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Civil Litigation No. 08-02-00245-CV, 5/1/2003. Click here for the full text of this decision FACTS: Jose Federico Castillo and Ray MacDonald, doing business as Aida’s Around the Clock Bail Bonds, executed a bail bond in the amount of $40,000 to secure Castillo’s appearance at trial on charges of indecency with a child and aggravated sexual assault of a child. When Castillo failed to appear, the trial court issued a judgment nisi. The court subsequently conducted a bond forfeiture hearing at which the state and MacDonald appeared. On Dec. 12, 2001, the trial court signed a “Final Order” vacating the judgment nisi and ordering that the state take nothing. On Dec. 28, 2001, the state filed a “motion for a new trial or to modify, correct or reform its prior ruling.” The court conducted a hearing on the motion for new trial, and on March 2, 2002, the court sent the parties a letter stating that it intended to set aside the final order and find in favor of the state. The court also stated that it would consider a reduction in the amount of the bond and directed the parties to schedule a hearing, “if necessary,” before March 4, 2002. On March 4, 2002, the court signed an “order granting plaintiff’s motion for new trial or to modify prior ruling.” On the same date, the court signed a “modified final order on judgment nisi,” decreeing that the bond was forfeited and rendering judgment against Castillo and MacDonald for $40,000. HOLDING: MacDonald’s first issue on appeal is sustained, the March 4, 2002 “order granting plaintiff’s motion for new trial or to modify prior ruling” and “modified final order on judgment nisi” are vacated. The trial court’s Final Order of Dec. 12, 2001, is affirmed. The Order Granting Plaintiff’s Motion for New Trial or To Modify Prior Ruling and Modified Final Order on Judgment Nisi of March 4, 2002, are vacated. It has long been the law in this state that bond forfeiture proceedings are governed by civil rules. In civil suits, the trial court may grant a new trial on the motion of either party or on the court’s own motion. If a timely motion for new trial is filed, the trial court has plenary power to grant a new trial or to vacate or modify its judgment until 30 days after the motion is overruled. In this case, the state’s motion for new trial was timely filed within 30 days after the trial court’s judgment was signed, and the trial court granted the motion within the time allowed by the civil rules. Thus, the state argues that because bond forfeiture proceedings are governed by civil rules, the trial court had plenary power to grant its motion. The court disagrees. Although Texas Code of Criminal Procedure Article 22.10 states that a bond forfeiture proceeding is governed by the same rules that govern civil suits, such a proceeding is nevertheless a “criminal case.” Article 22.10 merely prescribes the manner of trial; it does not change the character of the case from criminal into civil. In criminal cases, there is no common law right to a new trial. The right is purely statutory. Texas statutes previously provided that a new trial could not be granted if the judgment was in favor of the defendant. Construing these statutes, the Court of Criminal Appeals and its predecessor consistently held that a new trial may not be granted on the State’s motion or on the court’s own motion. In 1883, the Texas Court of Appeals specifically held that the state cannot be granted a new trial in a bond forfeiture proceeding. Robertson v. State, 14 Tex. Ct. App. 211 (1883); Perry v. State, 14 Tex. Ct. App. 166 (1883). Robertsonand Perrywere based on two premises. First, statutory language prohibited new trials when the verdict was in favor of the defendant. Second, the state had no right to appeal in a bond forfeiture proceeding. As demonstrated below, these premises still hold true. The court believes that Perryand Robertsonare still good law because it must construe the current rule regarding new trials in criminal cases consistently with the prior statute regarding new trials. As the court noted in State v. Sellers, 790 S.W.2d 316 (Tex. Crim. App. 1990), Perryand Robertsonrelied on article 776 of the 1879 Code. Article 40.02 of the 1965 Code was identical to article 776, except that it used the word “accused” in place of “defendant.” In 1985, the Legislature granted the Court of Criminal Appeals the power to repeal article 40.02 and other statutes governing criminal procedure and to replace them with new rules of procedure. But the Legislature provided that in exercising this power, the Court of Criminal Appeals could not “abridge, enlarge, or modify the substantive rights of a litigant.” The court first replaced article 40.02 with Rule 30 of the Texas Rules of Appellate Procedure. Rule 30 was later supplanted by Rule 21.1 of the Texas Rules of Appellate Procedure. Rule 21.1 states, ” New trialmeans the rehearing of a criminal action after the trial court has, on the defendant’s motion, set aside a finding or verdict of guilt.” This language is not as clear in prohibiting the state from filing a motion for new trial as the language of article 40.02. But the court cannot construe Rule 21.1 in a way that would enlarge the right of the state to a new trial. It therefore construes it, in accordance with prior case law, not to authorize a motion for new trial by the state. The state suggests that the trial court merely modified its prior judgment and that it had inherent authority to do so. The state points out that it requested the court to modify the judgment as an alternative to granting a new trial, and the court labeled its final judgment as a “Modified Final Order on Judgment Nisi.” This court notes, however, that on the same day that it signed the “modified final order on judgment nisi,” the court also signed an “order granting plaintiff’s motion for new trial or to modify prior ruling.” This order states that a “new trial should be granted” and that the “motion for new trial filed by [the state] is hereby granted.” Thus, it is clear that the court granted the state a new trial. Noting that mandamus relief has been granted to correct erroneous rulings in bond forfeiture cases, the state argues that it is judicially inefficient to prohibit trial courts from correcting their own errors. This court is not the proper forum for this argument. The Sellerscourt suggested that the Legislature is constitutionally empowered to grant a right of appeal to the state in bond forfeiture proceedings. The Legislature has the same power with regard to motions for new trial. OPINION: Larsen, J.; Barajas, C.J., Larsen and Chew, JJ.

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