IN THE

TENTH COURT OF APPEALS

No. 10-08-00396-CR

CHRISTOPHER SPEARS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 07-05226-CRM-CCL2

MEMORANDUM OPINION

Christopher Spears appeals the granting of a summary judgment in favor of the 

state of Texas on a bond forfeiture proceeding. Spears contends that the trial court 

erred in refusing to grant his request for an arrest warrant, in finding that the evidence 

was insufficient to demonstrate cause for the issuance of a warrant, and in not finding 

in favor of his affirmative defense pursuant to Texas Code of Criminal Procedure article 

17.19(b). TEX. CODE CRIM. PROC. ANN. art. 17.19(b) (Vernon Supp. 2009). Because we 

find that the trial court erred in granting the State’s motion for summary judgment, we 

reverse the judgment of the trial court and remand for further proceedings.
Spears v. State Page 2

As the movant for summary judgment, the State had the burden of establishing 

that there were no genuine issues of material fact as to any of the elements of the State's 

cause of action, which the State proved by the bond and the judgment nisi. Alvarez v. 

State, 861 S.W.2d 878, 887 (Tex. Crim. App. 1993) (opinion on reh'g). The burden then 

shifted to Spears to raise a fact issue on the affirmative defense set forth in article 

17.19(b). Id. at 889 n.5. An affirmative defense will prevent the granting of a summary 

judgment only if each element of the affirmative defense is raised by competent 

summary judgment evidence. Hill v. State, 955 S.W.2d 96, 101 (Tex. Crim. App. 1997). 

Every reasonable inference from the evidence must be indulged in favor of the nonmovant, and any doubts must be resolved in the non-movant's favor. Alvarez, 861 

S.W.2d at 887.

Article 17.19(b) is an affirmative defense to liability on a forfeiture. In order to 

defeat the State’s motion for summary judgment, Spears must show that (1) the court or 

magistrate refused to issue a capias or warrant for the arrest of the principal; and (2)

after the refusal to issue the capias or warrant of arrest, the principal failed to appear. 

TEX. CODE CRIM. PROC. ANN. art. 17.19(b) (Vernon Supp. 2009). In addition, Spears must 

show that he filed an affidavit in strict compliance with article 17.19(a). See Hernden v. 

State, 865 S.W.2d 521, 523 (Tex. App.—San Antonio 1993, no writ).

Spears complains that the trial court denied his request to issue a warrant for the 

principal after he filed his affidavit because it was mandatory that the trial court do so. 

Spears also contends that his affidavit was sufficient to comply with article 17.19(a). A 

trial court has no authority to refuse to issue a warrant for a principal after a surety has 
Spears v. State Page 3

properly presented an affidavit pursuant to article 17.19. See, e.g., McConathy v. State, 

545 S.W.2d 166, 168 (Tex. Crim. App. 1977). 

The primary issue, then, is whether the affidavit filed by Spears complies with 

article 17.19(a). Article 17.19(a) sets forth the requirements for an affidavit to be filed 

when a surety desires to be released from his obligation, including the court and cause 

number, the name of the defendant and the offense charged, the date of the bond, the 

reason for surrender, and that the required notice has been given. TEX. CODE CRIM.

PROC. ANN. art. 17.19(a) (Vernon Supp. 2009). Spears did file an affidavit, and it is 

undisputed that the trial court denied his request for the issuance of a warrant.

The State contends that Spears’s affidavit was insufficient in that it did not state 

that Spears had personal knowledge of the contents of the affidavit, did not state 

whether the acts to maintain the bond were required of the principal, and that it did not 

state sufficient cause for the trial court to issue the warrant. The State also contends that

the proper standard for determining “cause” is probable cause. The State does not 

challenge the affidavit regarding the other requirements of article 17.19(a) and we do 

not address them in this appeal. 

The affidavit filed by Spears stated that he is making the affidavit after being 

sworn and under oath, and was notarized as such. An "affidavit" is defined as "a 

statement in writing of a fact or facts signed by the party making it, sworn to before an 

officer authorized to administer oaths, and officially certified to by the officer under his 

seal of office." TEX. GOV'T CODE ANN. § 312.011 (Vernon 2005). The affidavit filed by 

Spears meets this definition. 
Spears v. State Page 4

In his affidavit, Spears set forth three reasons for his request to surrender the 

principal: (1) Def[endant] has never checked in; (2) Def[endant] has not provided our 

office with current info.; and (3) Def[endant] does not return phone calls or messages. 

Spears also stated that he had information regarding the principal’s current address in 

Oklahoma City. While the affidavit filed by Spears certainly could have been more 

specific, it did meet the requirements of article 17.19(a). As such, once the affidavit was 

presented to the trial court, the trial court did not have discretion to deny Spears’s

request for a warrant to be issued. See McConathy, 545 S.W.2d at 168 (A trial court has 

no authority to refuse to issue a warrant for a principal after a surety has properly 

presented an affidavit pursuant to article 17.19.); see also TEX. CODE CRIM. PROC. ANN. 

art. 17.19(b) (Vernon Supp. 2009) (the trial judge "shall issue" an arrest warrant for the 

principal if the judge determines there is cause to surrender the principal). If the 

principal wants to later challenge the validity or content of the affidavit, they can 

pursue a civil action against the bond company. McConathy, 545 S.W.2d at 168; Robbins 

v. Roberts, 833 S.W.2d 619, 623-24 (Tex. App.—Amarillo 1992, no pet.).

Further, there is no requirement that the cause set forth in article 17.19 rise to a 

level of probable cause. We decline to add the requirement that the affidavit must set 

forth probable cause to surrender the principal because we are required to strictly 

construe the statutes governing bond forfeitures. See Hernden v. State, 865 S.W.2d 521, 

523 (Tex. App.—San Antonio 1993, no writ). As such, we will not add language that the 

legislature did not include. Reviewing the evidence under the appropriate standards, 

we find that the allegations contained in the affidavit were sufficient to establish cause 
Spears v. State Page 5

to surrender the principal. We find that the trial court erred in granting the summary 

judgment in favor of the State. We sustain issues one and two.

Remedy

Spears requests that we render judgment in his favor. However, this is an appeal 

of a summary judgment proceeding filed by the State. When we reverse a trial court's 

judgment, it is our duty under Rule of Appellate Procedure 43.3 to render the judgment 

the trial court should have rendered. TEX. R. APP. P. 43.3. However, Spears did not file 

his own motion for summary judgment. Therefore, we cannot give him relief he did 

not request by rendering judgment in his favor at this stage of the proceedings. The 

order that the trial court should have rendered is to deny the motion for summary 

judgment, not to grant judgment in his favor. Spears’s issue three is overruled.

Conclusion

We find that the trial court erred in granting the State’s motion for summary 

judgment of forfeiture against Spears. We reverse and remand this cause to the trial 

court for further proceedings in accordance with this opinion.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Reversed and remanded

Opinion delivered and filed December 30, 2009

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