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### MEMORANDUM OPI NIO N No. 04-09-00373- CV Octavio CASTANEDA D/B/A Casta neda B ail Bonds, Appellant
v. The STATE of Texas, Appellee Fr om the 229th J udicial District Court, Starr County , Texas

Trial Court No. DC-09- 180 Honora ble Alex W illiam Gabert, Judge Pre siding Opinion by : Steven C. Hilbig, Just ice Sitt ing: Kar en Ang elini, J ustice

Sandee B ry an Mar ion, J ustice Steven C. Hilbig, Just ice Deliver ed and F iled: Aug ust 4, 2010 AFF I RMED Appellant, Octavio Castaneda d/b/a Castaneda Ba il Bonds, appea ls the order deny ing a bill of re view. We af

firm. BACK GR OUND Castaneda posted a $5,000.00 bond for J uan Amando Ca vazos, who was under indictment for felony possession of coca ine. The bond was forf eited and a judgme nt nisi was enter ed on Aug ust0 4

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13, 2008, when J uan Amando Cavazos failed to appea r for arr aig nment. The judgme nt nisi order ed that the State rec over $5,000.00 from Castaneda as the surety on the bail bond unless g ood cause was shown for Cavazos’s failure to appea r. Citation was issued, direc ting Castaneda to show cause why t h e judgme nt of forf

eiture should not be made final. The office r’s return of service , sta t i n g t h at Castaneda was pe rsonally serve d with the show ca

use order on Aug ust 21, 2008, is in the record. On Dec ember 23, 2008, the court coordina tor sent notice to Castaneda that a show cause hear ing was set for J anuar

y 29, 2009, at 3:00 p.m. Castaneda filed a pro se answe r on J anuar y 9, 2009. On Fe bruar y 4, 2009, the trial court signe d a final judgme nt, order ing Castaneda to pay the State $5,000. The judgme nt rec ites that Castaneda filed an answe r, but failed to appea r at the hear ing. Castaneda did not tim ely

file a dire ct appe al from this judg ment. Castaneda initially filed a petition f or bill of revie w in c ause number DC-08-306, the same
cause as the judgme nt nis i and final judgme nt. Howeve r, he did not pursue that petition and the
rec ord does not re flec t any action wa s taken on it
. Castaneda subsequently filed a petition for bill of revie w as a new cause . After a brief evidentiar y hear ing, the trial court signe d an order deny ing the re lief re quested in the pe tition. C astane da appe als this order. DISCUSSIO N An equitable bill of revie w is broug ht as a new lawsuit and challeng es the validity of a prior judgme nt that can no longe r be direc tly attacke d by other avenue s. Caldwell v. Barnes , 975 S.W .2d 535, 537 (Tex. 1998); Tice v. City of Pasadena , 767 S.W .2d 700, 702 (Tex. 1989); Transw orld Fin. Servs. v . Briscoe , 722 S.W .2d 407, 407 (Tex. 1987)
. The g rounds for g ranting a bill of revie w are
narr ow because of the fundamental policy in favor of t he finality of j u dg ments. Transw orld Fin. , 722 S.W .2d at 4 07. To obtain relief by bill of revie w, a petitioner must ordinarily show: (1) he

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exercis ed d u e d i l i gence to avail himself of all adequate leg al reme dies, (2) he has a meritorious defe nse to the cause of action underly ing the judgme nt, ( 3) that, without a ny fault or neg lige nce of h is own, (4) he was preve nted from making due to the fra ud, acc ident, or wrong ful act of the opponent. W

embley Inv. Co. v. Herrera , 11 S.W .3d 924, 927 (Tex. 1999); Caldwell , 975 S.W .2d at 537. Howeve r, i f t he peti t i o n er establishes he was not serve d with proce ss or given noti ce of a trial or hear ing, then his rig ht to due proce ss wa s violated, and he need not show a meritorious defe nse or wrong ful conduct by his opponent, and his want of fault or neg lige nce may be considere d establish ed
. P er a l t a v. Heights Med. Ctr ., Inc ., 485 U.S. 80, 86 (1988); Caldwell , 975 S.W .2d at 537; LBL Oil Co. v. Int’l Power Servs., Inc ., 777 S.W .2d 390, 390-91 (Tex. 1989); Lopez v. Lopez , 757 S.W .2d 721, 723 (Tex. 1988). We revie w the g rant or denial of a bi l l o f revie w under an abuse of discretion standard. Nguyen v. Intertex

, Inc ., 93 S.W .3d 288, 293 (Tex. App.—Houston [14t h Dist.] 2002, no pet.). We indulge ever

y presumption in favor of the trial court’s ruling
. Narvaez v. Maldonado , 127 S.W .3d 313, 319 (Tex. A

pp.—Austin 2004, no pet.). We will not disturb the trial court’s ruling unless the court acte d in an unrea sonable or arbitra ry manner or without re fe re n ce to any g uiding rules and principles. Beaumont Bank, N.A. v. Buller , 806 S.W .2d 223, 2 2 6 (T ex . 1 9 9 1 ). I n the absenc e of finding s of fac t and conclusions of law, we presume t h e t ri al co u rt found the nece ssary fac ts in
s u p p o rt of its judgme nt if there is any probative evidenc e to support such finding s. Nguyen , 93 S.W .3d at 293-94 (c iting Roberson v. Robinson , 768 S.W .2d 280, 281 (Tex. 1989)). Castaneda contends the bill of review shoul d have been gr anted because he established he
was ex o n er at ed fr o m bail bond liability pursuant to article 17.16 of the Texas Code of Criminal Procedur e. Howeve r, proof of a meritorious defe nse to the forf eiture claim is insufficient to set aside

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the judgme nt by bill of revie w. Castaneda does not a rg ue he was not proper ly serve d with proce ss
or notice of the hear ing, nor does he point to any evidenc e that he was preve nted from asser ting his defe nse by the fra

ud, acc ident or wrong ful act of the State, unmix ed with any fault or neg lige nce of his own. Acc ording ly , Castaneda has fa iled to show the trial cour t abused its discretion. The trial c ourt’s orde r deny ing the petition for bill of review is affirme d.
Steven C. Hilbig, Just ice

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