NO. 03-15-00121-CR 

IN THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AT AUSTIN, TEXAS 

TOM BENSON, 

Defendant-Surety, 

Appellant, 

vs. 

THE STATE OF TEXAS, 

Appellee. 

Appealed from the County Court at Law Number One 

Sitting at Travis County, Texas 

Trial Court No. C-1-CV-14-002294 

The Honorable Todd Wong, Presiding 

APPELLANTS' BRIEF 

TOM BENSON 

Texas Bar No. 02170500 

900 Jackson St., Ste. 750 

Dallas, Texas 75202-4461 

(214) 742-9898 Telephone 

(214) 742-9879 Fax 

tomrbenson@gmail.com 

APPELLANT PRO SE 

ACCEPTED

03-15-00121-CR

5184558

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/6/2015 11:26:48 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/6/2015 11:26:48 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL 

Appellant 

Tom Benson 

Texas Bar No. 02170500 

900 Jackson St., Ste 750 

Dallas, Texas 75202-4461 

(214) 742-9898 Telephone 

(214) 742-9879 Fax 

tomrbenson@gmail.com 

Appellee 

The State of Texas 

Counsel (Trial and Appeal) 

Pro Se 

Counsel (Trial and Appeal) 

Tim Labadie 

Assistant County Attorney 

Travis County 

Texas Bar No. 11784853 

P.O. Box 1748 

Austin, Texas 78767-1748 

(512) 854-9513 Telephone 

(512) 854-4808 Fax 

tim.labadie@traviscountytx.gov 

ii 
STATEMENT CONCERNING ORAL ARGUMENT 

Because this appeal contains arguments based upon established law, 

Appellant does not believe that oral argument would be helpful to the Court. 

iii 
TABLE OF CONTENTS 

IDENTITY OF PARTIES AND COUNSEL ............................ ii 

STATEMENT CONCERNING ORAL ARGUMENT ................... iii 

INDEX OF AUTHORITIES .......................................... v 

STATEMENT OF THE CASE ...................................... vii 

POINTS OF ERROR PRESENTED ................................. viii 

STATEMENT OF FACTS ........................................... 1 

POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING 

THE STATE'S MOTION FOR SUMMARY 

JUDGMENT . ................................. 3 

POINT OF ERROR 1: ............................................. 3 

Standard of Review ............................................ 3 

Argument and Authority . ...................................... 5 

STATE PRESENTS PRIMA FACIE CASE ........................ 5 

BURDEN SHIFTS TO SURETY ................................ 5 

AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5) ........ 6 

SURETY'S SUMMARY JUDGMENT PROOF .................... 7 

RELIEF GRANTED BY TRIAL COURT ......................... 9 

CONCLUSION . .................................................. 10 

REQUEST FOR RELIEF ..................•........................ 10 

CERTIFICATE OF COMPLIANCE ................................. 11 

CERTIFICATE OF SERVICE ...................................... 12 

APPELLANT'S APPENDIX ........................................ 13 

lV 
INDEX OF AUTHORITIES 

CASES 

Alvarez v. State, 861 S.W. 2d 878, 881 (Tex. Cr. App. 1992) ............ 3, 5, 9 

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979) 

.................................................................. 4 

Deckard v. State, 605 S.W.2d 918 (Tex. Cr. App.1980) .................... 5 

Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981) ................ 5 

Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 

41, 47 (Tex.1965) . .................................................. 4 

Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995) ... 4 

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004) ....... 3 

Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984) ................. 9 

Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974) ...................... 4, 5 

Palmer v. Enserch Corp., 728 S.W.2d 431, 436 (Tex. App. - Austin 3rd 

Dist.1987, writ re.f'd n.r.e. ) ............................................ 5 

Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997) ......... 4 

Southwestern Blee. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002) ...... 4 

Texas Beef Cattle Co. v. Green, 921 S.W. 2d 203, 212 (Tex. 1996) ........... 7 

Tocher v. State, 517 S.W.2d 299, 301 (Tex. Cr. App.1975) ................. 5 

v 
TEXAS RULES OF CIVIL PROCEDURE 

Tex. R. Civ. P. 166a(c) ........................... .................. 3, 4 

TEXAS CODE OF CRIMINAL PROCEDURE 

art. 22.10 . ......................................................... 3 

art. 22.13(5)(A)(l) . ............................................... 6, 7 

Art. 22.13(a)(5)(A) ........................................... 2, 6, 7, 9 

art. 22.13(b ) .................................................... 6, 10 

OTHER AUTHORITY 

2 ROY W. McDONALD, TEXAS CIVIL PRACTICE § 9:44, at 378 (1992) 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

VI 
STATEMENT OF THE CASE 

Nature of the case. Appellee, the State of Texas, ["State"] sued appellant to 

enforce the forfeiture of a bail bond. (CR. 4 ). Appellant, ["Surety"] filed a general 

denial and asserted a affirmative defense provided by statute. (CR. 14-15). 

Course of proceedings. The State moved for a summary judgment. (CR. 9-

13). The Surety filed a response and provided additional summary judgment 

proof. (CR. 16-23). 

Trial court disposition. The trial court granted the State's Motion for 

Summary Judgment and entered a final judgment on January 21, 2015. (CR. 24-

25). 

Vil 
POINTS OF ERROR PRESENTED 

POINT OF ERROR I 

THE TRIAL COURT ERRED BY GRANTING 

THE STATE'S MOTION FOR SUMMARY JUDGMENT 

viii 
TOM BENSON, 

Defendant-Surety, 

Appellant, 

vs. 

NO. 03-15-00121-CR 

IN THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AT AUSTIN, TEXAS 

THE STATE OF TEXAS, 

Appellee. 

APPELLANTS' BRIEF 

STATEMENT OF FACTS 

On November 29, 2013, Brian Roy Whipple, date ofbirth1 XX/XX/XXXX 

was released from jail on a bail bond in the amount of $5,000.00 for a 

misdemeanor offense, executed by Tom Benson, as Surety. (CR. 4-5). On 

February 14, 2014, Mr. Whipple, the defendant and the principal on the bond 

executed by the Surety, was required to personally appear in the County Court at 

Law No. 7 of Travis County. (CR. 4). He failed to appear as required. (CR. 4). 

A judgment nisi was properly issued. (CR. 4). On December 4, 2014, the State 

filed its Motion for Summary Judgment and summary judgment proof consisting 

1 Date of Birth has been redacted pursuant to Tex. R. Appellant P. 9. 
of the bond and the judgment nisi. (CR. 9-13). The State's motion requested a 

judgment for the penal sum of the bond $5,000.00 and court costs. After being 

properly served with citation, Surety answered2 with a general denial and asserted 

an affirmative defense provided by art. 22.13(a)(5)(A)3

• (CR. 14-15). The Surety 

filed a response to the State's Motion again asserting the affirmative defense under 

art. 22.13(a)(5)(A) that the Defendant-Principal, Brian Roy Whipple was 

incarcerated in the Clark County Detention Center, Las Vegas, Nevada on June 29, 

20144

, a jurisdiction within the United States, within 180 days from the date of his 

failure to appear, February 14, 2014. (CR. 16-20). The Surety provided additional 

summary judgment evidence which was attached to, and incorporated into, his 

response, in the form of documentary evidence (CR. 18 ,-i,-i 11 and 12) and (CR. 

21-23) and evidence provided by judicial notice. (CR. 18 ,-i,-i 11 and 13). The State 

did not file any reply to the Surety's response or summary judgment evidence. 

(CR. 1-45). The trial court granted the State's Motion for Summary Judgment and 

entered a final judgment against the Surety for $5,000.00 plus costs of court. (CR. 

2 Surety filed and Original Answer and a First Amended Answer. 

3 All statutory references are to Tex. Code Crim. Proc., unless otherwise noted. 

4 The date of birth for Brian Whipple who is the principal on the bail bond and Brian 

Whipple who was incarcerated in the Clark County Detention Center, Las Vegas, Nevada are 

identical. 

2 
24-25). No post judgment motions were filed. The Surety timely filed a notion of 

appeal. (CR. 26-28). This brief will be timely if filed on or before May 5, 2015. 

SUMMARY OF THE ARGUMENT 

POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING 

THE STATE'S MOTION FOR SUMMARY 

JUDGMENT 

1) Because the Trial Court was presented an the affirmative defense and 

summary judgment evidence supporting every element of the affirmative defense 

the Trial Court erred in granting the State's motion. 

ARGUMENT 

POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING 

THE STATE'S MOTION FOR SUMMARY 

JUDGMENT 

Standard of Review 

Summary judgment proceedings in a bail bond forfeiture case are governed 

by the same rules as in civil cases. Alvarez v. State, 861 S.W. 2d 878, 881 (Tex. 

Cr. App. 1992), citing, art. 22.10 and Tex. R. Civ. P. 166a(c). 

The Court reviews the summary judgment de novo. Joe v. Two Thirty Nine 

3 
Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). 

In this traditional summary judgment case, the issue on appeal is whether 

the State, as movant, met its summary judgment burden by establishing that no 

genuine issue of material fact exists and that the State is entitled to judgment as a 

matter oflaw. Tex. R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 

S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 

S.W.2d 671, 678 (Tex.1979). The burden of proof is on the State, and all doubts 

about the existence of a genuine issue of material fact are resolved against it. 

Southwestern Elec. Power Co., 73 S.W.3d at 215; Science Spectrum, Inc. v. 

Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San 

Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding 

whether there is a material fact issue precluding summary judgment, all conflicts 

in the evidence should be disregarded and the evidence favorable to the Surety, the 

nonmovant, should be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 

896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the State's position will not 

be considered unless it is uncontroverted. Great Am., supra, 391 S.W.2d at 47. 

When a defendant raises an affirmative defense in opposition to a motion 

for summary judgment, he must present sufficient summary judgment proof to 

raise a fact issue on each element of his affirmative defense. Nichols v. Smith, 507 

4 
S.W.2d 518, 520 (Tex. 1974); Palmer v. Enserch Corp., 728 S.W.2d 431, 436 

(Tex. App. -Austin 3rd Dist.1987, writ ref'd n.r.e.). 

Argument and Authority 

STATE PRESENTS PRIMA FACIE CASE 

The State unquestionably presented a prima facie case in its motion for 

summary judgment. The State was required to produce evidence of a bail bond 

and a judgment nisi. Alvarez, supra, 861S.W.2d at 880-881, 887, 889 citing, 

Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981); Tocher v. State, 517 

S.W.2d 299, 301 (Tex. Cr. App.1975); Deckard v. State, 605 S.W.2d 918 (Tex. Cr. 

App.1980). It did so. (CR. 12-13). 

BURDEN SHIFTS TO SURETY 

The burden then shifted to the Surety to respond to the State's Motion and if 

an affirmative defense is pied in his response it must be supported by summary 

judgment proof on every element of the affirmative defense. Nichols, supra, 507 

S.W.2d at 520; Palmer, supra, 728 S.W.2d at 436. (CR. 14). 

In his response, the Surety alleges that the Defendant-Principal, Brian Roy 

Whipple was incarcerated in the Clark County Detention Center, Las Vegas, 

Nevada, on June 29, 2014, a jurisdiction within the United States, and it was 

5 
within 180 days from the date of his failure to appear as required on February 14, 

2014 and that these facts give rise to an affirmative defense provided by art. 

22.13(a)(5)(A)(l). (CR. 17). 

AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5) 

The applicable language in Tex. Code Crim. Proc. art. 22.13 provides: 

"Art. 22.13. CAUSES WHICH WILL EXONERATE. 

(a) The following causes, and no other, will exonerate the defendant and his 

sureties, if any, from liability upon the forfeiture taken: ..... 

5. The incarceration of the principal in any jurisdiction in the United States: 

(A) in the case of a misdemeanor, at the time of or not later than the 180th day 

after the date of the principal 's failure to appear in court; 

(B) in the case of a felony, at the time of or not later than the 270th day after the 

date of the principal 's failure to appear in court. 

(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to 

pay costs of court, any reasonable and necessary costs incurred by a county to 

secure the return of the principal, and interest accrued on the bond amount from 

the date of the judgment nisi to the date of the principal 's incarceration. 

Although the statute does call it an affirmative defense it meets the 

definition of one. An affirmative defense does not seek to defend by merely 

6 
denying the plaintiff's claims, but rather seeks to establish "an independent reason 

why the plaintiff should not recover." Texas Bee/Cattle Co. v. Green, 921S.W.2d 

203, 212 (Tex. 1996) citing, 2 ROY W. McDONALD, TEXAS CIVIL PRACTICE 

§ 9:44, at 378 (1992). 

The affirmative defense provided by art. 22.13(a)(5)(A)(l) raised in 

Surety's amended answer5 and the response consist of the following elements: (1) 

Incarceration of principal on bond; (2) within any jurisdiction in the United States; 

(3) principal charged with misdemeanor; ( 4) Incarceration within 180 days from 

the date the principal fail to appear in court. 

SURETY'S SUMMARY JUDGMENT PROOF 

There is summary judgment proof in the record regarding each of the 

elements required by art. 22. l 3a)(5)(A): 

1. Incarceration of principal, Brian Roy Whipple. 

Supplied by Exhibit "l ",page 3 (CR. 23) which is an incarceration 

verification letter from the Sheriff of Clark County Nevada stating that (1) that 

Brian Whipple DOB: was incarcerated in the Clark County Detention 

Center, Las Vegas, Nevada; and (2) on June 29, 2014. The date of birth for Brian 

5 Surety requested the Trial Court to take judicial notice of his First Amended Answer. 

(CR.18, i/ 13 (6)). 

7 

XXXX
Whipple on the bail bond in this case is XX-XX-XXXX. (CR. 5 and 13). The 

date of birth specified in the incarceration verification letter and the date of birth 

specified on the bail bond in this case are the same. (CR. 5, 13 and 23). 

2. Within any jurisdiction in the United States. 

Supplied by requests for judicial notice that: Clark County is located in the 

State of Nevada; the City of Las Vegas, Nevada is located in Clark County; and 

both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions 

located within the United States. (CR. 18, ~ 13 (1 )(2)(3)). 

3. Principal, Brian Whipple is charged with a misdemeanor. 

Supplied by the judgment nisi. (CR. 4 and 12). 

4. Incarceration of Brian Whipple within 180 days from the date the he 

failed to appear in court. 

The date he failed to appear in Court was February 14, 2014, and this is 

shown on the judgment nisi. (CR. 4 and 12). The date of his incarceration was 

June 29, 2014. This is shown on Exhibit "1 ",page 3 (CR. 23). The Trial Court 

was requested to take judicial notice that the period of time between February 14, 

2014 and June 29, 2014 was less than 180 days. (CR. 18, ~ 13 (5). 

Reviewing this summary judgment evidence, the genuine issue of fact to be 

resolved by a trier of fact is whether or not the Brian Whipple specified in the 

8 
verification letter from the Sheriff of Clark County Nevada is the Brian Whipple 

that is the principal on the bond in this case. The date of birth, first and last name 

match, but there is no middle name specified. These matches create an inference 

supporting that the correct defendant is specified in the letter. The lack of a 

middle name creates an inference of doubt that the correct defendant is specified 

in the letter. For the purposes of the summary judgment only, the inferences are 

resolved in the favor of the Surety. "Every reasonable inference from the evidence 

must be indulged in favor of the non-movants and any doubts resolved in their 

favor." Alvarez, supra, 861 S.W. 2d at 881, citing, Montgomery v. Kennedy, 669 

S.W.2d 309, 311 (Tex.1984). Faced with these conflicting inferences, a material 

fact issue exists and the State's Motion should have been denied and the Trial 

Court erred by no doing so. 

RELIEF GRANTED BY TRIAL COURT 

The judgment entered by the Trial Court was for the face amount of the 

bond $5,000.00 plus costs of court. Art. 22. l 3(a)(5)(A) and the summary 

judgment proof presented, effectively mitigates the legal consequences of the 

State's prima facie case for forfeiture. Where the conditions specified in art. 

22.13(a)(5) are proved, the Surety is exonerated from liability of the forfeiture, 

except costs of court, any reasonable and necessary costs incurred by a county to 

9 
secure the return of the principal, and interest accrued on the bond amount from 

the date of the judgment nisi to the date of the principal 's incarceration. See art. 

22.13(b). The Trial Court of course will be free on remand to resolve the facts 

regarding the Surety's affirmative defense, and if proved, the amount of expenses, 

costs and interest the State is due. 

CONCLUSION 

Faced with the Surety's response6 and the summary judgment proof before 

the court, the only proper action was to deny the State's Motion. The case before 

this court is not to determine the correctness of, or application of, the Surety's 

affirmative defense, but the whether the Trial Court erred in granting the State's 

Motion in light of the surety's response and summary judgment evidence. 

At heart, this case is very simple. Granting a summary judgment despite a 

pled affirmative defense by the non-movant supported with summary judgment 

evidence is an error that caused the trial court to render an improper judgment 

which should be reversed and remanded to the trial court. 

REQUEST FOR RELIEF 

Appellant respectfully request that this Court reverse the judgment of the 

6 Surety did not move for summary judgment on his affirmative defense, leaving it to be 

resolved later. 

10 
trial court, remand the cause to the trial court and grant such other and further 

relief as to which he has shown himself entitled. 

Respectfully submitted, 

/s/ Tom Benson 

Tom Benson 

Texas State Bar No. 02170500 

900 Jackson St., Suite 750 

Dallas, Texas 75202-4461 

(214) 742-9898 Telephone 

(214) 742-9879 Fax 

tomrbenson@gmail.com 

APPELLANT PRO SE 

CERTIFICATE OF COMPLIANCE 

I certify that this document was produced on a computer using 

WordPerfectX7 and contains approximately 2,089 words as determined by the 

computer software's word-count function, excluding the sections of the document 

listed in Texas Rules of Appellate Procedure 9.4(i)(l). 

/s/ Tom Benson 

Tom Benson 

11 
CERTIFICATE OF SERVICE 

I certify that on May 6, 2015, a true and correct copy of the foregoing 

Appellants' Brief and Appendix as corrected was served on appellee's attorney, 

Tim Labadie, Assistant County Attorney by email to 

tim.labadie@traviscountytx.gov. 

Isl Tom Benson 

Tom Benson 

12 
APPELLANT'S APPENDIX 

ITEM 

Trial Court's Judgment dated January 21, 2015 

Tex. R. Civ. P. 166a(c) 

Tex. Code Crim. Proc. 22.10 

Tex. Code Crim. Proc. 22.13 

Bail Bond 

Letter from the Sheriff of Clark County Nevada 

State's Motion For Summary Judgment and proof 

Surety's First Amended Original Answer 

Surety's Summary Judgment Response and proof 

13 

BOOKMARK NO. 

1 

2 

3 

4 

5 

6 

7 

8 

9 
... 

NO. C-1-CV-14-002294 FILED f OR RECO~D 

(CRIMINAL NO. C-1-CR-13-501684). 

ZOl5 JAN 21 AH 9: Otl 

THE STATE OF TEXAS 

v. 

BRIAN ROY WHIPPLE and 

TOM BENSON 

§ COifJ°tiTY COURT AT LAW 

§ "'NA OcSEAUVo,., 

COUNTY CLERK 

§ TRAVIS COUNTY, TEXAsNO. 7 

§ 

§ 

§ 

FINAL JUDGMENT 

TRAVIS COUNTY, TEXAS 

On this day, the Court heard Plaintiff's Motion for Summary Judgment, 

considered the summary judgment evidence, which included a certified copy of the 

bond made on August 29, 2013, by Brian Roy Whipple, as Principal, and Tom Benson, 

as Surety, payable to the State of Texas in the amount of $5,000.00 and a certified copy 

of the order forfeiting that bond. The Court finds from the evidence that this bond 

forfeited on February 14, 2014, when Brian Roy Whipple failed to appear in court in 

cause number C-1-CR-13-501684 after his/her name was distinctly called at the 

courthouse door. I llllll lllll lllll lllll 111111111111111111111111111111111 

000939084 

The Court therefore finds that the evidence establishes as a matter of law there 

are no genuine issues of material fact as to any of the elements of the State's cause of 

action and grants Plaintiff's Motion for Summary Judgment. 

The Court also finds from its file that citation was served on Brian Roy Whipple, 

Principal-Defendant, and returned in accordance with Chapter 22 of the Code of Criminal 

Procedure. The Court further finds that Brian Roy Whipple failed to appear or answer 

within the time prescribed by law, and is in default. Further, the citation served, with the 

321316 FINAL JUDGMENT (SURETY BOND)- PAGE 1 

Appellants Brief Page 014 
• 

officer's return thereon, has been on file with the Clerk of the Court for at least ten days 

exclusive of the day of filing and the day of judgment. 

Therefore, the Court orders that: 

1. The State of Texas, through its County Attorney of Travis County, recover, 

jointly and severally, the sum of $5,000.00 from Brian Roy Whipple, as 

Principal-Defendant, and Tom Benson, as Surety-Defendant; 

2. Costs of suit are taxed against Brian Roy Whipple and Tom Benson, jointly and 

severally; 

3. The State of Texas, shall have all writs of execution and other process necessary 

to enforce this judgment; and 

4. This judgment finally disposes of all claims and all parties and is appealable. 

SIGNED January 21, 2015. 

CERTIFICATE OF LAST KNOWN ADDRESS 

I, Tim Labadie, attorney of record for the State of Texas, Plaintiff, hereby certify 

by my signature below that the last known address of Brian Roy Whipple is 1405 N 

Interstate 35, Round Rock, TX 78664-2924. 

Assistant County Attorney 

321316 FINAL JUDGMENT (SURETY BOND)- PAGE 2 

Appellants Brief Page 015 
RULE 166a(c). SUMMARY JUDGMENT 

( c) Motion and Proceedings Thereon. The motion for summary judgment shall 

state the specific grounds therefor. Except on leave of court, with notice to 

opposing counsel, the motion and any supporting affidavits shall be filed and 

served at least twenty-one days before the time specified for hearing. Except on 

leave of court, the adverse party, not later than seven days prior to the day of 

hearing may file and serve opposing affidavits or other written response. No oral 

testimony shall be received at the hearing. The judgment sought shall be rendered 

forthwith if (i) the deposition transcripts, interrogatory answers, and other 

discovery responses referenced or set forth in the motion or response, and (ii) the 

pleadings, admissions, affidavits, stipulations of the parties, and authenticated or 

certified public records, if any, on file at the time of the hearing, or filed thereafter 

and before judgment with permission of the court, show that, except as to the 

amount of damages, there is no genuine issue as to any material fact and the 

moving party is entitled to judgment as a matter of law on the issues expressly set 

out in the motion or in an answer or any other response. Issues not expressly 

presented to the trial court by written motion, answer or other response shall 

not be considered on appeal as grounds for reversal. A summary judgment may be 

based on uncontroverted testimonial evidence of an interested witness, or of an 

Appellants Brief Page 016 
expert witness as to subject matter concerning which the trier of fact must be 

guided solely by the opinion testimony of experts, if the evidence is clear, positive 

and direct, otherwise credible and free from contradictions and inconsistencies, 

and could have been readily controverted. 

Appellants Brief Page 017 
TEXAS CODE OF CRIMINAL PROCEDURE 

ARTICLE 22.10 

Art. 22.10. SCIRE FACIAS DOCKET. When a forfeiture has been 

declared upon a bond, the court or clerk shall docket the case upon 

the scire facias or upon the civil docket, in the name of the State 

of Texas, as plaintiff, and the principal and his sureties, if any, 

as defendants; and, except as otherwise provided by this chapter, 

the proceedings had therein shall be governed by the same rules 

governing other civil suits. 

Appellants Brief Page 018 
TEXAS CODE OF CRIMINAL PROCEDURE 

ARTICLE 22.13 

Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The following 

causes, and no other, will exonerate the defendant and his sureties, if any, from 

liability upon the forfeiture taken: 

1. That the bond is, for any cause, not a valid and binding undertaking in law. If it 

be valid and binding as to the principal, and one or more of his sureties, if any, 

they shall not be exonerated from liability because of its being invalid and not 

binding as to another surety or sureties, if any. If it be invalid and not binding as to 

the principal, each of the sureties, if any, shall be exonerated from liability. If it be 

valid and binding as to the principal, but not so as to the sureties, if any, the 

principal shall not be exonerated, but the sureties, if any, shall be. 

2. The death of the principal before the forfeiture was taken. 

3. The sickness of the principal or some uncontrollable circumstance which 

prevented his appearance at court, and it must, in every such case, be shown that 

his failure to appear arose from no fault on his part. The causes mentioned in this 

subdivision shall not be deemed sufficient to exonerate the principal and his 

sureties, if any, unless such principal appear before final judgment on the bond to 

answer the accusation against him, or show sufficient cause for not so appearing. 

Appellants Brief Page 019 
4. Failure to present an indictment or information at the first term of the court 

which may be held after the principal has been admitted to bail, in case where the 

party was bound over before indictment or information, and the prosecution has 

not been continued by order of the court. 

5. The incarceration of the principal in any jurisdiction in the United States: 

(A) in the case of a misdemeanor, at the time of or not later than the 180th day 

after the date of the principal 's failure to appear in court; or 

(B) in the case of a felony, at the time of or not later than the 270th day after the 

date of the principal 's failure to appear in court. 

(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to 

pay costs of court, any reasonable and necessary costs incurred by a county to 

secure the return of the principal, and interest accrued on the bond amount from 

the date of the judgment nisi to the date of the principal 's incarceration. 

Appellants Brief Page 020 
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Appellants Brief Page 021 

XXXXXXXXXXXX
.. 

XXX
NO. C-1-CV-14--002294 

(CRIMINAL NO. C-1-CR-13-501684) 

Filed: 12/4/201412:42:36 PM 

Dana DeBeauvoir 

Travis County Clerk 

C-1-CV-14-002294 

Anita Durar 

THE ST ATE OF TEXAS § 

§ 

§ 

§ 

§ 

§ 

COUN1YCOURTATLAW 

v. N0.7 

BRIAN ROY WHIPPLE and 

TOM BENSON TRAVIS COUNlY, TEXAS 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 

TO THE HONORABLE COURT: 

Plaintiff, the State of Texas, files this motion for summary judgment1 and in 

support thereof would respectfully show the Court the following: 

I. INTRODUCTION 

This is a bond forfeiture proceeding brought by the State of Texas pursuant to 

Tex. Code Crim. Pro. article 22.02 In order to be entitled to a forfeiture of a bond, 

Plaintiff must show (1) a valid bond executed by the surety; (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. Burns v. State, 861 S.W.2d 878, 888 (Tex. 

Crim. App. 1993). 

The summary judgment evidence, which is comprised of the appearance bond 

executed by Defendants2 and the order forfeiting that bond,3 establishes each of these 

elements as a matter of law. The bond establishes the first element of the State's bond 

forfeiture suit and the Judgment Nisi is priina fade proof that of the second and third 

2 

3 

321313 

Brian Roy Whipple was served with citation, has not made an appearance and is in default 

A certified copy of the bond is attached hereto as Exhibit A. 

A certified copy of the Judgment Nisi is attached hereto as Exhibit 8. 

Pl.AINTin's MOTION FOR SUMMARY JUDGMENT (SURETY BoNo)- PACI 1 

Appellants Brief Page 023 

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elements. Burns v. State, 861 S.W.2d at 887. Thus, the court must presume that the 

Judgment Nisi is in accordance with the statutory requirements, unless it affirmatively 

appears otherwise. Id. 

IL THE SUMMARY JUDGMENT EVIDENCE 

On August 29, 2013, Brian Roy Whipple, as Principal, and Tom Benson, as 

Surety, executed a bond payable to the State of Texas in the amount of $5,000.00.• This 

bond, which was a valid and binding undertaking in law, was conditioned on Brian 

Roy Whipple's personal appearance before the county court of Travis County in cause 

no. C-1-CR-13-501684.5 On February 14, 2014, Brian Roy Whipple failed to appear when 

this case was called for triaJ.6 Thereafter, Brian Roy Whipple's name was called 

distinctly at the door of the courthouse and he was given a reasonable time after which 

to appear.7 Brian Roy Whipple, however, failed to appear and the bond made by 

Defendants was forfeited.& 

This evidence establishes as a matter of law there are no genuine issues of 

material fact as to any of the elements of the State's cause of action. 

IIL PRAYER 

The State of Texas, Plaintiff, respectfully requests that the Court grant this 

motion and render judgment against Brian Roy Whipple, as Principal, and Tom Benson, 

as Surety, jointly and severally, in the amount of $5,000.00 plus court costs. 

4 See Exhibit A. 

5 See Exhibit A. 

6 See Exhibit B. 

1 See Exhibit B. 

8 See Exhibit B. 

321313 

PlAJNTJpp'5 MonoN l'OR SUMMAR\' JU0CM1!flrt' (SuaEn BoNo)- PAGI! 2 

Appellants Brief Page 024 
Respectfully submitted, 

DAVID ESCAMILLA 

TRAVIS~CO ATIO~ c..-.9 •• 

By: 

Ti badie 

Assistant Travis County Attorney 

State Bar No. 11784853 

P.O. Box 1(48 

Austin, TeXa5 78767 

(512) 854-9513 

(512) 854-4808 (fax) 

NOTICE OF HEARING 

Plaintiff's Motion for Summary Judgment is set for hearing on January 21, 2015 

at9:00a.m. ~-...C.. 

· badie 

CERTIFICATE OF SERVICE 

I hereby certify by my signature above that, on December 4, 2014 and in 

accordance with the Texas Rules of Civil Procedure 21 and 21a, a true and correct copy 

of the foregoing was served by fax on: 

Mr. Tom Benson 

900 Jackson Street, Suite 750 

Dallas, Texas 75202 

Fax - 214-742-9879 

321313 

Pu.INTln'S ManON l'Oll SUMMARY }UDCM!NT (Suun BoND)- PACE 3 

Appellants Brief Page 025 
nm STATE OF TEXAS 

vs. 

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.DJDGMr.NT Niii 

Filed: 3fl112014 3:57'.54 PM 

Dana OeBeewoir 

Travis Coun~ Clefk 

C-1-CV-14.oo229' 

Guy Oeles9io 

COUN1Y COUltT AT LAW 

N0.7 

TRAVIS COUNTY, TEXAS 

On Pcbl_,- 14, 2014, C1U1C ..._ C·l-cR.·13-501614 W8S calW for trill. Tiii Sllle 

of Tam.,,..... "1 ill County Aaamey. 'Ille DeCcadanl. Brian Roy Whipple. failed to IPPCll' 

... 

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w. 'l1la9upoa, ... DetcadMll'• --,,. called dbtiDcdy Ill dw door of Ibo 

IDCI ..,...,_ aiYeft a llllDGIWe time eo..,,_. However, the Defcndlnt fliJed to 

......... wboll, ............ 

Tbe Coult &m dllt die DdwiA-., 8ri1D Ito)' Wbipple. • pinGipll.10pdler wida Tom 

Im (dbl NA F• a.ii Ba.di).• ..-y, on Nov.bcr 29, 2013, exadld a bond payable 

to dle-ofTCIUI in tht .... MD of SS.000.00 conditiaald dlll the Defendllll, • priaeipil. 

mouJd -a..._,__. ........ Wen the County Coult Ill Law No. 7, Tmvil Coant)', 

Tam. • tbl Tmll CGmll)' ~ in Amdn. Tcua. Ill its ...... -... now in -.iola, ...._,, 11111 tbae ...m hm-,. ro day llld tam to 111m of dlil Cowt mlil ~by 

dae oourll of law, IO __.die S.. of Texas upon a chlll' b)' coq>lliat and infonmlion .._. ftled eccum. IUmlhc:rortbe.,.,.. mlldaamwr olfeme: 

FALSE STATEMENT FOR PROPERTY/CREDIT. 

The Coult ..... doc'- ....... ~ bond is folftiled. The Coan 

ORDERS dllt lbe S.. of Tew aeccwer hm Brim Ito)' Wldpple, priDcipll. and Tom Bcmoa. 

IURll)', 1hc MD of SS,000.00 IDCI dllt 1IU judplmt .U lie IDldc ftall Ullea pd CIUIC lie 

.,... ...., .. Ddendlnt did - r· 

Sipedoa ty/,~~ v( ~{ 0 

McnilJ lir ... Sllle ofTeua: 

Dlvill A. Ela•Bll. TNVil CGallly AllDnlly 

P.O.la1741 

MMi1a. TX 71767 ..... (512)154-9513 

Fax: (512) 154 tlOI 

11111111111111 

000840518 

BOND LD. msH VOL. ___ PAOE __ _ 

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Appellants Brief Page 026 

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Appellants Brief Page 027 

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.. • • 

C-1-CV-14-002294 

Ne. C 1 14 09229~ 

(CRIMINAL No. 1-CR-13-501684) 

Filed: 1/13/2015 5:33:22 PM 

Dana DeBeauvoir 

Travis County Clerk 

C-1-CV-14-002294 

Andrea Scott 

THE STATE OF TEXAS § 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE COUNTY COURT 

vs. 

BRIAN ROY WHIPPLE and 

TOM BENSON 

DEFENDA."IT'S 

AT LAW No. 7 

TRAVIS COUNTY, TEXAS 

FIRST AMENDED ORIGINAL ANSWER 

Defendant, Tom Benson, files his First Ame.nded Original Answer. 

A. General Denial 

1. Defendant generally denies the allegations of plaintiff. 

B. Affinnative Defense 

2. Defendant is not liable to plaintiff for the amount of the bond pursuant to art. 

22.13(a)(5)(A) TEX. CODE CRIM. PROC., because the Defendant-Principal, Brian Roy Whipple, 

was incarcerated in the Clark County Detention Center. Las Vegas, Nevada, a jurisdiction within 

the United States, within 180 days from the date of bis failure to appear as required on February 

14, 2014. 

C. Prayer 

3. For these reasons, defendant asked the Court render judgment that plaintiff be awarded 

only, costs of court, any reasonable and necessary costs incurred by a county to secure the return 

of the principal, and interest accrued on the bond amount from the date of the judgment nisi to 

the date of the principal 's incarceration as provided in art. 22.13(5)(b) TEX. CODE CRIM. PROC., 

and award all other relief to which defendant is entitled. 

Defendant's First Amended Original Answer - Page l of 2 Pages 

Case # C-1-CV-14-002294 

1111111111111111111111111111111111111111111111111111111 

Appellants Brief Page 028 
• 

Respectfully submitted, 

Isl Tom Benson 

Tom Benson, Prose 

Defendant-Surety 

900 Jackson Street, Suite 750 

Dallas, Texas 75202 

Tex.as Bar l.D. 02170500 

(214) 742-9898 

(214) 742-9879 FAX 

tomrbenson@gmail.com 

CERTIFICATE OF SERVICE 

I certify that I have on this 13th day of January, 2015, before S:OO P.M., caused a true 

and correct copy of the foregoing Defendant's First Amended Original Answer to be delivered to 

Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov. 

Isl Tom Benson 

Tom Benson 

Defendant's First Amended Original Answer-Page 2 of2 Pages 

Appellants Brief Page 029 
C-1-CV-14-002294 

Ne. C 1 14 992194 

(CRIMINAL No. 1-CR~13-501684) 

Filed: 1/13/2015 5:42:49 PM 

Dana DeBeauvoir 

Travis County Clerk 

C-1-CV-14-002294 

Andrea Scott 

THE STA TE OF TEXAS § IN THE COUNTY COURT 

§ 

vs. § 

§ AT LAW No. 7 

BRIAN ROY WHIPPLE and § 

TOM BENSON § 

§ TR.A VIS COUNTY, TEXAS 

DEFENDANT'S RESPONSE TO 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND 

REQUESTS FOR COVRTTO TAKE JUDICIAL NOTICE 

Defendant asks the court to deny pla.intifrs motion for summary judgment and to take 

Judicial Notice as requested herein. 

A. Introduction 

1. Plaintiff is The State of Texas; defendant is Tom Benson. 

2. Plaintiff sued defendant for forfeiture of a bail bond in a criminal case. 

\ 

3. Defendant answered asserting a general denial and an affirmative defense under art. 

22.13(a)(5){A) that the Defendant-Principal, Brian Roy Whipple was incarcerated in the Clark 

County Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, within 

180 days from the date ofhis failure to appear as required on February 14, 2014. 

B. Facts 

4. Plaintiff filed a motion for summary judgment based on its cause of actfon for forfeiture 

of a bail bond in a criminal case. 

S. Defendant attaches Exhibit 1 to establish facts not apparent from the record and 

incorporates it by reference. 

Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take 

Judicial Notice- Page I ofS Pages 

Case # C-1-CV-14-002294 

Appellants Brief Page 0301111111111111111111111111111111111111111111111111111111 

\\(:> 
C. Argument & Authorities 

6. In deciding whether there is a disputed issue of material fact that precludes summary 

judgment, the court takes as true all evidence favorable to the nonmovant. Limestone Prods. Distrib., 

Inc. v. McNamara, 11 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S. W.2d 217, 

223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court 

must view the evidence in the light most favorable to the nonmovant and must indulge every 

reasonable inference and resolve a ti doubts in favor of the nonmovant. Limestone Prods., 71 S. W .3d 

at 311; Nixon, 690 S.W.2d at 549. 

7. The court should denyplaintiff s motion for summary judgment because defendant's answer 

asserts the affirmative defense of the incarceration of the Defendant-Principal on the bond, Brian 

Roy Whipple in the Clark County Detention Center, Las Vegas, Nevada, a jurisdiction within the 

United States, within 180 days from the date of his failure to appear as required on February 14, 

2014. This defense is provided by art. 22.13(5)(A)(I) TE.x. CODE CRIM. PROC. 

8. The summary-judgment evidence attached to this response by defendant has created a fact 

issue on each element of his affirmative defense. Bassett v. Am. Nat'l Bank, 145 S.W.3d 692, 696 

(Tex. App.-Fort Worth 2004, no pet.}; see Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 

1984). 

9. Defendant's affirmative defense consists of the following elements: (1) Incarceration of 

principal on bond; (2) within any jurisdiction in the United States; (3) principal charged with 

misdemeanor; (4) Incarceration within 180 days from the date the principal fail to appear in court. 

1 O. The .smnmary-judgment evidence raises a fact issue on each element of the affirmative 

defense. 

Defendant's Response to Plaintiffs Motion for Summary Judgment and Requests to take 

Judicial Notice - Page 2 of S Pages 

Appellants Brief Page 031 \<\ 
D. Summary-Judgment Evidence 

11. Defendant includes the summary·judgment evidence attached to this response and 

incorporates the evidence into this response by reference. 

12. This response depends on the following documentary evidence: 

Documentary evidence. "Exhibit l ", which is verified as authentic, establish the 

following facts: 

( 1) that Brian Whipple DOB: was incarcerated in the Clark County Detention 

Center, Las Vegas, Nevada; and 

(2) on June 29, 2014. 

13. This response additionally depends on the following evidence provided by judicial notice: 

,f udlclal Notice. Defendant requests the Court to take judicial notice : 

(1) that Clark County is located in the State of Nevada; 

(2) that the Cjty of Las Vegas, Nevada is located in Clark County~ 

(3) that both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions 

located within the United States; 

(4) that the defendant-principal Brian Roy Whipple failed to appear when required in 

court on February 14, 2014; 

(5) that the number of days between February 14, 2014 and June 291 2014 is less that 

180 days; 

(6) of the Defendant's First Amended Original Answer filed in this case; and 

(7) that the principal Brian Roy Whipple's date of birth specified on the bond that is the 

subject matter of this suit is . 

Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take 

Judicial Notice - Page 3 of 5 Pages 

Appellants Brief Page 032 ,ro 

XXXXX XXXXXX
E. Conclusion 

14. Because the Defendant· Principal, Brian Roy Whipple was incarcerated in the Clark County 

Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, on June 29, 2014, 

which within 180 days from the date of his failure to appear on February 14, 20l4, the State is not 

entitled to recover $5 ,000.00. It is only entitled to recover costs of court and interest accrued on the 

bond amount ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June 

29, 2014 (the date of the principal 's incarceration). Had the State provided any summary judgment 

proof of any reasonable and necessary costs incurred by a county to secure the return of the principal 

it would have been entitled to these costs also but there is no evidence before the Court of these 

costs and therefore the State is not entitled to them. 

F. Prayer 

1 S. For these reasons, defendant asks the court to denyplaintiff"s motion for summary judgment 

or aJternariveJy, enter a judgment only for costs of coun and jnterest accrued on the bond amount 

ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June 29, 2014 (the 

date of the principal 's incarceration). 

Respectfully submitted, 

Isl Tom Benson 

Tom Benson, Prose 

Defendant-Surety 

900 Jackson Street, Suite 750 

Dallas, Texas 75202 

Texas Bar l.D. 02170500 

(214) 742-9898 

(214) 742-9879 FAX 

tomrbenson@gmail.com 

Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take 

Judicial Notice - Page 4 of 5 Pages 

Appellants Brief Page 033 

'°' 
CERTIFICATE OF SERVICE 

I certify that I have on this 13th day of January, 2015, before 5:00 P .M., caused a true and 

correct copy of the foregoing Defendant's Response to State's Motion for Summary Judgment with 

attachments to be delivered to Tim Labadie, Assistant Travis County Attorney by email to: 

tim.labadie@traviscountytx.gov. 

Isl Tom Benson 

Tom Benson 

Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take 

Judicial Notice - Page 5 of S Pages 

Appellants Brief Page 034 
~IBIT "I" (Three Pages) 

No. C·l-14~002294 

(CRIMINAL No. 1-CR-13-501684) 

THE STA TE OF TEXAS § JN THE COUNTY COURT 

§ 

vs. § 

§ ATLAWNo. 7 

BRIAN ROY WHIPPLE and § 

TOM BENSON § 

§ TRA VlS COUNTY, TEXAS 

BUSINIJSS RECQRD AFFIDA VJT 

Before me, the tDldersigned authority, personally appeared Tom Ben.~on, who 

being by me duly sworn, deposed as follows: 

"My name is Tom Benson, 1 am of sound mind, capable of making this affidavit, and 

personally acquainted with the facts herein stated: 

I am the cust.00.ian of the records of Tom Benson dlb/a Act Fast Bail Bonds of Fort 

Worth, Texas. Attached hereto is one page of records from Tom Benson d/b/a Act Fast 

Bail Bonds of Fort Worth, Tex.as. The said one page of records are kept by Tom Benson 

d/b/a Act Fast Bail Bonds of Fort Worth, Texas in the regular course of business, and it 

was the regular practice of said entity for an employee or representative with knowledge 

of the act, event, condition, opinion, or diagnosis, recorded to make the record or to 

transmit infonnation thereof to be included in such record; and the record was made at or 

near the time or reasonably soon thereafter. The record attached hereto is the original or 

an exact duplicate of the original." 

..:.._._ ...... ..,.om Benson 

SWORN TO AND SUBSCRIBED before me on the 6th day of January, 2015. 

.. N'7tOty lfllCIA•- ftUbllc. Stote of Tete• V Mv~o~ntJ NOTARY PUB.Lie 

Business Record Affidavit • Page 1 of 1 Pages 

Appellants Brief Page 035 rv\ 
' . 

CERTIFICATE OF SERVICE 

I certify that I have on this 6th day of January. 2015, before 5:00 P.M., caused a 

true and correct copy of the foregoing Business Record Affidavit with one attached page 

to be delivered by fax to: (512) S84 1888 for Tim Labadie, Assistant Travis County 854-4808 

Attorney. 

Business Record Affidavit • Page 2 of 2 Pages 

Appellants Brief Page 036 

tl 1.; 

v 
XXX