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 filed Appeal Bond with stated
assurance as the required requisites for the Appeal Bond were adhered to as
required by the intent of the Texas Legislature.
Appellant was found guilty by the Honorable Judge
__________________________ at the _________________________________ on
______________ ____, 20___ 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 ______________
____, 20___.
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 Government Code, the Texas Code of Criminal Procedure,
and the Texas Penal Code, among others.
Under Texas Government Code Section 30.00015 the Appeal Bond specifies 4
requisites. (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 concerning appealing a Class C Misdemeanor as Bail is not
required if the party is not subject to jail while on appeal.
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 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 Texas Code
of Criminal Procedure 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.
If it is the policy or ordinance of a municipal
court that a cash bond is required to appeal from their court, then the Texas
Legislature requires reference to a specific statute that was created by the
Texas Legislature that the policy or ordinance is relied upon.
Texas Constitution
Article 11- Municipal Corporations
Section 5. The adoption or amendment of charters is
subject to such limitations as may be prescribed by the Legislature, and no
charter or any ordinance passed under said charter shall contain any provision
inconsistent with the Constitution of the State, or of the general laws enacted
by the Legislature of this State.
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.
Nothing in Texas
Law requires Appellant to submit cash or other consideration to a Municipal
Court to be allowed to appeal when the offense does not consist of a penalty of
confinement. Specifically Article 44.281 of the Texas Code of Criminal
Procedure 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.”
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 ________________________, 20___.
___________________________________
___________________________________
___________________________________
_________________________________
INSTRUCTIONS
This document goes with the
Appeal Bond used when appealing from a municipal court. It shows the authority,
why you are not required to put up cash money to appeal from the court. Try it
in any municipal 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 must be filed within
10 days after the denial of your Motion for a New Trial.
Original is filed with the
court clerk, copy served on the prosecutor, a copy for you.
Line 1: Where you put the
cause numbers of the case.
Line 2: Put ‘Municipal’.
Line 3: Put ‘In the City of
(whatever City)
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.
No comments:
Post a Comment