## In the Court of Appeals Second App ellate District of Texas

at Fort Worth

____________

_______________ No. 02

- 21

- 00013

- CV

_ __ ________________________

On Appeal from the 30th District Court Wichita County, Texas Trial Cou rt No. 190,340

- A
Concurring Memorandum Opi nion by Justice Walker 

### M AXIE 

### D. G REEN D 

### / B 

### / A 

### A TO 

### Z B AIL 

### B ONDS 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS 

### , Appellee2 CONCURRING MEMORANDUM OPINI ON Summary

- judgme nt proce dure is precise and distinctive

. On ce a party moves for a summary judgment, a court must close its regular p lay book and pr ocee d under

t he summary

- judgment rule ’ s narrow confines. But this principle is a s it should be

. A f ter all , a summary judgment stops a case in its tracks before it reaches a fact

- finder. In essence, a summary judgment decrees that a dispute has no facts to f ind and, thu s , is not entitled to a fact

- finder. Ac cordingly, and as the majority explains, the standa rd
of review must be caref

ully followed.
A pplication of that standard he re reveals that the State failed to establish as a matter of law that there was no fact i ssu e on an essential element of its case for
forfeiture

— the principal ’ s name was “ called d istinctly at the c ourt house door ” before the provision al judgment was entered. Tex. Code Crim. Proc. Ann. art. 2 2.02 ; see Safety Nat ’ l Cas. Corp. v. State , 273 S.W. 3 d 1 57, 163 (Tex. Crim. App. 200 8) (describing judgment nisi as a provision al judgm ent that may later become final )

. T h us, I agree that the summary judgment must be reversed and that the State ’ s case must be
remand ed for further pro ceedings under Ch apter 2 2 o f the Cod e of Criminal
Proce dure. I write separately in order to st ress the na ture of ba il

- forfeiture
pr oceedings and its interaction with civil summary

- judgme nt procedure. See Tex.
Code Crim. Proc. Ann. art. 22.10 (providing civil

- suit rules apply to bo nd

- forfeiture proceedings).3

To be entitled to a traditional summary judgment o n its affirmati ve claim fo r relief , the State had to carry the initial burden to conclusively prove by competent
summary

- judgment evidence that , as a matter of law, there wer e n o genuine issues of
material fact con c erning each element of its claim

. Tex. R. Civ. P. 166a (a), (c); JLB
Bu ilders, L.L. C. v. Hernandez , 622 S.W.3d 860, 864 (Tex. 202 1) ; Nichols v. Smith , 507 S.W.2d 518, 520 (Te x. 1974); Gibbs v. Gen. Motors Co rp. , 450 S.W .2d 827, 828 (Tex. 1970)

. And import an t ly in this case, we view t he evidence in the light most favorable

to the sure ty and resolve any doubts aga inst the motion

. See Eagle Oil & G a s Co. v. TRO

- X, L.P. , 619 S.W.3d 699, 705 (Tex. 2021).
T he S t ate ’ s bon d

- f

orfeiture cause of action had three elements: (1) a valid bond

exe cuted by the surety, (2) the principal ’ s name was c alled distinctly at the co urt house
door , and (3) the pri ncipal failed to appear within a reasonable time of that call

. Alv arez v. State , 8 61 S.W.2d 878, 88 7 (Tex. Crim. App. 1992) (op . on r eh ’ g)

. Our cas e

turns on the second element: Did the S t ate conclu sively establish as a matt er of law
that the p rincipal ’ s name was called distinctly at the courthouse door? As the majo rity

r e c ognize s, th e judgment nisi, which is prima facie proof of the statutory eleme nts, reflects that the principal ’ s name was called at the court room door. And the deemed

a dmission follow s suit, admitting only that the princi pal ’ s name was called at the

court room door

. See generally Tex. R. Civ. P. 198.3 (explaining e ff ect of deemed admission). T he State ’ s summary

- ju dgment evidence shows that it did not conclusively establish that the principal ’ s name was called at the court house door as4

required ; thu s, the surety w a s n ot r e quired to come forward with contradictory
evid ence on this element of the State ’ s case . 1 See Swilley , 488 S.W.2d at 67

– 68

. A t first glance, this result appears captious , pu tting f orm over function. After all, courthouse struc ture is vas tly diffe rent no w than at the inception of the bond

forfeitur e statute s over 100 years ago . Se e Alvarez , 861 S.W.2d at 885 n.3 ( Overstreet, J., concurring and dissenting on orig. submission) ; Gen. Bonding & Cas. Ins. Co. v. State , 165 S.W. 615, 6 16 , 619 (

Tex. C rim . App. 1913) ; Harold Don Teague, Com ment, The
Admi nistrat ion of Bail and Pre trial F

ree do m i n Texas , 43 Tex. L. Rev. 356, 360 & n.30 ( 1965)

. In a modern courthouse, c a lling a principal ’ s name at the court room door
where s he was specific ally cited to appea r would seem more eff icacious than

tr aversing mu ltiple floors to do so at the d oor to the entire courthouse. And i n some insta nces , calling the defendant ’ s na me in the courtroom is consi dered sufficient , which could lead to confusion fo r the bench and bar ali ke

. See, e.g. , Kombudo v. State , 148 S.W.3d 547, 550 (Tex. App.

— Houst on [14th Dist.] 2004) (discussing reasonable

excuse defense to bail jumping) , rev ’ d on other grounds , 171 S.W.3d 888, 889 (Tex. Crim. App. 2005) ; Walker v. State , No. 01

- 98

- 0 0827

- CR , 1999 WL 1240 921, at *2 (Tex. App

. — Ho uston [1st Dist.] Dec. 23, 1999, pet. ref ’ d ) (not designated for publication)

1 Even if the certification of call were considered , it wou ld not change the result he re. I f th e administrator ’ s statemen t that the call was condu ct ed in compliance w ith A r ticle 22.02 w as sufficient to establish that the princip al ’ s name was called at the courthouse door, that statement would be juxta posed to th e judgm ent nisi and the admi ssion that the call occur red at the courtroom door. Thus, t he S t ate would not ha ve establi shed this element as a matter of law. See, e.g. , Swilley v. Hughes , 488 S.W.2 d 6 4, 67 (Tex. 1972)

.5

(holding evidence legally sufficient to support bail

- jump ing conviction partially based

on ev idence that appellant ’ s name had been ca lled thre e time s at c ourtroom door on
appeara nce date wi t h no response ) ; A spilla v. Sta te , 952 S.W.2d 610, 61 2

– 1 3 (Tex. App.

— Houston [14th Dist.] 1997, no pet.) ( holding in review of final for feiture judgment that calling principal ’ s name at the courtroom door was substantiall y compliant wi th Article 22.02 )

. B ut “ [ u]ntil the Legislature cha nges it, the statute requires that the principal ’ s name be called at the courthouse door, period. ” Alvarez , 861 S.W.2d at 884 ; see also Timmins v. State , 601 S.W.3d 345 , 348 (Te x. Cr im. App

. 2020) (holding court s “ ordinarily give effect to [pl ain] meaning ” w he n construing

statut es )

. The S t ate did not establish this element as a matter of law , and an y inqui ry into substantial compliance would prematurely shift the summa r y
- judgmen t burden

awa y from the S t ate to conc lusively es ta blish its statutory cause of action

. See Alvarez , 861 S.W.2d at 88 4

– 8 5 ; cf. Bennett v. State , 394 S.W.2d 804 , 807 (Tex. Crim . A pp. 1965) (discussing subst antial compliance in the cont ext of final f orfeiture judgment) ; A spilla , 952 S.W.2d at 6 1 2

– 1 3 (s ame )

. With th ese clarifying com ments, I concur in this court ’ s judgment.

/s/ Brian Walker
Brian Walker Justice
Delivered: D ecember 2, 2021