Alex R. Hernandez, Doing Business as Hernandez Bonding Company and Adan Floriano v. The State of Texas--Appeal from 24th District Court of Refugio County

 
 NUMBER 13-99-141-CV

COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

____________________________________________________________________

ALEX R. HERNANDEZ, DOING

BUSINESS AS HERNANDEZ BONDING

COMPANY AND DANIEL SALAZAR

MARTINEZ, Appellants,

v.

THE STATE OF TEXAS, Appellee.

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AND
 NUMBER 13-99-142-CV 

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ALEX R. HERNANDEZ, DOING

BUSINESS AS HERNANDEZ BONDING

COMPANY AND ADAN FLORES, Appellants,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

____________________________________________________________________

On appeal from the 24th District Court
of Refugio County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Ya ez

Opinion by Justice Ya ez

Appellants, Alex R. Hernandez, d/b/a Hernandez Bonding Company ("Hernandez"), Daniel Salazar Martinez and Adan Floriano bring this appeal to challenge the trial court's judgments ordering forfeiture of Martinez and Floriano's bail bonds.(1) Because the issues and facts in each case are identical, we will address the appeals with one opinion. We reverse and remand.

Martinez was indicted for possession of marijuana, more than five pounds, less than fifty pounds, and was released upon posting a bond set at $50,000. In a case unrelated to Martinez's case, Floriano was indicted for failing to appear, with a bond of $25,000. Hernandez was the surety on both bonds. Neither Martinez nor Floriano appeared on their appointed court dates, and separate judgments nisi, declaring forfeiture, were issued against them, both of which also listed Hernandez as defendant. On December 21, 1998, the trial court held hearings to determine whether Martinez and Floriano had just cause for failing to appear on their respective trial dates. Following the hearings, at which Martinez and Floriano failed to appear, the court rendered final judgments, ordering that the State recover the value of the bonds, plus costs of suit and post-judgment interest.

The appellants challenge the judgments in each cause with three issues. With their first issue, appellants argue that a judgment on a bond forfeiture may not include post-judgment interest. The State concedes this point.

We agree that the trial court erred in awarding post-judgment interest. This issue has been addressed by the Dallas Court of Appeals. Bailout Bonding Co. v. State, 797 S.W.2d 275, 277-278 (Tex. App.--Dallas 1990, pet. ref'd). The Dallas Court noted that a "penal judgment, that is, a judgment in the nature of a fine, must not exceed the penal sum fixed by the bond." Id. "A judgment on such a bond is in the nature of punishment." Id. at 278. (quoting Magless v. State, 112 Tex. Crim. 646, 18 S.W.2d 669, 670 (1929)). The "sum recoverable for noncompliance with the conditions of a bail bond is a penalty." Magless, 18 S.W.2d at 670. Awarding interest on a bail bond would result in the forfeiting party being required to pay an amount in excess of the penalty set by the bond. The award of post-judgment interest was error. Issue number one is sustained.

Appellants' argue, in their second issue, that there is a fatal variance between the judgments nisi and the final judgments. The judgments nisi and the final judgments are at variance. In order to justify reversal, a variance between a judgment nisi and a final judgment must amount to a fatal variance. Smith v. State, 548 S.W.2d 407, 408 (Tex. Crim. App. 1977); See also, Blaine v. State, 494 S.W.2d 916, 918 (Tex. Crim. App. 1973); Mackintosh v. State, 845 S.W.2d 361, 362-63 (Tex. App.--Houston [1st Dist.] 1992, no pet.).

In Martinez's case, the judgment nisi was issued by the 267th district court of Refugio County. The final judgment was entered in the 24th district court, and states that Martinez failed to appear and show cause for failing to appear "in this court," and this failure resulted in a judgment nisi being issued. In Floriano's case, the judgment nisi was issued by the 135th district court. The final judgment was entered by the 24th district court, and again states that the principal failed to appear and show cause for failing to appear "in this court," and this failure to appear resulted in a judgment nisi being issued. This situation has been addressed by the court of criminal appeals, which has held such variances to be fatal.

In Smith v. State, the judgment nisi stated that the principal failed to appear in the 147th District Court of Travis County, however, the final judgment was entered by the 167th District Court, and stated that the defendant did not demonstrate just cause for failing to appear in "this court." Smith, 548 S.W.2d at 408. The court of criminal appeals found that the final judgment was not supported by the allegations of judgment nisi because of the variance in regard to the court in which the defendant failed to appear. Id. The facts in George v. State were similar to those in Smith. See George v. State, 589 S.W.2d 428 (Tex. Crim App. [Panel Op.] 1979). In George, the defendant failed to appear before the 211th District Court, which issued a judgment nisi. George, 589 S.W.2d at 430. The final judgment was taken in the 158th District Court, and stated that the defendant failed to appear "in this court." Id. Again, the court of criminal appeals reversed and remanded, stating that the judgment nisi did not support the final judgment. Id.

In the instant case, the principals failed to appear in, and the judgments nisi were issued by, the 135th and 267th district courts, but the final judgments, issued by the 24th district court, state that the principals failed to appear "in this court." There is a fatal variance between the judgments nisi and the final judgments. See Smith, 548 S.W.2d at 408. Issue number two is sustained. Because these issues are dispositive, we do not address appellants' third issue. Tex. R. App. P. 47.1

These judgments of the trial courts are REVERSED and REMANDED for further proceedings consistent with this opinion.

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LINDA REYNA YA EZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

24th day of August, 2000.

1. Martinez is an appellant in cause number 13-99-141-CV, Floriano in cause numbers 13-99-142-CV.