I filed several defaults on Jts NISI and now have as many Motions for New Trial as I had defaults.

Has anyone worked with this? I'm thinking I need to answer it...and my deputy who personally served the surety is more than a little ticked...

Any help appreciated........

You have to decide whether it is easier to answer the MNTs or to let the cases be reinstated and then proceed with the bond forfeitures on the merits.

If these are no-answer defaults, I would make sure the defendant(s) met the Craddock factors and attached affidavits as required. Also, did the defendant(s) offer to pay the Plaintiff-State's costs of filing for default judgment? See Evans, 889 SW2d 266, 270 & n. 3.

If the defendant has made a facially valid argument to meet the Craddock factors, and has attached affidavits, it might be more economical to proceed with a new trial on the BF merits. But, is it credible that a surety or sureties really failed to answer because of mistake or accident in a large number of cases where they were properly served?

You could use this as an opportunity to negotiate settlement, especially considering the argument that you are entitled to costs for your DJ per Evans, and that even if the defendant(s) win the MNTs, they will still probably lose the BF cases on the merits.

Why is the deputy upset? Proper SOP is required for the State to proceed in any event, and in a default judgment, SOP is strictly construed. It's not as if the MNTs get the sureties off the hook.

Thank you. She is upset because the affidavit alleges that the surety was not served and she served her personally...every time.

In that case I would set them all for a consolidated hearing. The law is strongly in your favor, and is the judge really going to believe the surety wasn't served, when multiple citations signed by a peace officer show she was?

I would file a consolidated response for each case (so that you only have to draft one response), saying the citation on file shows that the defendant surety was served. It's important to controvert the defendant's affidavit, or the court must accept the sworn factual allegations by the defendant and is usually required to grant the new trial. Averitt v. Bruton Paint, 773 SW2d 574,576 (Dallas 1989) ("On a motion for new trial, the trial court is bound to accept as true the affidavits of the movant, unless the opponent requests an evidentiary hearing.").

The safest procedure would be to get a simple affidavit from your peace officer stating that the attached citation or the citation on file was served on the person indicated, as indicated. Then file the same motion, with the same affidavit, in each case. That creates a fact issue for the court, and entitles you to a hearing. Estate of Pollack 858 SW2d 388, 392 (Tex. 1993). I would request one oral hearing for all cases, since they all involve the same witnesses--the surety and your deputy.

I had one of these a few years ago. I'll send you an email.

This message has been edited. Last edited by: Brent Haynes,

Thank you - I'll be looking for it!