The Texas Prosecutor, November-December 2018

Forfeiting bail bonds

“Counsel, I have a jury waiting. Where is your client?”
    These are words that no defense attorney wants to hear. They also indicate a great deal of time and preparation on prosecutors’ part are about to go to waste. Sometimes, there’s a legitimate reason for the defendant’s failure to appear, such as a car accident en route to court or a child who had to go to the emergency room. Far more often, however, the defendant is starring in his own lousy remake of The Fugitive, minus the Tommy Lee Jones and Harrison Ford star power. So, what happens when the defendant demands his day in court and then skips it?

The bond
Before we go about dealing with our absentee defendant, we need to back up to the event that set this chain of events in motion: the defendant’s release from custody. The right to have bail set is enshrined in Article I, §11 of the Texas Constitution. Bail, as defined by Art. 17.01 of the Code of Criminal Procedure, is “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 personal bond.” Art. 17.02 tells us that a bail bond is the written agreement by the defendant and his sureties that the defendant will appear in court. In lieu of sureties, a defendant has the right to deposit his bail in cash with the court in which his prosecution is pending. Under Art. 17.03, a personal bond (sometimes wrongly called a “personal recognizance” or “PR bond”)1 is a bond without any sureties or security. For most purposes, surety bonds, cash bonds, and personal bonds are treated identically.2 CCP Chapter 17 in general sets out the requirements for a bond, as well as various procedures related to bond conditions, holding bonds insufficient, and surrender of bonds.
    When released from custody on bond, the defendant must be told in the bond itself where and when he is to appear, as well as at any time and place required by the court or magistrate thereafter.3 “Where” is typically satisfied by specifying the district or county court at the courthouse, rather than specifically listing which numbered district court or county court-at-law. “When” may be by listing a date and time certain, but it is far more likely to be “instanter.” “Instanter” means right away or immediately, but in practice it means that the defendant will be directed to appear once the case is filed. A bond that doesn’t tell a defendant when and where to show up will be fundamentally defective; a defendant can’t be penalized for failing to appear if his bond didn’t say when and where he had to appear. The use of instanter in a bond has been upheld by the Court of Criminal Appeals in Euziere v. State.4

The forfeiture
Starting the bond forfeiture process is simple. “When a defendant is bound by bail to appear and fails to appear,” the court is required to enter a judicial declaration of the bond forfeiture.5 Forfeiture is taken by distinctly calling the defendant’s name three times at the courthouse door and waiting a reasonable time for him to appear.6 Although the statute dictates the “courthouse door,” calling his name outside the courtroom door is sufficient.7 Frequently, the bailiff performing this duty will complete a certificate documenting the call and file it with the court. The court then enters judgment nisi8 in favor of the State for the amount the defendant and his sureties are bound, unless good cause is shown why the defendant did not appear.9 For purposes of a forfeiture proceeding, both the original defendant and his sureties are named as defendants; the original defendant becomes the “defendant-principal” while the sureties each become a “defendant-surety.”10
    At this point, it is critical to identify the proper parties to be included. The defendant is a necessary party and, if he executed a cash or personal bond, the only party. To determine the proper surety, however, you have to know a little bit about the bondsman’s business structure.
    Bail bondsmen fall into two broad categories, property and insurance bondsmen. Generally speaking, property bondsmen are individuals DBA (doing b