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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