Benjamin I. Kaminar
“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?
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
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 business as) their bonding company name, and their bonds are backed by a cash deposit or real property under a deed of trust.11 Insurance bondsmen will also operate under a DBA, but they are agents for an insurance company that backs the bonds. For a property bondsman, the party to include is the bondsman himself;12 for an insurance bondsman, the proper party is the insurance company, not the local bondsman/agent.13 It’s possible for a bondsman to have licenses both as an individual and as an agent for an insurance company, so it pays to always check the bond to see which license the bondsman was acting under.14
Citation and service
After the judgment nisi has been entered, citation must issue as with any civil proceeding. Different rules apply to the defendant and the sureties. For the defendant, if he posted a cash bond, citation will be served to his address as listed on the bond or to his last known address. If he had sureties, he is entitled to have notice deposited in the mail directed to him at his address on the bond or last known address. Sureties are entitled to citation under the same rules as in any other civil action. Individual sureties should be served at the address they listed on the bond or their last known address, while corporate sureties should be served through their attorneys for service of process.15 The Texas Department of Insurance maintains a webpage for looking up company profiles, which include their attorney for service.16
Any citation issued is required to include a copy of the judgment nisi, a copy of the forfeited bond, and (if an insurance bondsman) a copy of any power of attorney attached to the forfeited bond. The citation must also instruct the defendant and sureties to “appear and show cause why the judgment of forfeiture should not be made final.”17 Failure to include that specific language in the citation or failure to attach any required copies may be fatal to the forfeiture.18 Return of service for the sureties is the same as in civil cases;19 however, because mailing the defendant’s notice doesn’t necessarily create a record of that mailing, it is frequently useful to have the clerk sending the notice complete a certificate of mailing for the court’s file to document that fact and head off an appellate issue.
Answer and trial
Once served, the parties have the usual time as in civil cases to file an answer. However, Art. 22.13 limits the defendant and sureties to five grounds for exoneration “and no other.” The first defense is that the bond is not a valid and binding undertaking in law.20 When this defense is asserted in the context of arguing that the bond omitted one of the requisites listed in Art. 17.08, the Court of Criminal Appeals has held that those elements are required for the benefit of the defendant and sureties.21 If not insisted on at the time of the execution of the bond, the defendant or surety may not complain about the defect for the first time after forfeiture. A bond will also be considered a valid undertaking even if the defendant is not actually released but instead transferred to some other agency, such as when a defendant posts a bond and is transferred to ICE custody.22 On the other hand, a bond was held to be invalid where multiple identical bonds were posted for a charge without a finding of some defect or insufficiency in the first bond.23
The second ground for exoneration is the defendant’s death before the forfeiture,24 a logical defense as the dead typically have difficulty appearing for trial. However, the defendant’s death after the forfeiture is not a defense.225 Ground No. 3 is the defendant’s sickness or some uncontrollable circumstance preventing his appearance in court.26 To assert this defense, the circumstance must arise from no fault of the defendant, and the defendant must appear to answer the original charge against him.27 This will be a fact-specific issue in each case. Some circumstances that have not saved a defendant from liability under this defense are incarceration in a Mexican prison28 and deportation from the United States.29
The fourth ground for exoneration is the failure to present an information or indictment at the first term of court after the defendant posted the bond.30 Terms of court are set by statute for district courts31 and by the commissioners court for the constitutional32 and most statutory county courts.33 This effectively sets an “indict by” date for bond forfeiture purposes.
Finally, the fifth ground for exoneration is that the defendant was incarcerated anywhere in the United States within 180 days of his failure to appear on a misdemeanor or 270 days on a felony.34 The defendant does not have to have actually been returned to the county for this defense to apply.35 A surety exonerated under this defense will still have some financial liability, although less than the full amount of the bond36 (more on that later).
Typically, a surety’s answer will plead all five statutory defenses under the logic that if he doesn’t plead it, he won’t be allowed to prove it. The defendant will often not answer at all, which can prove useful in rebutting an excuse offered at a later trial for the offense of bail jumping. After the surety’s answer has been filed and the time for the defendant’s answer to be filed has run, the final forfeiture hearing is a fairly straightforward matter. The essential elements of the State’s case in a bond forfeiture proceeding are the bond and the judgment nisi.37 The court may take judicial notice of both.38 Additionally, as a bail proceeding not relating to a motion to increase, deny, or revoke bail, the rules of evidence do not apply.39 If the defendant or sureties fail to establish one of their defenses, the judgment shall be made final.40
Forfeiting a bond
Once we’ve successfully run through the gauntlet of requirements to get to a final judgment, the question is, “How much of the bond does the county get?” The bond obligates the defendant and sureties for the amount of the bond, as well as all necessary and reasonable expenses incurred to re-arrest the defendant.41 The sureties are also liable for court costs for the forfeiture proceeding.42 If the surety has been exonerated because of the defendant’s re-arrest, the surety still has to pay court costs and expenses, plus interest accrued on the bond from the date of the judgment nisi through the date of re-arrest.43 Caselaw is remarkably scarce on what expenses are reasonable. For a defendant who is re-arrested locally, expenses directly related to the re-arrest may be nonexistent. On the other hand, for a defendant apprehended out of state, the sheriff may have to pay for deputies to travel and bring the defendant back. In some counties, transport service may be contracted out.
If the defendant had a bondsman, receiving payment on the judgment is often a fairly simple matter of the bondsman writing a check.44 In a county regulated by a bail bond board where a bondsman has security deposited with the county, after 30 days an unpaid judgment shall be paid out of his deposit.45 Bondsmen try to avoid that whenever possible because their bonding limits are a multiple of their deposits; less money on deposit means they can write fewer bonds. If the defendant posted a cash bond, an order directing the money paid out of the court registry should accompany the final judgment. Although the custodian of funds of the “court in which the prosecution is pending”46 is the proper custodian for cash bonds, it is not unusual for the sheriff to fail to transfer them to the proper court and instead maintain custody for the duration of the prosecution.47 In such a case, an order to the sheriff to relinquish the bond should suffice.
If you really want to get any unpaid amounts out of a defendant and you don’t mind being paid pennies at a time over the course of years, you’re in luck. For Texas Department of Criminal Justice (TDCJ) inmates, the Government Code authorizes withdrawals from inmate trust accounts (aka “commissary”) for satisfaction of unpaid judgments.48 This authorization is not limited to criminal fines and restitution but includes “any other court order, judgment, or writ.”49 The Office of Court Administration has sample Inmate Withdrawal Orders available online.50
Finally, if the defendant posted a personal bond, good luck with that. Personal bonds are frequently the result of a defendant too indigent to post any other type of bond. Even when not the result of indigence, locating assets subject to execution can be a Herculean undertaking that costs more in time and effort than will ever be recovered.
But wait, there’s more!
So far, we’ve discussed only how to pursue forfeiture of the defendant’s bond. However, his failure to appear probably constitutes the criminal offense of bail jumping. While related to the civil forfeiture proceeding, a bail jumping prosecution follows the same course as any other criminal case. We’ll cover how to put together a bail jumping trial, including what we can use from the forfeiture proceeding, in a future article.
Until then, good luck recovering those personal bonds!
1 Release on personal recognizance technically means release without a bond, whereas a personal bond is a bond, and some form of bond is almost always required for release in Texas.
2 For purposes of this article, “bond” means any of the three types of bond unless otherwise specified.
3 Tex. Code Crim. Proc. Art. 17.08.
4 648 S.W.2d 700 (Tex. Crim. App. 1983).
5 Tex. Code Crim. Proc. Art. 22.01.
6 Tex. Code Crim. Proc. Art. 22.02.
7 Aspilla v. State, 952 S.W.2d 610 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
8 A judgment nisi is a conditional judgment that will become final if a specified condition is or is not met.
9 Tex. Code Crim. Proc. Art. 22.02.
10 For purposes of this article, we will use “defendant” only to refer to our original criminal defendant.
11 If the county is regulated by a bail bond board; in counties without a board, the sheriff is responsible for verifying security.
12 E.g., “Bob Bondsman d/b/a Fugitive’s Choice Bail Bonds.”
13 E.g., “Never Showing Up Insurance by and through Bob Bondsman d/b/a Fugitive’s Choice Bail Bonds.”
14 Tex. Atty. Gen. Op’n. LO-96-019.
15 Tex. Code Crim. Proc. Art. 22.03.
17 Tex. Code Crim. Proc. Art. 22.04.
18 Hubbard v. State, 814 S.W.2d 402 (Tex. App.—Waco 1991, no pet.).
19 Tex. Code Crim. Proc. Art. 22.05.
20 Tex. Code Crim. Proc. Art.22.13(a)(1).
21 Balboa v. State, 612 S.W.2d 553 (Tex.Crim.App. 1981).
22 Reyes v. State, 31 S.W.3d 343 (Tex. App.—Corpus Christi 2000, no pet.).
23 Surety Ins. Co. v. State, 500 S.W.2d 119 (Tex.Crim.App. 1973).
24 Tex. Code Crim. Proc. Art. 22.13(a)(2).
25 Herndon v. State, 505 S.W.2d 546 (Tex.Crim.App. 1974).
26 Tex. Code Crim. Proc. Art. 22.13(a)(3).
28 Hill v. State, 955 S.W.2d 96 (Tex.Crim.App. 1997).
29 Allegheny Cas. Co. v. State, 163 S.W.3d 220 (Tex. App.—El Paso 2005, no pet.)).
30 Tex. Code Crim. Proc. Art. 22.13(a)(4).
31 Tex. Gov’t Code §24.012.
32 Tex. Gov’t Code §26.002.
33 See generally Tex. Gov’t Code §25.0016; the creating statute for some statutory county courts specify their terms.
34 Tex. Code Crim. Proc. Art. 22.13(a)(5).
35 Benson v. State, 476 S.W.3d 136 (Tex.App.—Austin 2015, pet ref’d).
36 Tex. Code Crim. Proc. Art. 22.13(b).
37 Alvarez v. State, 861 S.W.2d 878 (Tex.Crim.App. 1992).
38 Kubosh v. State, 241 S.W.3d 60 (Tex.Crim.App. 2007).
39 Tex. R. Evid. 101(e)(3)(C).
40 Tex. Code Crim. Proc. Art. 22.14.
41 Tex. Code Crim. Proc. Art. 17.08.
42 Moore v. State, 828 S.W.2d 497 (Tex. App.—Dallas 1992, no pet.).
43 Tex. Code Crim. Proc. Art. 22.13(b).
44 Many insurance companies require their bondsmen to retain a percentage of each bond premium in a fund to cover these expenses.
45 Tex. Occ. Code §1704.204(b).
46 Tex. Code Crim. Proc. Art. 17.02.
47 Tex. Att’y Gen. Op. C-740 (1966) also indicates that the sheriff may not be designated as the custodian to get around this situation.
48 Tex. Gov’t. Code §501.014.
49 Tex. Gov’t. Code §105.014(e)(6).