Sureties down here are relying on a so-called "due diligence" defense vis a vis service of citation on them to avoid forfeitures. Has anyone dealt with such an argument? Doesn't Art. 22.18's 4 year limitation provision trump that defense?
This post has been moved from the Criminal forum to the Civil forum.
I expect a flurry of responses from you Civil people!
Article 22.03 governs citation to sureties. It does not kick in until you file a judgment nisi. Some sureties will try to use this against you for a delay in filing a judgment nisi. This does not work because 22.18 gives you a 4 your SOL for filing a nisi.
Once you file a judgment nisi, you are required under 22.03 to issue the citation "forthwith".
Dees v. State, an unpublished opinion under WL523340, Tex. App. Dallas, 1994 discusses this very issue. Dees says that "forthwith" refers to the time between the signing of the judgment nisi and the issuance of citation, not the period between defendant's failure to appear and the entry of the judgment nisi. In Dees, citatin was issued six days after the signing of the judgment nisi and the court found that "forthwith" requirement satisfied.
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