By Andrew Wipke & Jennifer Fox
Assistant County Attorneys in Fort Bend County
Neither bail bonds nor bond forfeitures are intended to enrich the coffers of a governmental entity.[1] Rather, the purpose of a bail bond is to ensure the appearance of the accused at required hearings.[2] However, portions of the costs recovered in bond forfeiture proceedings serve state and county purposes, and district and county attorney offices are eligible to receive a commission on amounts collected in bond forfeiture proceedings pursuant to §41.005 of the Government Code.[3]
Regardless of the reasons to pursue bond forfeiture collections, if you encounter an overdue bond forfeiture judgment, this article provides some background information which may assist in the collection of said judgment.
First, let us note what this article does not cover. It is neither a primer nor an overview of bond forfeitures;[4] other articles from past issues of this journal examine those topics.[5] Rather, this article explores bond forfeiture collections. If a defendant-surety[6] or a defendant-principal (a defendant who was released on bond) fails to timely pay a judgment, what tools may you employ to collect the judgment?
Chapter 22 of the Code of Criminal Procedure governs the forfeiture of bail bonds.[7] When a criminal defendant is bound by a bail bond and fails to appear for a requisite hearing, a judicial declaration of forfeiture must be taken against the defendant and the sureties, if any, on the bond.[8] This judicial declaration of a bond forfeiture is referred to as the “judgment nisi” and is an interlocutory, conditional judgment.[9] A judgment nisi “declares that the bond is forfeited unless the defendant shows good cause for his failure to appear.”[10] If insufficient cause is shown for the defendant-principal’s failure to appear at trial, then the judgment will be made final against the defendant-principal and the defendant-sureties, if any, “for the amount in which they are respectively bound.”[11]
While bond forfeitures concern criminal proceedings, these cases are governed by the Rules of Civil Procedure.[12] Thus, a final bond forfeiture judgment is subject to execution (enforcement) as in other civil actions.[13] If we assume no applicable post-judgment motions, such as a motion for new trial, are filed and if a final judgment is not timely paid (generally within 31 days from the entry of the judgment), then the judgment is subject to execution.[14] If you encounter an overdue bond forfeiture judgment, the below items may assist in the collection of the judgment.[15]
Abstracts of judgment
If a judgment is not timely paid, consider filing an abstract of judgment. This is a process that enables a person, in whose favor the court rendered judgment, to create a judicial lien on nonexempt real property[16] owned by the person against whom the judgment was rendered (the “judgment debtor”).[17] To be effective, the abstract of judgment must contain specified information, including the names and other identifying information of the parties, the amount of the judgment, and the balance due.[18]
The abstract is filed with the county clerk in the real property records of a county where the judgment debtor owns nonexempt real property (which may include the county where the judgment is taken and in any other county where the defendant possesses nonexempt real property).[19] When an abstract is properly recorded and indexed, the abstract of judgment creates a judgment lien that “is superior to the rights of subsequent purchasers and lien holders.”[20] Upon payment of the judgment amount by the judgment debtor, a release of the abstract judgment should be filed in the counties where the abstract was recorded.[21] While filing an abstract of judgment is a relatively quick process, it may take an extended amount of time to collect upon a judgment via an abstract of judgment. They often do not resurface in the real property records except when someone is seeking to sell property.
Writ of execution and motion for turnover
Although an abstract of judgment can be an effective enforcement mechanism, a writ of execution may be a quicker enforcement process.[22] A writ of execution is a judicial writ directing a sheriff or constable to enforce the judgment of any district, county, or justice of the peace court by seizing and selling any nonexempt property owned by the judgment debtor to satisfy the judgment.[23] Texas Rules of Civil Procedure 621 through 656 govern the procedures for obtaining and executing a writ of execution. A writ of execution is generally issued 30 days after the date the final judgment is signed.[24] However, it can be suspended if the defendant (judgment debtor) files a proper supersedeas bond.[25]
With certain exceptions, a judgment generally becomes dormant if a writ of execution is not issued within 10 years after the rendition of a judgment.[26] However, §52.006(b) of the Property Code prevents “a judgment in favor of the state or a state agency” from becoming dormant. While a county or district attorney’s office may be the entity which obtains a bond forfeiture judgment, the judgment is in favor of the State of Texas.[27] Thus, pursuant to §52.006(b) of the Property Code, a bond forfeiture judgment “does not become dormant.”
This section of the Property Code was enacted in 2007, and the Legislature expressly stated that this change in law applied to: “1) a judgment, if the judgment is not then dormant, that exists on the effective date of this Act; 2) a judgment lien on record before the effective date of this Act; or 3) a judgment entered or abstract of judgment recorded and indexed on or after the effective date of this Act.”[28] If a bond forfeiture judgment was not dormant on or before the change in law, then §52.006(b) prevents the judgment from becoming dormant.[29] If your jurisdiction has judgments that were dormant prior to 2007, §31.006 of the Civil Practice and Remedies Code prescribes how a dormant judgment may be revived. Generally, under §31.006, an action to revive a dormant judgment (known as a writ of scire facias) must be brought no later than the second anniversary of the date the judgment became dormant. However, pursuant to §16.061 of the Civil Practice and Remedies Code, a political subdivision of the state, such as a county, is not barred by this two-year limitations period. Thus, at any time, a county may revive a dormant bond forfeiture judgment.[30]
A motion for turnover, which is related to a writ of execution, “is a procedural mechanism by which a judgment creditor can reach assets of a judgment debtor that are otherwise difficult to attach or levy on by ordinary legal process.”[31] This motion enables a court to use its injunctive powers to compel the judgment debtor to turn over nonexempt property to a sheriff or constable for execution.[32] However, instead of the sheriff or constable selling the judgment debtor’s nonexempt property (as in a writ of execution), the court may appoint a receiver to receive and sell any nonexempt property and pay the proceeds to the judgment creditor to satisfy the underlying judgment.[33] A motion for turnover may be useful in situations when a defendant is secreting property in a home or other private place.
Attorney bonds
In certain situations, an attorney may be able to write a bail bond and act as surety.[34] Periodically, an attorney, like other bail bond sureties, will fail to pay a final judgment. Rather than using the enforcement methods described above, §154.045 of the Local Government Code provides another avenue to collect these judgments. Section 154.045(b) generally prohibits a county from paying a person indebted to the county until the person is notified of the debt and the debt is paid. If an attorney fails to timely pay a bond forfeiture judgment and this attorney is on any of the county’s court appointment lists, then the county cannot pay the attorney until the bond forfeiture judgment is paid. The county should abstract the debt and notify the attorney in writing of the debt as required by §154.045(b)(1). Further, the notification to the attorney may include a “statement that the amount owed by the county to the person [for court-appointed related work] may be applied to reduce the outstanding debt.”[35] If properly notified, the county may reduce the amount owed to an attorney for court appointment-related work by the amount of the bond forfeiture judgment under §154.045(c).
If you practice in a county with a bail bond board, attorneys are exempt from the licensing requirements of Chapter 1704; however, attorneys are still subject to the other regulatory aspects of Chapter 1704.[36] For example, an attorney acting as a surety “may not engage in conduct involved with that practice that would subject a bail bond surety to license suspension or revocation” or the attorney risks having his bonding privileges revoked by the local bail bond board.[37] The failure to pay a final bond forfeiture judgment can lead to suspension or revocation of an attorney’s ability to write bonds for his clients.[38] Sometimes a friendly reminder that a bail bond board is able to suspend or revoke an attorney’s bonding privileges may spur payment of any outstanding judgments.
Notification to sheriff and withdraw of security
Sureties operating in counties without a bail bond board are governed by Chapter 17 of the Code of Criminal Procedure.[39] Chapter 17 generally governs procedures and requirements for taking bond.[40] Under this framework, a bail bond surety must offer sufficient security.[41] When bail is being taken, a sheriff is in the position to evaluate the sufficiency of the security. Code of Criminal Procedure Arts. 17.11, 17.13, and 17.14 give a sheriff broad discretion in determining whether security offered by a specified surety is sufficient, “including the discretion to consider other bonds executed by the surety.”[42] If a person is in default on a prior bail bond judgment, he is disqualified to serve as a surety until the prior judgment is paid.[43] If a bondsman defaults on a judgment in your county and the bondsman also does business in other non-bail bond board counties, please consider notifying the sheriffs in all of these counties.[44] If the other counties are notified, then the surety should be prohibited from writing bonds in these counties, giving the surety an incentive to promptly rectify this situation, including paying any outstanding judgments.
Similarly, in bail bond board counties, if a surety fails to pay a final judgment, the bail bond board is required to notify the sheriff.[45] Upon notification, the sheriff may not accept bonds from the surety until the judgment is paid. When the judgment is paid, the surety’s privilege to write bonds is reinstated.
Further, in a bail bond board county, if a surety licensed in the county does not pay a final judgment, then the judgment will be paid from the security deposited or executed by the surety.[46] The failure to pay a final bond forfeiture judgment is also grounds to suspend or revoke a surety’s ability to write bonds.[47]
Report unpaid judgment to the Texas Department of Insurance
In a bail bond board county, if an insurance corporation acting as a surety does not pay a bond forfeiture judgment, the judgment should be reported to the Texas Department of Insurance (TDI).[48] Sometimes informing the insurance corporation that the county intends to report the unpaid judgment to TDI may aid in securing payment, because the Texas Department of Insurance is responsible for licensing these insurance corporations to write surety bonds.[49]
Rule 11 Agreement
A Rule 11 agreement is an agreement made between the attorney or parties in a pending suit. Agreements made under T.R.Civ.P. 11 are not a per se bond forfeiture collection method. However, depending on the situation, such an agreement may be used for payment of a bond forfeiture judgment. Some jurisdictions will use Rule 11 agreements, especially in situations where large bonds are forfeited, to better specify payment terms and the timing of payment(s). A Rule 11 agreement is enforceable if it is “in writing, signed and filed with the papers as part of the record, or … made in open court and entered of record.”[50] If your jurisdiction believes that a Rule 11 agreement is appropriate in certain instances involving a bond forfeiture collection, it may be an easier way to collect on non-payment of judgments.
[1] Gramercy Ins. Co. v. State, 834 S.W.2d 379 (Tex. App.—San Antonio 1992, no pet.) (internal citations omitted).
[2] See generally Trammel v. State, 529 S.W.2d 528, 529 (Tex. Crim. App. 1975).
[3] “The district or county attorney may retain a commission from money collected for the state or a county. The amount of the commission in any one case is 10 percent of the first $1,000 collected, and five percent of the amount collected over $1,000.” Tex. Gov’t Code §41.005(b). See also Tex. Att’y Gen. Op. Nos. KP-0030 (2015), GA-0997 (2013).
[4] “Bail” means “the security given by the accused that he will appear and answer before the proper court the accusation brought against him and includes a bail bond or a personal bond.” Tex. Code Crim. Proc. Art. 17.01. A “bail bond” is “a written undertaking entered into by the defendant and the defendant’s sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation.” Id. Art. 17.02.
[5] See generally Skyler Schoolfield, A guide to bond forfeitures, The Texas Prosecutor (September-October 2022) at 33; Benjamin I. Kaminar, Forfeiting bail bonds, The Texas Prosecutor (November-December 2018) at 17.
[6] The defendant-surety executes a bond for another person (i.e., the defendant-principal). See generally Tex. Occ. Code §1704.001(2).
[7] See Tex. Code Crim. Proc. Arts. 22.01–.18. There are multiple types of bail bonds. Bail under the Code of Criminal Procedure includes both bail and personal bonds. Id. Art. 17.01. Article 17.02 permits a bail bond to be in the form of a surety bond or a cash bond. Id. Art. 17.02. Instead of a surety bond, Art. 17.02 authorizes the defendant to execute a bail bond and deposit “current money of the United States” in an amount equal to the bond into the court registry. Id. This cash deposit by a defendant is known as a “cash bail bond.” Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999). Alternatively, at the discretion of a court, a person may be released on a “personal bond without sureties or other security.” Tex. Code Crim. Proc. Art. 17.03(a). See also Id. Art. 17.04. This article is primarily concerned with surety bonds.
[8] Tex. Code Crim. Proc. Arts. 22.01, .02.
[9] Jackson v. State, 422 S.W.2d 448 (Tex. Crim. App. 1968); see also State v. Sellers, 790 S.W.2d 316, 320 (Tex. Crim. App. 1990).
[10] Int’l Fid. Ins. Co. v. State, 71 S.W.3d 894, 896 (Tex. App.—Texarkana 2002, no pet.) (internal citation omitted).
[11] Tex. Code Crim. Proc. Art. 22.14.
[12] Id. Art. 22.10.
[13] Id. See also Tex. Att’y Gen. Op. No. JM-779 (1987).
[14] Tex. Occ. Code §1704.204. See also Tex. R. Civ. P. 627. There are situations in which execution may occur before the expiration of 30 days. See Tex. R. Civ. P. 628.
[15] If you encounter any delinquent bond forfeiture judgments, it would be advisable to maintain some sort of list concerning these judgments, such as an Excel spreadsheet, an automated report from your case management system, or something similar.
[16] Nonexempt real property is property such as land (and anything growing upon or attached to it) that is not exempt from forced sale or seizure by law. See Tex. Prop. Code §52.001; see also San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 640 (Tex. 2000).
[17] Tex. Prop. Code §52.001. In Texas, a judgment is insufficient on its own to create a lien. Burton Lingo Co. v. Warren, 45 S.W.2d 750, 751–52 (Tex. Civ. App.—Eastland 1931, writ ref’d). An abstract of judgment “[creates] a lien against the debtor’s property and [provides notice] to subsequent purchasers and encumbrancers of the existence of the judgment and the lien.” Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668 S.W.3d 745, 761 (Tex. App.—El Paso 2022, no pet.).
[18] Tex. Prop. Code §§52.001, .003.
[19] See generally Hibernia Energy, 668 S.W.3d at 761; Tex. Prop. Code §§552.001, .004.
[20] John F. Grant Lumber Co. v. Hunnicutt, 143 S.W.2d 976, 976 (Tex. Civ. App.—Waco 1940, no writ).
[21] See Tex. Prop. Code §52.005.
[22] See generally Tex. Code of Crim. Proc. Art. 22.14.
[23] Tex. R. Civ. P. 621, 622, 629, 637. See also Tex. Att’y Gen. Op. No. JC-0377 (2001) at 4.
[24] Tex. R. Civ. P. 627. Generally, a writ of execution may not issue until “after the expiration of 30 days from the time a final judgment is signed” or, if a motion for new trial is filed, 30 days “from the time the order overruling the motion is signed or from the time the motion is overruled by operation of law.” Id. There are situations in which execution may occur before the expiration of 30 days. See Tex. R. Civ. P. 628.
[25] Tex. R. Civ. P. 634; Tex. R. App. P. 24.1(f); In re City of Cresson, 245 S.W.3d 72, 75 (Tex. App.—Fort Worth 2008) (orig. proceeding).
[26] Tex. Civ. Prac. & Rem. Code §34.001(a).
[27] Bond forfeiture judgments are “entered that the State of Texas recover of the defendant the amount of money in which he is bound, and of his sureties, if any, the amount of money in which they are respectively bound.” Tex. Code Crim. Proc. Art. 22.02. See also Tex. Att’y Gen. Op. No. GA-0903 (2011) at 1.
[28] Act of April 4, 2007, 80th Leg., R.S., ch. 11, §2.
[29] Tex. Att’y Gen. Op. No. GA-0903 (2011) at 1; $60,427.11 U.S. Currency v. State, No. 02-18-00165-CV, 2019 WL 3024475 at *4 (Tex. App. — Fort Worth 2019, no pet.) (mem. op.).
[30] See Tex. Att’y Gen. Op. No. GA-0903 (2011) at 2. If a judgment is revived, then the county may also file an abstract of judgment according the procedures prescribed in Chapter 52 of the Property Code. See Tex. Att’y Gen. Op. No. GA-0903 (2011) at 2.
[31] Gerjets v. Davila, 116 S.W.3d 864, 868 (Tex. App.—Corpus Christi 2003, no pet.).
[32] Tex. Civ. Prac. & Rem. Code §31.002(b)(1).
[33] Id. §31.002(b)(3).
[34] See generally Tex. Occ. Code §1704.163, Tex. Code Crim. Proc. Art. 17.10.
[35] Tex. Loc. Gov’t Code §154.045(c).
[36] See Minton v. Frank, 545 S.W.2d 442, 445 (Tex. 1976) (construing the statutory predecessor to Chapter 1704).
[37] Tex. Occ. Code §1704.163(b).
[38] Id. §§1704.252(8), .253(b)(1); see also Tex. Att’y Gen. Op. No. GA-0197 (2004).
[39] See generally Tex. Code Crim. Proc. Arts. 17.11, .13; Tex. Occ. Code §1704.002.
[40] See Tex. Att’y Gen. Op. No. JC-0541 at 2 (2002).
[41] Tex. Code Crim. Proc. Art. 17.11, §1 provides that “one surety shall be sufficient, if it be made to appear that such surety is worth at least double the amount of the sum for which he is bound, exclusive of all property exempted by law from execution, and of debts or other encumbrances; and that he is a resident of this state, and has property therein liable to execution worth the sum for which he is bound.” The officer who takes the bail bond may require an affidavit attesting to the surety’s worth. See id. Art. 17.13.
[42] Tex. Att’y Gen. Op. No. DM-483 at 5 (1988).
[43] Tex. Code Crim. Proc. Art. 17.11, §2; Tex. Att’y Gen. Op. No. GA-0903 at 3 (2011).
[44] Id.
[45] Tex. Occ. Code §1704.2535(a).
[46] Id. §1704.204(b). If the required withdraw of funds causes the surety’s security to fall below the requisite limits of § 1704.160, then the surety is required to replenish those funds. Id. §1704.206.
[47] Id. §§1704.252(8), .253(b)(1); see also Tex. Att’y Gen. Op. No. GA-0197 (2004).
[48] Tex. Occ. Code §1704.108. Additionally, a “corporation may not act as a bail bond surety in a county in which the corporation is in default on five or more bail bonds.” Id. §1704.212(a).
[49] See generally Tex. Occ. Code §§1704.152(b)(2), .154(b)(2)(B)(ii).
[50] Id. See also Shamrock Psychiatric Clinic, P.A. v. Tex. Dep’t of Health & Hum. Servs., 540 S.W.3d 553, 561 (Tex. 2018).