.) (granting summary judgment based on showing of substantial compliance with Property Code Section 92.202 ; "Because McBeath's letters serve as substantial compliance for conditions precedent to recovery under section 92.202(a)(2), we [ ] conclude McBeath established, as a matter of law, she was entitled to summary judgment."); Richardson v. Mid-Cities Drywall, Inc. , 968 S.W.2d 512, 514–15 (Tex. App.—Texarkana 1998, no pet.) (observing that Property Code Section 53.054, governing mechanic's, contractor's, or materialman's liens, should be "liberally construed for the purpose of protecting laborers and materialmen," and upholding grant of summary judgment based on showing that affidavit supporting lien substantially complied with Property Code Section 53.054 ).
C. The calling of the defendant's name at the courtroom door substantially complied with the requirements of Article 22.02, and there remained no genuine issue of material fact on that element.
Applying this holding here, the judgment nisi stated that the defendant's name was "distinctly called at the courtroom door." The certification of call, signed by the court administrator, further stated that the defendant's name was called "three times loudly and distinctly in compliance with [article] 22.02." And, pursuant to the deemed admissions, Appellant admitted that the defendant's name "was distinctly called outside the Wichita County courtroom door for a scheduled hearing on the hearing date" and that she "was given reasonable time and did not appear in Court for a scheduled hearing on the hearing date." As a matter of law, such evidence conclusively establishes substantial compliance with the requirements of Code of Criminal Procedure Article 22.02. See, e.g. , Bennett, 394 S.W.2d at 807. Upon such a showing, the burden then shifted to Appellant to disprove or raise an issue of fact with respect to the calling of the defendant's name. Amedisys, Inc. , 437 S.W.3d at 511. Appellant presented no new evidence or argument other than his assertion that the defendant's name was not called at the courthouse door, and thus there is no genuine issue of material fact regarding this element. Therefore, the court of appeals erred by reversing the trial court's grant of summary judgment on this basis.
IV. Conclusion
Evidence that a defendant's name was called at the courtroom door constitutes substantial compliance with the requirements of Code of Criminal Procedure Article 22.02 for purposes of a bond-forfeiture proceeding. Such is the case regardless of whether the case is resolved at the summary-judgment stage or proceeds to a trial. The court of appeals erred by holding otherwise. We therefore reverse the judgment of the court of appeals and remand the case for consideration of Appellant's remaining arguments on appeal.
Yeary, J., filed a dissenting opinion.
Keller, P.J., dissented.
Walker, J., did not participate.
Yeary, J., filed a dissenting opinion.
The Court decides that "conclusive proof" that the defendant's name was distinctly called at the door of the courtroom door establishes "conclusively" the statutory element that his name "shall be called distinctly at the courthouse door[.]" Majority Opinion at 634 & 642; TEX. CODE CRIM. PROC. art. 22.02 (emphasis added). This is true, the Court decides, not only as a matter of proof at the trial of a bond forfeiture case, but even for purposes of a summary judgment proceeding. But the Court's premise is flawed. The cases upon which it relies do not even stand for the proposition that evidence that the name was called at the courtroom door will categorically prove (even as a matter of "substantial compliance") that it was called at the courthouse door for purposes of trial , much less for purposes of a summary judgment proceeding. I respectfully dissent.
Substantively unchanged since its appearance as Article 408 of the 1856 "Old Code," present Article 22.02 reads:
Bail bonds and personal bonds are forfeited in the following manner: 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.
Tex. Code Crim. Proc . art. 22.02 (emphasis added).
Typically, the judgment nisi will serve to establish at least a prima facie case in a bond forfeiture proceeding, including evidence of the necessary element that the defendant's name was "called distinctly at the courthouse door[.]" Tocher v. State , 517 S.W.2d 299, 300-01 (Tex. Crim. App. 1975). It is then up to the defendant or surety to rebut that prima facie case with evidence that the defendant's name was not , in fact, called at the courthouse door. Id. at 301. If he cannot, then the trial court does not err to grant a State's motion for summary judgment.
But that assumes that a judgment nisi actually recites that the defendant's name was called at the courthouse door, as in Tocher itself. Id. at 300 ; see Swaim v. State , 498 S.W.2d 188, 191 (Tex. Crim. App. 1973) (uncontested judgment nisi recital that the defendant's name was called at the "courthouse door" served as conclusive proof). Here, the judgment nisi does not. Instead, it recites that the defendant's name was called out at the courtroom door. And that is functionally the only evidence the State had to offer relating to this element of its bond forfeiture case—or, at least, it was all that the State did offer for purposes of its motion for summary judgment.
The two unanswered requests for admissions, to the extent they prove anything at all, also refer to whether Appellant's name was called at the "courtroom door," not the courthouse door. Majority Opinion at 635.
In my view, such a recitation in a judgment nisi may only serve to shift the burden of proof to the defendant with respect to the statutory element requiring proof of calling a name at the "courthouse" door if the words "courtroom" and "courthouse" are synonymous, or if evidence of "courtroom" will always, without more, prove "courthouse." The Court today does not declare the two terms to be synonymous—presumably because, manifestly, they are not. But it does effectively declare that calling a defendant's name at the courtroom door will always suffice to prove his name has been called at the courthouse door—categorically—as a matter of "substantial compliance." And from this premise the Court reasons that a judgment nisi that recites "courtroom door," if not refuted by the defendant, will always serve "conclusively" to prove "courthouse door," even for purposes of a summary judgment proceeding.
Given the statute's long lineage, see note 1, ante , it might be thought that for this Court to construe the word "courthouse" in Article 22.02 to mean courtroom door would make it more functional in the modern age of multistory courthouses. After all, it seems even to me that a defendant is more likely to be found waiting in the common area outside the courtroom door than in the common area (if any) outside the main door of a large modern courthouse. But that is not a choice for this Court to make, consistent with separation of powers, Tex. Const . art. II, § 1, and I am gratified that the Court today does not take such an approach to construing the statute.
I am somewhat troubled by the ease with which some courts—in this case and in others—decide that "substantial compliance" with a statutory mandate is all that is necessary to show what a legislative enactment manifestly requires. When the Legislature permits "substantial compliance" with a procedural mandate to be sufficient, it knows how to say so. E.g. , Tex. Code Crim. Proc . art. 26.13(c) ("In admonishing the defendant [during a guilty plea proceeding], substantial compliance by the court is sufficient[.]") (emphasis added). It has not explicitly said so in Article 22.02. The Court also points to "numerous decisions from the intermediate appellate courts upholding grants of summary judgment when the facts conclusively demonstrated substantial compliance with the pertinent statute." Majority Opinion at 641, n.11. But at least some of the intermediate court opinions pointed to by the Court address statutes that themselves appear to contain legislative authorization to apply at least the equivalent of a substantial compliance standard. See, e.g. , United Fire & Cas. Co. v. Boring & Tunneling Co. of Am. , 321 S.W.3d 24 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (applying Tex. Gov't Code § 2253.041, which in part provides: "(c) The notice must be accompanied by a sworn statement of account that states in substance : ...") (emphasis added); Richardson v. Mid-Cities Drywall, Inc. , 968 S.W.2d 512 (Tex. App.—Texarkana 1998, no pet.) (applying Tex. Prop . Code § 53.054, which in part provides: "(a) The affidavit must be signed by the person claiming the lien or by another person on the claimant's behalf and must contain substantially : ...") (emphasis added). Again, the statute at issue here contains no such language. And all of this leads me to question whether a court may properly, consistent with the constitutional mandate of separated powers, declare "substantial compliance" with a law sufficient when the Legislature itself has not authorized it to do so.
I agree that there may be some ineluctable wiggle room within which courts must determine what it means to conduct a required procedure "at" the courthouse door. See note 5, post. Must the defendant's name be called out literally on the threshold of the courthouse door, or will two feet in front of or behind the threshold suffice? In any event, here, even assuming the applicability of the cases that the Court says permit substantial compliance, the State's summary judgment evidence was deficient, for the reasons developed in the text post. For the present, therefore, I will say no more about the propriety of a "substantial compliance" construction of Art. 22.02.
But still, the cases that the Court cites in support of its premise do not say what the Court suggests they do. Majority Opinion at 637–39. They do not hold that proof of calling the defendant at the "courtroom door" will categorically constitute at least substantial compliance with the State's burden to show calling the defendant at the "courthouse door." Instead, each of those cases looks to the specific facts presented to determine, circumstantially, whether what the State showed to have happened constituted the functional equivalent of calling the defendant's name "at the courthouse door[.]" TEX. CODE CRIM. PROC . art. 22.02 (emphasis added). The cases do not hold that proof of calling at the "courtroom door" will always serve as proof of calling "at the courthouse door," no matter the circumstances—even for purposes of a bond forfeiture trial, much less of a summary judgment proceeding.
In Deem v. State , 170 Tex.Crim. 564, 342 S.W.2d 758, 759 (1961), the earliest case cited by the Court today, the judgment nisi recited that the defendant's name "was called distinctly at the door of the court house." The defendant's sureties argued that the judgment nisi was incorrect in this regard, and testimony was adduced from a deputy district clerk that the defendant's name "was called ... outside the court room door, but that he did not know if it was also called at the main door of the court house." Id. (emphasis added). In rejecting the sureties’ claim, the Court simply stated: "It is concluded that there was a substantial compliance with the requirement that the name of the principal be called distinctly at the court house door. Caldwell et al. v. State , 136 Tex.Cr.R. 524, 126 S.W.2d 654." Id. The opinion in Deem does not say exactly how far "outside the court room door" the defendant's name was called, but its reliance upon Caldwell suggests that this would have been a relevant consideration.
In Caldwell , the judgment nisi recited that the defendant's name was called "at the door of the court house[,]" but facts adduced at the trial to determine whether the judgment nisi should be made final made it clear that this recitation was not literally accurate. 136 Tex.Cr.R. 524, 525, 126 S.W.2d 654, 655 (1939). The facts in Caldwell did not show that the defendant's name was called at the door of the courtroom either. Instead, the deputy sheriff stood at a cigar stand in the large lobby ("seventy-five feet long and twenty or thirty feet wide") outside of the courtroom, but "within four steps (12 feet) of the outer door of the court house[,]" and called the defendant's name from there. Id. In determining whether this would satisfy the statutory mandate that the name be called "at the court house door[,]" the Court invoked an even earlier case from the Texas Supreme Court construing the word "at" in the context of the phrase "at the door of the court house[.]" Id. 136 Tex.Cr.R. at 526, 126 S.W.2d at 655-56 (quoting Howard v. Fulton , 79 Tex. 231, 236, 14 S.W. 1061, 1062 (1891) ). The Caldwell Court concluded: "The place from which appellant's name was called when the forfeiture was taken on his bond was 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." Id. 136 Tex.Cr.R. at 656, 126 S.W.2d at 527.
The question in Howard was whether a notice of trustee sale of land, which by the terms of the mortgage instrument was to be posted "at the courthouse door," was properly situated when it was literally posted on a bulletin board in the courthouse some forty feet away, but "in open view from the door[.]" The Supreme Court determined that the word "at" was less precise in terms of designating spatial relationships than the words "in" or "on" would be, and opined that "[w]e do not think that the legislature meant, nor do we think the parties to the mortgage under consideration intended, that the notice should be posted on or in the door." 79 Tex. at 236, 14 S.W. at 1062.
Who is to say whether the Court would have concluded in Caldwell that the place from which the name was called would have been within a "reasonable distance" of the courthouse door had the evidence been that the deputy sheriff stood at the courtroom door? That door could have been as much as seventy-five feet away from the courthouse door, and it is hard to imagine the Court would so readily have found that distance to be "reasonable ... under the circumstances" so as "to be in substantial compliance with the law requiring that [the defendant's] name be called at the [courthouse] door."
In Bennett v. State , 394 S.W.2d 804, 807 (Tex. Crim. App. 1965), the judgment nisi recited, as in Deem , that the defendant's name was called at the courthouse door. Testimony at trial showed that the bailiff had been directed to call the name "outside in the hallway of the courtroom on the fourth floor of the courthouse[.]" Id. Because the judgment nisi recited that the defendant's name had in fact been called at the courthouse door, and no evidence showed that the bailiff did not also do that , the Court suggested that the defendant and sureties failed to rebut the State's prima facie case. Id. The Court then remarked: "Be that as it may, under the recent decision of this court in Deem, et al., v. State , the record shows substantial compliance with the requirement of Art. 425 [now Article 22.02 ], that the name of the principal be called, distinctly, at the courthouse door." Id. As in Deem , however, there was no evidence that the name was called precisely "at the courtroom door."
Neither Deem nor Bennett may be read fairly to stand for the proposition that calling the name merely from the courtroom door will invariably constitute "substantial compliance" with Article 22.02, since neither presents those facts, and both may have been resolved alternatively on the basis that the prima facie showing from the judgment nisi (reciting that the defendant's name was called from the "courthouse door") was, in any event, unrebutted. The judgment nisi in this case simply recites that the defendant's name was called at the courtroom door. Not in the hallway outside the courtroom door, and certainly not within twelve feet (or some other "reasonable distance") of the courthouse door.
The Court also cites Tocher for its observation that Bennett stands for the proposition that the calling of the principal's name outside in the hallway of the fourth floor of the courthouse is in substantial compliance with the requirement in Art. 22.02, V.A.C.C.P., that the name be called distinctly at the courthouse door. Majority Opinion at 638. But substantial compliance was "not an issue" in Tocher , as the Court there expressly recognized. Tocher , 517 S.W.2d at 300. Instead, the Court upheld the forfeiture because the judgment nisi recited that the defendant's name had been called out literally at the courthouse door, and no evidence at the bond forfeiture hearing suggested otherwise.
The Court reads its precedents for the proposition that a judgment nisi that recites the bare fact that the name was called at the courtroom door will always constitute prima facie proof, at least by substantial compliance, that the name was called at the courthouse door, and reasons from that premise that when that prima facie proof goes unrebutted, then summary judgment is appropriate. But the cases do not support the premise that proof of "courtroom door," without more, will invariably constitute proof of "courthouse door." It seems to me that a judgment nisi that recites no more than this bare fact fails to satisfy the State's burden of proof in the first place, and it does not trigger any duty of rebuttal from a defendant or his sureties in order to avoid summary judgment.
I am not the only judge on this Court to have ever understood the cases in essentially this way. As former Judge Overstreet observed: "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." Alvarez v. State , 861 S.W.2d 878, 885 (Tex. Crim. App. 1992) (Overstreet, J., concurring in part and dissenting in part).
By no means do I attempt here to resolve whether the statute at issue in this case was complied with, substantially or otherwise. I only object to the Court's decision that this case was properly resolved by summary judgment. I am persuaded that the Court misreads our precedents. Moreover, whatever the Court may conclude about the wisdom of our precedents (those that the Court reads today to invariably allow calling a name at the courtroom door instead of the courthouse door), I consider it my duty to apply deference to the legislative determination to require calling that name at the courthouse door. To the degree that the Court assumes that calling a name at a courtroom door is the functional equivalent, always, of calling a name at a courthouse door, its decision fails to defer to our Legislature's own policy decisions, as reflected in our statutory law.
I respectfully dissent.