Cause No(s). _____________________________

The State of Texas                            §           IN THE _________________________ COURT

                                                            §            

VS.                                                      §          ________________________________________                                                               §                    

____________________________   §           __________________ COUNTY, TEXAS

                         

MEMORANDUM OF LAW IN SUPPORT OF APPEAL BOND

I, _________________________________, hereafter known as Appellant, submit this memorandum of law in support of the request to file a Appeal Bond with stated assurance as the required for the Appeal Bond and allowed by law.

Appellant was found guilty by the Honorable Judge __________________________ at the _____________________________________________ on ______________  ____, 201__ of violation(s) which are classified as Class C Misdemeanor as defined in the Texas Penal Code Section 12.03(a)(3), 12.03(b) and 12.03(c). The motion for a new trial was denied on ______________  ____, 200__.

Under the Texas Government Code Section 30.00006(e) states that a Court Judge will take judicial notice of state law. State law consists of the Texas Constitution, the Texas Code of Criminal Procedure, and the Texas Penal Code, among others.

Nothing can be found where a Justice of the Peace is relieved of taking judicial notice of state law. If any Justice of the Peace has failed to complete the mandated provisions of Article 16, Section 1 of the Texas Constitution, then all previous actions are void. If any Justice of the Peace has completed the mandated provisions of Article 16, Section 1 of the Texas Constitution, then the Justice of the Peace is bound by Oath of  abiding by Texas state law.

Under Government Code Section 30.00015 the Appeal Bond specifies 4 requirements. (1) The Appeal bond must be filed within 10 days after the motion for a new trial is denied. (2) The appeal bond must be in the amount of $100  or double the amount of the fine, which ever is greater. (3) The appeal bond must state that the defendant was convicted in the case and has appealed. (4) The appeal bond must be conditioned on the defendant’s immediate and daily personal appearance to which the appeal is taken. No requirement of cash or surety for a Class C Misdemeanor can be found in the Texas Government Code or Texas Code of Criminal Procedure.

Article 17.01 & 17.02 of the Texas Code of Criminal Procedure are only concerned with a party where the offense charged, if found guilty, could subject the accused to be incarcerated for a period of time, but even here a personal bond is allowed.

Texas Rules of Criminal Procedure

Art. 17.01. DEFINITION OF "BAIL".  "Bail" is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.

Texas Rules of Criminal Procedure

Art. 17.02. DEFINITION OF "BAIL BOND".  A "bail bond" is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation;  provided, however, that the defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same.  Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the defendant if and when the defendant complies with the conditions of his bond, and upon order of the court.

Black Law dictionary, Fifth Edition makes it clear whom Bail is for.

Bail – “The surety or sureties who procure the release of a person under arrest, by becoming responsible for his appearance at the time and place designated.”

Black’s Law Dictionary Fifth Edition

Under the Texas Code of Criminal Procedure (TCCrP) Article 43.03(b) states under Payment of Fines:

“(b) A term of confinement for default in payment of fine or costs or both may not exceed the maximum term of confinement authorized for the offense for which the defendant was sentenced to pay the fine or costs or both. …”(emph. Added)

The statement “may not exceed the maximum term of confinement authorized for the offense…” is specific in nature. If confinement is not considered in the penalty of the offense, then the maximum amount time allowed by confinement is zero. If confinement is a null issue, then any Article within the TCCrP which specify the word ‘release’ or ‘bail’ cannot be considered by the court, as the words apply to confinement.

Article 44.20 of the Texas Code of Criminal Procedure concerns appeal bonds only where bail has been required to have someone released from jail or to keep someone from being incarcerated while the appeal process is on going.

Texas Rules of Criminal Procedure

Art. 44.20. RULES GOVERNING APPEAL BONDS.  The rules governing the taking and forfeiture of bail shall govern appeal bonds, and the forfeiture and collection of such appeal bonds shall be in the court to which such appeal is taken.

Before the above Article 44.20, we find Article 44.15 of the Texas Code of Criminal Procedure indicating if there is a problem with the appeal bond then it is the appellate court that decides whether the appeal bond should be amended and not the municipal court.

Texas Rules of Criminal Procedure

Art. 44.15. APPELLATE COURT MAY ALLOW NEW BOND.  When an appeal is taken from any court of this State, by filing a bond within the time prescribed by law in such cases, and the court to which appeal is taken determines that such bond is defective in form or substance, such appellate court may allow the appellant to amend such bond by filing a new bond, on such terms as the court may prescribe.

Texas law only requires Appellant to sign an Appeal Bond whereby Appellant states that Appellant was convicted and is appealing the conviction, promises to appear when required by the court or be prepared to pay the court $100 or up to double the amount of the fine and finally file the Appeal Bond within 10 days after Appellant’s Motion for a new trial is denied.

Texas Government Code

Sec. 118.124. Prohibited Fees

A justice of the peace is not entitled to a fee for:

(4) taking or approving a bond for costs.

Nothing in Texas Law requires Appellant to submit cash or other consideration to a Justice of the Peace court to be allowed to appeal when the offense does not consist of a penalty of confinement. Specifically, Article 44.281 of the TCCrP states:

“In misdemeanor cases affirmed on appeal from a municipal court, the fine imposed on appeal and the costs imposed on appeal shall be collected from the defendant, and the fine of the municipal court when collected shall be paid into the municipal treasury.”

Since this action was brought by the county which is being appeal by trial de novo, nothing the Justice of the Peace court was resolved, as the record is not required to be forward to the county court. A trial de novo is as if the previous trial never took place which makes any cash bond a nullity, if not allowed before trial.

Texas Government Code

Sec. 374.909. Judicial Proceedings

     (a) An action brought to review, modify, suspend, or satisfy a rule, order, decision, or other act of the governing body of a municipality or other agency shall be trial de novo as that term is used in an appeal from a justice of the peace court to a county court.  In the trial, no presumptions in favor of the order or rule apply, and evidence relating to the validity or reasonableness of the order or rule may not be heard.  The determination of the action shall be made on the facts as in other civil cases, and the procedure used and the determination of orders and judgments to be entered in the trial shall be under the rules of law, evidence, and procedure prescribed under the constitution, statutes, and rules of procedure of this state applicable to civil trials.

     (b) The trial of an action brought under this section shall be strictly de novo and the decision in the action shall be made on the preponderance of the evidence presented at the trial, independent of any administrative action taken by the board and free from the application of the substantial evidence rule stated by the courts relating to orders of other administrative or quasi-judicial agencies.

WHEREFORE, for all the aforementioned reasons Appellant respectfully pray that this Honorable Court will accept Appellant’s Appeal Bond without extra consideration. In the alternative of the denial of Appellant’s Appeal Bond, Appellant moves for an Interlocutory Appeal on the issue of a mandatory cash bond, before Appellant’s has the right to an appeal to the county court from a Class C Misdemeanor violation.

Respectfully submitted by:

_________________________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing has been delivered to the following party or counsel of record via certified mail, return receipt requested, hand delivery or fax on this ______  day of ________________________, 201__.

___________________________________

___________________________________

___________________________________

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INSTRUCTIONS

This document goes with the Appeal Bond used when appealing from a Justice of the Peace court. It shows the authority, why you are not required to put up cash money to appeal from the court. Try it in any JP court appeal. If it is rejected then an Interlocutory Appeal is in order to have a higher court show the authority where is by law that a cash bond is required, when another court shows it is not.

This document is filed at least 10 days after the denial of your Motion for a New Trial.

Line 1: Where you put the cause numbers of the case.

Line 2: Put ‘Justice’.

Line 3: Put ‘Precinct (whatever Precinct #), Place (whatever Place #)

Line 4: Put your name in Upper and Lower Caps.

Line 5: Put whatever county the court is in – like – “Galveston”.

Line 6: Put your name in Upper and Lower Caps.

Line 7: Name of Judge.

Line 8: Put in the name of the court where you filed your papers.

Line 9: Put the name of the Month that the judge found you guilty.

Line 10: Put the numbered day of the Month that the judge found you guilty.

Line 11: Put the last number of the year that the judge found you guilty – like - 2001 .

Line 12: Put the name of the Month that the judge denied the motion for a new trial.

Line 13: Put the numbered day of the Month that the judge denied the motion for a new trial.

Line 14: Put the last number of the year that the judge denied the motion for a new trial – like - 2001 .

Line 15: Sign your name, below the line, print your name in Upper and Lower Caps then below that print your address.

Line 16: Put the numbered day of the Month that you serve a copy of this document to the Court Clerk.

Line 17: Put the name of the Month that you serve a copy of this document to the Court Clerk

Line 18: Put the last number of the year that you serve a copy of this document to the Court Clerk. – like - 2001 .

Line 19: Put “Court Clerk for (Whatever Court)

Line 20: Put the street address where the Court Clerk will be served.

Line 21: Put the City, State and Zipcode where the Court Clerk will be served.

Line 22: Sign your name, print your name in Upper and Lower Caps then below that print your address.

Original goes to the clerk of the court and one copy for you to keep and have stamped by the clerk. Be sure and NOT include the instruction sheets.