Bail Bonds and Bond Forfeiture by wuyunqing

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									    Bond Forfeiture
Procedures for County Courts
       January 2011
The Court has broad discretion in
  setting the amount of bail:
The amount should:
• Give reasonable
  assurance that Def.
  will appear
• Not be oppressive
• Consider nature of
  offense
• Ability to make bail
• Future safety of victim
The Court does not have:
            • Discretion to set a
              differential bail bond
              amount depending
              upon whether cash
              bond or surety bond is
              used.
Bail may not be used for fines,
 fees or attorneys fees under
    normal circumstances
 Rules for Fixing the Amount of
               Bail
• Primary purpose of      • Factors to be considered in
  bail is to secure the     determining the amount of
                            bail include the def.‟s
  presence of the           work record, family ties,
  defendant in court        residency, ability to make
• A def. has no             bond, prior criminal
  constitutional right to   history, conformity with
  bail even if the amount   previous bond conditions
                            and outstanding bonds or
  can only be made by       any aggravating
  one licensed surety in    circumstances surrounding
  the county                the offense
     Art. 17.16- DISCHARGE OF
    LIABILITY; SURRENDER OR
  INCARCERATION OF PRINCIPAL
      BEFORE FORFEITURE
• Surety may surrender the accused into the custody
  of the sheriff in the county where the prosecution
  is pending
• Surety may deliver to the sheriff of prosecuting
  county an affidavit showing def. is incarcerated in
  federal custody, or custody of another state, or in
  custody of any county in Texas
• Surety is absolved of liability on the sheriff‟s
  verification of the incarceration of the accused
“Art. 17.16 Surrender” (continued)
• If def. “surrendered” during term of court
  sheriff shall take him before the court, and
  def. can make bail, if court requires him to
  do so, otherwise def. committed to jail
• If def. “surrendered” when court not in
  session, sheriff may take bail if posted, if
  not sheriff takes def. before magistrate for
  commitment warrant
  Art. 17.19- Surety May Obtain
        Warrant or Capias



• Any surety desiring to surrender his def,. and after
  notifying the def.‟s atty. of the intention to surrender may
  file an affidavit of intention before the court or magistrate
  where the prosecution is pending
             Art. 17.19 (cont.)
• If the court finds that there is cause for the surety
  to surrender the def., the court shall issue a
  warrant of arrest or capias for the defendant
• It is an affirmative defense to any liability if:
• (1) the court refused to issue a warrant of arrest
  for the defendant; and
• (2) after the refusal to issue the warrant the
  defendant failed to appear
Art. 17.19 ARREST WARRANT
           or CAPIAS
• A “17.19” arrest warrant or capias shall be issued
  to the sheriff of the county in which the case is
  pending, and a copy of the warrant shall be issued
  to the surety or his agent
• A “17.19” arrest warrant or capias may be
  executed by a peace officer, a security officer, or a
  private investigator licensed in Texas
Sureties Continue to “Hold the
            Ball”
               • If the judge finds cause
                 and issues the warrant or
                 capias, but the defendant
                 fails to appear, the surety
                 continues to be liable on
                 the forfeiture unless the
                 defendant is returned to
                 custody before the bond
                 forfeiture case is taken to
                 final judgment
 What if the Judge thinks there is
  “NOT JUST CAUSE FOR
        SURRENDER?”
• Tex. Occ. Code
  §1704.207(c)-the court
  may require the surety
  to refund to the
  principal (def.) all or
  part of the fees paid
  for execution of the
  bond!
Art. 17.40 Conditions Related to
 Victim or Community Safety
• To secure a defendant‟s attendance at trial,
  a magistrate may impose any reasonable
  condition of bond related to the safety of the
  victim or to the safety of the community
• The magistrate may REVOKE the
  defendant‟s bond if a violation of a bond
  condition is proved by a preponderance of
  the evidence
Art. 22.01-BAIL FORFEITED
             • If a defendant is on
               bond and fails to
               appear, a judicial
               declaration of such
               forfeiture SHALL
               be taken
  Latin Lesson for BF Beginners
• Nisi- pronunciation „nI-sI‟
• Function: adjective
• Etymology: Latin,
  UNLESS, from ne-not +
  si if: taking effect at a
  specified time unless
  previously modified or
  avoided by cause shown-
  so “judgment unless”
 Art.22.02 MANNER OF TAKING
           FORFEITURE
• Name of Defendant is called at courthouse door
• If Def. doesn‟t appear within a reasonable time…
• Judgment SHALL be entered against def. &
  sureties
• Judgment shall state it will be final unless good
  cause is shown for Def.‟s non-appearance
          Notes on Art.22.02
• Case law states judgment nisi is “prima
  facie” proof that the State complied with
  requirements of this Article
• State can request that the court take judicial
  notice of judgment nisi
• Burden then shifts to surety to affirmatively
  show non-compliance
Steps in a Forfeiture
           • Citation shall issue to
             sureties requiring them to
             appear and show cause
             why the judgment nisi
             should not be final
           • Copy of judgment nisi, a
             copy of the forfeited bond,
             copy of any power of
             attorney attached to the
             forfeited bond shall be
             sent with citation
Latin Lesson Continued…
            • Scire Facias-
              Pronunciation: “sI-rE-
              ‟fA-sh (E-) &s
            • Function: noun
            • Etymology: Middle
              English, from
              medieval Latin, You
              should cause to know
       Art. 22.10 SCIRE FACIAS
                DOCKET
• When a forfeiture has been declared upon a bond,
  the court or clerk shall docket the case in the name
  of the State of Texas, as plaintiff and the
  defendant and sureties as defendants.
• Note: Texas Rules of Civil Procedure govern
  although bond forfeiture cases are criminal cases
  and appeals go to the court of criminal appeals
        Art. 22.11 SURETIES MAY
                 ANSWER
• Answer must be in writing and filed with the clerk of the court
• In County Ct. and Dist. Ct. cases it must be filed by 10am on the
  Monday after the expiration of 20 days from the day citation was
  served
• JP cts. it must be filed by 10am on Monday after the expiration of 10
  days from date citation was served
    Art. 22.11 ANSWERS (cont.)
• Answer should include a
  general denial

• Any DEFENSES must be
  specifically plead. The surety
  can always amend his answer
  later, but he cannot rely on a
  defense not plead!

• Beware! Ask for sanctions on
  sureties who file an answer
  asserting frivolous affirmative
  defenses!
          Scire Facias Docket
• “Scary Faces” docket
• All answered bond
  forfeiture cases should
  be set for trial by the
  court- this includes
  surety bonds, cash and
  personal bonds
      Scire Facias Docket cont.
• The docket should set all cases for trial to the
  court unless the surety has paid the filing fee and
  filed the request for a jury trial
• The surety and def. are entitled to at least 45 days
  notice of the first trial setting with 3 days for
  mailing
• Requests for continuance must be in writing and
  must be supported by affidavit
        Remittitur/Exoneration
• The surety is entitled to
  remittitur of the entire
  amount of the bond, less
  costs of court, interest and
  return costs if Def. is in
  custody at time of BF or if
  Def. returned within:
• 180 days in Misd.
• 270 days in Felony
 Art. 22.12 PROCEEDINGS NOT SET
   ASIDE FOR DEFECT OF FORM




• The bond, judgment nisi, citation and return shall
  not be set aside because of any form defect, but
  may be amended under the direction of the court
Art. 22.125 POWERS OF THE
           COURT
             • After Judgment Nisi is entered
               the court may proceed with
               trial. The court may
             • 1. Exonerate the def. &
               sureties from liability
             • 2. Remit the amount of
               forfeiture
             • 3. Set aside the forfeiture
               only as provided by this
               chapter.
             • 4. Approve any settlement
               agreed to by State & Def.
               & the Sureties
 Art. 22.13 CAUSES WHICH WILL
            EXONERATE
• 1. That the bond is not a valid & binding undertaking-if not valid to 1
  surety but still valid to Def. & other sureties-the bond is valid as to
  those. If the bond is not valid to sureties but to the principal then it is
  valid as to the principal only; if the bond is not valid to the principal
  then it is not valid to anyone
• 2. The death of the principal BEFORE the date of the forfeiture
Art. 22.13 (cont.)
         • 3. Sickness or some
           uncontrollable
           circumstance, but it must
           be shown that the failure
           to appear arose from no
           fault on the Def.‟s part and
           it shall not be deemed
           sufficient unless the def.
           appear to answer the
           accusation or show
           sufficient cause for not so
           appearing
           Art. 22.13 (cont.)
• Failure to present an indictment or
  information at the first term of court after
  the defendant is admitted to bail, where the
  def. was bound over before the indictment
  or information and the prosecution has not
  been continued by the court
               Art. 22.13 (cont.)
• Sec. 5 Incarceration of the defendant in any U.S.
  jurisdiction:
   – At the time of forfeiture or
• A.) in a misdemeanor no later than 180 days after the
  def.‟s failure to appear
• B.) in a felony no later than 270 days after the def.‟s failure
  to appear
Art. 22.13 (cont.)
         • A surety exonerated
           under Section 5(a)
           must still pay costs of
           court, necessary and
           reasonable return costs
           and interest from the
           date of the nisi to date
           of Def.‟s incarceration
          Judgment by Default
• When the sureties
  have been cited and
  fail to answer, and the
  def. also fails to
  answer, the court
  SHALL enter
  judgment final by
  default
 Art. 22.14 JUDGMENT FINAL
Where, upon trial, no sufficient cause is shown for
  the failure of the principal to appear, the judgment
  shall be made final against him and his sureties.
Collection is as in civil cases-Executions shall issue
  against each party and the costs shall be equally
  divided between the sureties, if there be more than
  one
Judgments hold each party jointly and severally
  liable
The State is not entitled to post-judgment interest, or
  attorney‟s fees
                Art. 22.16
• For other good cause shown and before the
  entry of a final judgment, the court in its
  discretion may remit all or part of the bond
  less court costs, interest and return costs.
• Interest begins to run on the date when the
  judge signs the judgment nisi until the date
  final judgment is entered
Final Judgment
        • If no Motion for New
          Trial is filed within 30
          days after the date of
          judgment-Judgment is
          Final!
        • If MNT filed within 30
          days and ct. overrules
          MNT or it is overruled by
          operation of law on the
          75th day after the date of
          judgment- Judgment is
          FINAL!
      Art. 22.18 LIMITATION
• An action by the State
  to forfeit a bail bond
  must be brought not
  later than the 4th
  anniversary of the date
  the principal fails to
  appear in court! (This
  applies to a bond
  written after 9-1-99)
SUCCESS!!!!

								
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