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Click here for the full text of this decision FACTS:On Jan. 18, 2001, Belinda Lee Powell, charged in Johnson County with a felony drug offense, failed to appear in court for her trial. On Feb. 13, 2001, the trial court rendered judgment nisi for the state and against Powell and her surety, Mike McKenna doing business as Bondman Bail Bonds, jointly and severally, in the amount of Powell’s bail bond, which was $25,000. On that same date, the trial court ordered that a writ be issued for Powell’s arrest. On March 26, 2003, at the bond forfeiture hearing, the trial court rendered a default final judgment for the state and against Powell and McKenna. On March 22, 2005, McKenna filed a special bill of review in the trial court requesting, on equitable grounds, that the default final judgment be reformed to reflect a 95 percent remittitur of the bond amount. On June 27, 2005, the trial court held an evidentiary hearing on McKenna’s bill. At that hearing, McKenna called one witness, Charles A. Smith, and the state called no witnesses. Smith testified that: 1. he was, at the relevant times, an employee of McKenna’s; 2. after Powell failed to appear in court for her trial, he and other McKenna employees “did [their] best to get [Powell] arrested”; 3. they “searched all the places [they] thought she might be,” they “contacted her sisters [and] her mother,” and they publicly offered a $1,000 reward for information leading to her arrest; 4. on Sept. 13 or 14, 2001, an informant telephoned their office and told them of Powell’s whereabouts; 5. on Sept. 15, 2001, he personally went to the location given by the informant, which was off County Road 801 in Johnson County, and found Powell there; 6. he immediately telephoned the Johnson County sheriff’s office and gave them Powell’s location; and 7. he telephoned the sheriff’s office again later that day and was “assured . . . that [Powell] had been arrested.” At the close of Smith’s testimony, the trial court allowed McKenna and the state to present their arguments. McKenna argued that equity demanded “a substantial remittitur” because: 1. “Smith [had] expended substantial efforts in locating” and apprehending Powell; and 2. “the State ha[d] not presented any evidence showing how [it had been] prejudiced” by the seven-month delay in apprehending Powell. The state responded that equity did not require any remittitur at all because: 1. Smith’s testimony had been “sketchy at best”; 2. Smith’s efforts to locate and apprehend Powell had been “minimal”; and 3. the delay in apprehending Powell had been “significant.” On July 25, 2005, the trial court issued an order denying any remittitur to McKenna. The trial court gave no explanation for its ruling. On direct appeal, McKenna argued that the trial court’s denial of remittitur had been an abuse of discretion “considering all the facts of the case, especially in view of the fact . . . that the Surety [had been] totally responsible for locating [Powell] and having her apprehended.” McKenna also argued that “the state [had] failed to present any evidence of harm done to the public or [any] prejudice suffered by the government” as a consequence of the delay in apprehending Powell. The state counterargued that the trial court had not abused its discretion in denying remittitur, because McKenna had failed to carry his “burden [of showing] the [trial] court the equitable grounds [required] to grant the special bill of review.” The 10th Court of Appeals, by a vote of two to one, agreed with McKenna’s arguments and reformed the trial court’s order to reflect a remittitur of 60 percent of the bond amount, i.e., $15,000. The chief justice of the 10th Court, in dissent, argued: “[T]he majority has placed the burden on the State to avoid a remittitur by presenting evidence. This is an erroneous placement of the burden of proof. The burden of proof is on the surety to establish that on equitable grounds a remittitur should be ordered. . . . “The hearing [on the special bill of review] focussed on McKenna’s efforts to locate Powell. Evidence on this single factor was not enough to convince the trial court of the surety’s equitable interest in being granted a remittitur. I find no abuse of discretion.” The state later filed a petition for discretionary review, which the CCA granted. HOLDING:The CCA reversed the judgment of the 10th Court of Appeals and affirmed the order of the trial court. According to the CCA, the state reiterated the arguments made by the 10th Court’s chief justice in its petition and accompanying brief to the CCA. Texas Code of Criminal Procedure Art. 22.17(a), the CCA stated, provides: “Not later than two years after the date a final judgment is entered in a bond forfeiture proceeding, the surety on the bond may file with the court a special bill of review. A special bill of review may include a request, on equitable grounds, that the final judgment be reformed and that all or part of the bond amount be remitted to the surety, after deducting the costs of court, any reasonable costs to the county for the return of the principal, and the interest accrued on the bond amount from the date of forfeiture. The court in its discretion may grant or deny the bill in whole or in part.” Under the plain wording of the statute, a surety may request, within two years of a final judgment on a bond forfeiture, that the trial court order a remittitur of all or part of the bond amount on equitable grounds. Although the statute does not state that the surety has the burden of proof with respect to the existence of such equitable grounds, the CCA stated its view that the surety does indeed have that burden, since the surety is the party attempting to change the status quo. This is so even though the state may have superior access to proof of certain matters. Under the terms of Article 22.17(a), the decision whether to grant any remittitur on equitable grounds rests within the sound discretion of the trial court. In making its decision, the trial court must keep in mind that, since the purpose of bail is to secure the accused’s appearance in court, the law contemplates that the accused’s nonappearance will normally result in total forfeiture of the bond amount. Nonetheless, the CCA stated, the trial court may consider any factor bearing upon the equity of the situation, including, but not necessarily limited to, the following: 1. whether the accused’s failure to appear in court was willful; 2. whether the delay caused by the accused’s failure to appear in court prejudiced the state or harmed the public interest; 3. whether the surety participated in the re-arrest of the accused; 4. whether the state incurred costs or suffered inconvenience in the re-arrest of the accused; 5. whether the surety received compensation for the risk of executing the bail bond; and 6. whether the surety will suffer extreme hardship in the absence of a remittitur. On this record, the CCA stated that a reasonable trial court could have concluded that equity did not require any remittitur of the bond amount. Thus, the CCA discerned no abuse of discretion on the part of the trial court. McKenna had the burden of showing that equity required a remittitur of some or all of the bond amount, yet he presented evidence on only one of the relevant factors: his participation in the re-arrest of Powell. OPINION: Holcomb, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Johnson, Keasler, Hervey and Cochran, JJ., joined. Womack, J., did not participate.

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