Bond Forfeitures: Nuts and Bolts

TAC SPRING JUDICIAL EDUCATION CONFERENCEMARCH 2019

Road Map

Types of Bail Bonds

How Bail Bonds are Forfeited

How Bail Bond Forfeitures Cases are Resolved

Definition of Bail

Security given by the accused that he willappear and answer before the propercourt the accusation brought against him.

Types of Bail Bonds

Cash Bonds

Surety Bonds

Personal Bonds

Requisites of Bail Bonds

Made payable to the State of Texas

The defendant and sureties, if any, bind themselves to appear before the proper court or magistrate to answer the accusation

Must state whether the charge is a felony or misdemeanor

Must be signed by name or mark with address of the defendant and surety

Requisites of Bail Bonds Continued

Bond must state the time and place, when and where the defendant is to appear and the court or magistrate before whom he is to appear

The Bond must also bind the defendant to appear before any court/magistrate where the case may thereafter be pending at any time and place where the defendant’s presence is required

“Requisites” is a loose term

Failure to state the date and court where a defendant wasrequired to appear is not fatal. Scott v. State, 617 S.W.2d 691, 692(Tex. Crim. App. 1981).

Defendant’s failure to write his address on the bond is not fatal.Smith v. State, 566 S.W.2d 638, 639 (Tex. Crim. App. 1978).

A surety can waive insufficiencies in the bond by signing thebond without insisting the corrections be made. Balboa v.State, 612 S.W.2d 553, 555 (Tex. Crim. App. 1981); Marroquinv. State, 953 S.W.2d 829 (Tex. App.—Corpus Christi 1997).

Liability Ends When:

Liability for the Defendant and the Suretyends when the Defendant

Receives an order of deferred adjudication; Is acquitted; Is sentenced; Is placed on community supervision; or Has his case dismissed

Forfeiture of Bail

If a Defendant is on bond and fails to appear, a judicialdeclaration of forfeiture SHALL be taken.

Suggested Court Procedure to Forfeit Bail

Defendant’s name called at Docket * If Defendant does not answer, the Prosecutor

should make an oral motion for forfeiture Bailiff or clerk calls Defendant’s name in hallway or

at door The Court waits a “reasonable amount of time” for

Defendant to appear The Judge grants the motion for forfeiture Clerk, DA, CDA, or CA prepare judgment of

forfeiture (Judgment Nisi) for the Judge’s signature

Citation

Prepared by the Clerk – as other civil citations EXCEPT itmust say, “appear and show cause why the judgmentshould not be made final.”

Copy of Judgment Nisi must be attached.

Can be served by Sheriff, Constable, anyone over 18authorized by law or written order of court, but cannot beinterested in the outcome.

Can also be served by certified mail or publication.

The Correct Defendants“Principle” is the Defendant who was bonded out of jail

Principal’s name must appear as it is written on the bond

Bond = Martha Stewart

Judgment Nisi must name Martha Stewart.

Acceptable to include “Martha Stewart aka Martha Stuart” in the Judgment Nisi.

The Correct Defendants Continued“Surety” is the bonding company.

• Individual SuretiesGenerally sole proprietorshipsEx. Michael Calvillo d/b/a Michael Calvillo Bail Bond

• Corporate SuretiesInsurance CompaniesEx. Financial Casualty and Surety, Inc. d/b/a Cowboy Bail Bonds

Who May be a Surety?

Non-Bail Bond Board Counties Sheriff Approval Within past two years, complete 8 hours of continuing

legal education No final conviction of misdemeanor involving moral

turpitude or a felony

Bail Bond Board Counties License Approval and Renewal by the Bail Bond Board No final conviction of misdemeanor involving moral

turpitude or a felony

How to Serve the Defendant – Principle

Cash bond Defendant must be served at address on

the bond or last known address. Surety bondNo address on bond – no service

requiredAddress on bond – serve at that addressor last knownBy Regular Mail

How to Serve Surety – Bonding Co.

Citation as in all civil matters

Individual or attorney surety –serve individual or attorney on bond

Corporate surety –service must be had on the agentdesignated for service by the corporationpursuant to Chapter 804 of the TexasInsurance Code (CCP 22.03(c)).

The Judgment Nisi

Must be filed within 4 years of the failure to appear

Best practice – file as soon as possible

Required Elements of Judgment Nisi

Must include exact date of the failure to appear

Must include the correct amount of the bond

Must state whether the Defendant is charged with a felonyor misdemeanor

Naming the Correct Defendants

Scire Facias Docket

“Scire facias” A writ requiring the person against whom it

is issued to appear and show cause whysome matter of record should not beenforced, annulled, or vacated. BLACK'S LAWDICTIONARY (10th ed. 2014).

The scire facias docket is a civil docket. Oncethe Judgment Nisi is filed the matter proceedsas all other civil matters. CCP 22.10.

Answer

Answers are due just as in civil cases – 10:00 a.m. on the Monday following 20 days after service. TRCP 99.Can be a general denialBut must include affirmative defenses

Default Judgment can be entered if no answer is received, but the return must be on file with the Clerk’s Office for at least ten days.

Discovery

CCP 22.10 states that bond forfeiture proceedingsare governed by the civil rules

Discovery rules should apply as in all civil cases

Settlement Negotiations

Texas Occupations Code § 1704.205and the Code of Criminal ProcedureArt. 22.125, permit the State torecommend a settlement to theCourt in an amount less than theamount stated in the bond.

Causes which will Exonerate the Defendant and the Surety Not a valid and binding bond The Death of the principle BEFORE the date of the forfeiture Sickness or uncontrollable circumstance arising from no fault of the Defendant AND

Defendant must appear before final judgment of bond forfeiture Failure to Present an indictment or information at first term of the court which may

be held after the principal has been admitted to bail, in case where the party wasbound over before indictment or information, and the prosecution has not beencontinued by order of the court

The surety is entitled to remitter of the entire amount of the bond, less costs of court,interest and return costs, if Defendant is in custody at time of bond forfeiture or ifDefendant is incarcerated within a specified time frame for misdemeanor or felonyoffenses

Defenses – CCP 22.13

Sickness or Uncontrollable Circumstance• Sickness or “uncontrollable circumstance” and no fault of the defendant• Must appear in court after forfeiture and before final judgment

Return to Custody

• Within 180 days for misdemeanor• Within 270 days for felony• Must still pay costs of court, cost to return defendant to custody, and interest

on the bond from the date of Judgment Nisi to defendant’s return to custody

Remittitur – CCP 22.16

AFTER Judgment Nisi is filed, but BEFORE final judgment.

Mandatory –defendant is returned to custody AND either: Re-bonded out of jail on same offense; OR Criminal case is DISMISSED (not disposed).

Discretionary – defendant is returned to custody, BUT not bonded out again and case not dismissed (even if case is otherwise disposed).

NOTE: Both REQUIRE the defendant is returned to custody

Calculating the Mandatory Remittitur

All of the bond must be returned to the DefendantLESS

1. Costs of Court

2. Costs to return the Defendant to custody; and

3. Interest on the bond from date of forfeiture through finaljudgment at same rate as accrual of prejudgment interest incivil cases (currently 5.50% - www.occc.texas.gov)

http://www.occc.texas.gov/

Calculating the Discretionary Remittitur

All or part of the bondLESS

1. Costs of Court

2. Costs to return the Defendant to custody; and

3. Interest on the bond from date of forfeiture throughfinal judgment at same rate as accrual ofprejudgment interest in civil cases (currently 5.50% -www.occc.texas.gov)

http://www.occc.texas.gov/

Consider the following factors: Whether the accused’s failure to appear in court was willful; Whether the delay caused by the accused’s failure to appear in

court prejudiced the State or harmed the public interest; Whether the surety participated in the re-arrest of the accused; Whether the State incurred costs or suffered inconvenience in the

re-arrest of the accused; Whether the surety received compensation for the risk of

executing the bail bond; and Whether the surety will suffer extreme hardship in the absence of a

remittitur.

Calculating the Discretionary Remittitur

Bond Forfeiture Trials

4 FACT ISSUES Whether there is a valid bond Whether the Defendant’s name was called at the courthouse door Whether the Defendant failed to appear Whether the Defendant had a valid reason for not appearing

1-3 are the State’s burden 4 is the Defendant-Principle and Defendant-Surety’s burden

Notice of Trial

45 days notice required to:Defendant-PrincipleDefendant-Surety

(If any party is represented by anattorney, then notice must be sentto the attorney, not the party)

Jury trial – written request and feemust be filed no less than 30 daysbefore trial. TRCP 216

Standard is the preponderance of theevidence.

Bond and Judgment Nisi are sufficientto meet State’s prima facia case.

State’s Burden

Judgment

Trial court may exonerate a surety fromliability ONLY as authorized by theprovisions of Chapter 22 of the CCP

Clerk must send notice of judgment toall adverse parties

Judgment becomes final in 30 daysunless a motion for new trial is filed

Execution Subject to execution as in civil actions. CCP 22.14 Abstract of judgment – in any county where surety owns property Writ of execution Motion for turnover Report to TDI – Commissioner of Insurance Report to Bail Bond Board (judgment must be paid from security on file - Tex.

Occup. Code 1704.204) Attorney surety – if attorney also on appointment list for county, attorney is a

vendor. Tex. Local Gov’t Code 154.045 prevents payment to vendors whoowe debt to county or state.

Defendant has to file a supersedeas bond to prevent execution, onlyavailable if on appeal.

General Bill of Review Texas Civil Practice and Remedies Code § 16.051 and Texas

Rule of Civil Procedure 329b(f). Four years to file after judgment is finalMeritorious defense Prevented from making by fraud, accident or wrongful act

by state No fault or negligence on defendant/surety’s part Sworn to by actual party, not party’s attorney

State must answer and objections to the Petition must be through special exceptions

Special Bill of Review

Unique to bond forfeiture – CCP 22.17 Available if, AND ONLY IF, the Defendant is returned to custody within

2 years of final judgment.

All or part of the bond MAY be remitted LESS

Costs of court Cost to return the Defendant to custody Interest from the date of Judgment Nisi to final judgment AND from final

judgment to order granting bill of review

Special Bill of Review ContinuedFactors to consider when remitting all or part of the bond:

The purpose of bail is to secure the presence of the Defendant fordisposition of the criminal charges against him;

A bail bond is not punitive, nor is it intended to be a substitute for a fineor revenue device to enrich the government’s coffers;

The government’s cost and inconvenience in regaining custody; The delay caused by the Defendant’s breach of bond conditions; The public interest in ensuring the Defendant’s appearance; The participation of the surety in re-arresting the Defendant; and Prejudice suffered by the government.

Appeal

The State has no right to appeal

Civil Appellate Rules apply to appeal

Court of Criminal Appeals has final jurisdiction because bond forfeiture is a criminal matter

Surety/Attorney Off-Bond

CCP 17.16

CCP 17.19

Questions?

Andrew WipkeAssistant District AttorneyLubbock County Criminal District Attorneyawipke@co.lubbock.tx.us (806) 775-1112

Bond Forfeitures: Nuts and BoltsRoad Map Definition of Bail Types of Bail Bonds Requisites of Bail BondsRequisites of Bail Bonds ContinuedSlide Number 7“Requisites” is a loose termLiability Ends When:Forfeiture of BailSuggested Court Procedure to Forfeit BailSlide Number 12CitationThe Correct DefendantsThe Correct Defendants ContinuedWho May be a Surety?Slide Number 17Slide Number 18How to Serve the Defendant – PrincipleHow to Serve Surety – Bonding Co.The Judgment NisiRequired Elements of Judgment NisiSlide Number 23Slide Number 24Scire Facias DocketAnswerDiscoverySettlement NegotiationsCauses which will Exonerate the Defendant and the SuretyDefenses – CCP 22.13Remittitur – CCP 22.16Calculating the Mandatory RemittiturSlide Number 33Slide Number 34Bond Forfeiture TrialsNotice of TrialSlide Number 37JudgmentExecutionGeneral Bill of ReviewSpecial Bill of ReviewSpecial Bill of Review ContinuedAppealSurety/Attorney Off-BondSlide Number 45Questions?�