Texas Case Laws
Click on the below to read Texas Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
Texas Case Law 2012
In Spears v. State, Case No. 11-11-16-CR (Tex.App. – Eastland August 23, 2012) the defendant failed to appear and a judgment nisi was entered. The surety moved for remission of the forfeiture. The trial court denied the surety’s motion and entered final judgment. The surety argued on appeal that the forfeiture should have been remitted because he located the defendant in another state before expiration of 270 days but the Texas authorities had failed to enter the defendant in the NCIC database and that prevented the arrest and incarceration of the defendant in the other state. The Court interpreted the surety’s argument to be a form of estoppel. That is, that the Government’s failure to act should estop it from seeking forfeiture of the bond. The Court noted that estoppel “generally does not apply to governmental entities” and that none of the factors set out by the Court of Criminal Appeals for consideration in remitting forfeitures were presented in this case. The Court held that, on the record presented, a trial court could reasonably conclude that equity did not require any remission of the bond amount and affirmed the trial court’s judgment.
In Financial Casualty and Surety, Inc. v. Zouvelos, 2012 WL 2886861 (S.D.Tex. July 13, 2012) the surety sued a bail bond agent in connection with allegedly missing collateral. The agency agreement included a permissive forum selection clause allowing suit, at the surety’s discretion, in Harris County, Texas. The clause also would have allowed suit in the location of the agent’s business, which in this case was New York. The court granted the agent’s motion to transfer the case to the Eastern District of New York. The court found that the convenience of the parties and witnesses favored the transfer.
In Garcia v. Kubosh, Case No. 01-11-315 (Tex.App. – Houston June 18, 2012) two bondsmen and a criminal defendant sued to challenge imposition of a statutory $15 per bail bond fee. The trial court dismissed all of the claims except the bondsmen’s claim that the fee deprived them of property without due process of law. The defendants (a sheriff and the state attorney general sued in their official capacities) appealed. The plaintiffs did not cross-appeal, and the issue before the Court was only the due process claim. The Court held that the trial court lacked jurisdiction over the claim because “the $15 fee imposed by section 41.258 is rationally related to a legitimate state interest, and we hold that the bondsmen have not pleaded a substantive due process claim for which the State has waived sovereign immunity.”
In Ex Parte Robinson, 2012 WL 1255188 (Tex.App. – Corpus Christi April 12, 2012) the defendant was charged with capital murder and held without bond. The State did not indict him until the 114th day he was in custody, however, and he moved to be released on his own recognizance pursuant to Code of Crim. Proc. Art. 17.151, which stated that the defendant must be released “either on personal bond or by reducing the amount of bail required, if the state is not ready for trial” within 90 days of the start of the defendant’s detention. The defendant argued that he was indigent and so he had to be released on his own recognizance. The state argued, and the trial court held, that Art. 17.151 was an unconstitutional intrusion by the Legislature into a matter (bail) within the constitutional purview of the courts. The trial court then set bail at $750,000 and the defendant appealed. The Court of Appeals held that Art. 17.151 did not violate the Separation of Powers clause of the Texas Constitution and, therefore, was constitutional. However, the setting of bail was governed by Art. 17.15, and Art. 17.15 required the court to consider the safety of the victim and the community. The Court stated, “In this case, the trial court could reasonably infer that community-safety concerns existed, which then allowed him to exercise his discretion in fixing Robinson’s bail at $750,000.” The Court thus affirmed denial of the defendant’s petition for habeas corpus relief but reformed the trial court’s order to reflect that Art. 17.151 was constitutional.
In Burgess v. Denton County, Case No. 02-10-279-CV (Tex.App. – Fort Worth January 19, 2012) the plaintiffs sought a declaratory judgment barring the court clerk from assessing as a part of costs a $60 fee for mailing notice of the judgment nisi by certified mail. The trial court denied the plaintiffs’ request for a temporary injunction, and the plaintiffs appealed. The Court found that the record did not support the amount of the fee and directed that a temporary injunction be issued pursuant to which the contested fees would be paid into the registry of the trial court to be held pending a final decision. To the extent the fee were found to be legal, the money would be released to the clerk. The remainder would be returned to the plaintiffs.
Texas Case Law 2011
In Financial Casualty and Surety, Inc. v. Zouvelos, C.A.No. H-11-2509 (S.D.Tex. December 15, 2011) the surety sought to compel two defendants to comply with a permanent injunction that the defendants produce to the surety records of collateral received by the defendants on the surety’s bonds, bank account statements for accounts used by the defendants to hold collateral on the surety’s bonds, and vendor invoices on which defendants relied to disburse such collateral. The surety asked the court to hold the defendants in contempt for failing to comply with the injunction. The court stated, “The record shows clear and convincing evidence that Zouvelos and Mancini have failed to comply with the permanent injunction” and scheduled a hearing at which the defendants were directed to show cause why they should not be held in civil contempt and why default should not be entered against them.
In Bair v. State, Case No. 14-10-566 (Tex.App. – Houston December 6, 2011) the defendant tampered with an electronic monitoring device and the trial court revoked his bond. He failed to appear for trial, and a judgment nisi was signed. In due course a final judgment was entered and the surety appealed. The surety argued that the bond was not a valid and binding undertaking at the time of forfeiture because it had previously been revoked. The Court did not reach the merits of the surety’s argument because the record did not show the argument was ever presented to the trial court and, therefore, it was not preserved for appeal. The Court affirmed the trial court’s final judgment.
In re Tharp, Case No. 03-11-542-CV (Tex.App. – Austin October 5, 2011) was a mandamus action brought by the District Attorney after the trial court set a bail bond amount but permitted the defendant the alternative of depositing 10% of that amount in cash. The Court held that the trial court’s order violated Tex. Code of Criminal Art. 17.02, which permits a “bail bond” with sureties, or a cash deposit in the amount of the bond in lieu of having sureties. This contrasts with a “personal bond,” which has no security. The Court conditionally granted the writ and stated, “article 17.02 governs, and it afforded the court no discretion to permit the real party in interest to make bond with a cash deposit lower than the amount the court had set.”
In Brown v. State, Nos. 03-10-518,519,520,521,522and 523-CV (Tex.App. – Austin August 11, 2011) the surety sought to surrender the defendant and asked that a capias be issued. The court refused to sign the tendered order, however, because it would have released the surety. Instead, the court directed that the warrants be issued and that the surety would be released when the defendant was returned to jail. The defendant failed to appear, and the bonds were forfeited. The surety appealed the judgments against him arguing that he did not receive notice of the court’s order, therefore it was “void,” therefore he was released because he sought to surrender the defendant and the court refused to issue the capias. The surety also argued that the court’s orders were final and it no longer had jurisdiction to enter judgment against him or the judgments violated due process or res judicata. The Court rejected each argument and held that the bonds were contracts, they were breached, and judgment was properly entered against the surety.
In Financial Casualty & Surety, Inc. v. Mascola, C.A. No. H-11-120 (S.D.Tex. July 22, 2011) a surety sued its agents and subagents. The subagents moved to dismiss the case for lack of personal jurisdiction or, in the alternative, to transfer the case to the district of New Jersey. The defendants and the bonds were located in New Jersey, but the contracts provided for jurisdiction, at the surety’s discretion, in Harris County, Texas (where the surety was located) or the subagent’s home state. The court found that the choice of forum provision was not unreasonable or against public policy and would be enforced. The court denied the motion to dismiss but granted the alternative motion to transfer the case to the federal court in New Jersey. New Jersey was a permissible venue under the contract and the federal venue statute, and it was substantially more convenient for the parties and witnesses.
State v. Leal, Case No. 04-10-833-CV (Tex.App. – San Antonio April 13, 2011) dismissed the State’s attempt to file a direct appeal from dismissal of its bond forfeiture case against the principal and surety. The Court held that no statute authorized such a direct appeal and thus the Court lacked jurisdiction to hear it.
In Pruett v. Harris County Bail Bond Board, Case No. 01-09-384-CV (Tex.App. – Houston April 7, 2011) the Court considered the amount of attorneys fees awarded to plaintiffs who successfully challenged rules of the Bail Bond Board on constitutional grounds, see Pruett v. Harris County Bail Bond Board, 249 S.W.3d 447 (Tex. 2008). In the trial court, the plaintiffs claimed as much as $782,195.93 (based on an hourly rate of $510 for the plaintiff’s lead counsel) as reasonable fees even though that was substantially more than the plaintiffs actually paid their attorneys. The defendant’s expert thought $326,327.52 would have been reasonable. The trial court stated that the higher claim shocked the conscience of the court, and to discourage such outrageous claims the trial court awarded only $35,000. After the fee hearing in the lower court, the plaintiffs filed a motion to recuse the trial court judge, which the administrative judge denied. The plaintiffs appealed.
The Court acknowledged that a trial court could, in a proper case, award no fees so as to avoid condoning outrageous fee requests. The Court thought, however, that this was not an excuse to award a reduced fee or to depart from the “lodestar” standard of multiplying the hours reasonably expended in the case times a reasonable hourly rate with possible adjustments for various factors set out in case law. The Court thought that the trial court had to follow the lodestar formula to determine a reasonable fee. Since it failed to do so, the appeal was sustained and the case remanded to the trial court for further proceedings. The Court affirmed the administrative judge’s decision not to recuse the trial judge.
In Giri v. State, 2011 WL 1166668 (Tex.App. – Waco March 30, 2011) the defendant posted a cash bond. The bond form waived defenses pursuant to Articles 17.16(a)(2) and 22.13(a)(3) of the Tex. Code of Crim. Proc. The defendant, by counsel, argued that the waivers were unenforceable violations of his right to due process and that his failure to appear was due to uncontrollable circumstances because he was taken into custody and deported. The Court did not reach the constitutionality of the waiver provision because it found that the record evidence in the case did not establish a factual basis for the defendant’s arguments. The defendant’s counsel argued the defendant had been deported but nothing in the record showed that or showed the date of deportation of that it was over the defendant’s objections.
In Indiana Lumbermens Mutual Insurance Co. v. State, Case No. 01-10-173-CR (Tex.App. – Houston March 24, 2011) the surety filed an affidavit to surrender the defendant and request a capias. The trial court did not act on the request and held it until the defendant’s next scheduled court date. The defendant did not appear on that date, and the court issued a warrant and a judgment nisi. The surety appealed from the final judgment forfeiting the bond. The Court held that the surety’s affidavit was defective because it omitted the offense for which the defendant was charged, one of the six items required to be in the affidavit by Art. 17.19 of the Tex. Code of Crim. Proc. Therefore, the surety could not assert the affirmative defense provided by Art. 17.19 if a proper affidavit is filed and the trial court refuses to issue the capias. The surety also argued that the judgment should be reversed because the State did not offer into evidence, and the trial court did not take judicial notice of, the bail bond and judgment nisi. The Court noted that the fact that the surety posted the bond was never in dispute and the trial court recited that it considered the bond and Judgment of Forfeiture (presumably the judgment nisi), and that same recitation had been found to be sufficient in a prior Supreme Court case. The Court affirmed the judgment forfeiting the bond.
In Todd v. State, Case No. 14-10-31-CR (Tex.App. – Houston March 1, 2011) the defendant failed to appear and an order nisi was entered. The surety appealed from an eventual summary judgment, and the Court rejected each of his three arguments. First, he argued that the record did not show that the defendant’s name was distinctly called at the courthouse door as required by Tex. Code of Crim. Proc. Art. 22.02. The judgment nisi, however, stated that the name was called as required, and that shifted the burden to the surety to show that it did not happen. The record showed that the defendant was not present, and the surety could point to no evidence that the defendant’s name had not been properly called as stated in the judgment nisi. The surety’s second argument was exoneration because the defendant had been arrested, but the arrest was not within 270 days of the failure to appear as required by Tex. Code of Crim. Proc. Art. 22.13(a)5(B). Finally, the surety argued that the trial court delayed well past the ten day period following the forfeiture to issue a capias for the defendant. There was no dispute that the trial court was late in issuing the capias, but the Court held that was not a defense to the surety’s liability.
United States v. Safety National Casualty Corp., 2011 WL 1100268 (S.D.Tex. March 21, 2011) involves the Government’s claims on ten immigration bonds. It was originally filed in the Western District of Texas and transferred because a much larger case involving similar issues was pending in the Southern District (and now on appeal to the Fifth Circuit). On cross motions for summary judgment, the court: (1) by agreement of the parties, remanded two bonds to the Dept. of Homeland Security; (2) granted summary judgment to the surety and its agent on five bonds because the Government failed to give the notice of demand to produce the alien as required by the bond and the court’s decision in the larger case; (3) granted summary judgment to the surety and agent on two bonds because the Government could not produce return receipts or other evidence that the notice was sent to the surety; and (4) for the final bond granted the surety and agent’s request for access to the Alien File (A-File) rather than just the Record of Proceedings before the agency and denied the Government’s summary judgment motion without prejudice to re-filing after production of the A-File.
International Fidelity Insurance Co. v. State, Case No. 01-09-441 (Tex.App. – Houston February 17, 2011) the Court withdrew it opinion dated January 13, 2011, and reported at 2011 WL 147895 but in a new opinion reached the same result affirming the trial court’s judgment forfeiting the bond. The surety sought to surrender the defendant in December, 2001 and a hearing was held on January 10, 2002. It was disputed whether the defendant appeared. In 2002, the court did not enter a judgment nisi on the bond, but it did issue an alias capias for his arrest. The case then sat dormant for over five years. The court noticed a hearing for July 24, 2007, and entered a judgment nisi when the defendant failed to appear. After eventual entry of a judgment forfeiting the bond, the surety appealed on the grounds that the four year statute of limitations barred the State from proceeding against the bond and the bond could not be forfeited twice. If the defendant did not appear in 2002, then the action against the surety in 2007 was time barred. The trial court, however, found that the evidence did not support the surety’s defense, i.e. did not show that the defendant failed to appear at the 2002 hearing. The Court of Appeals affirmed on the ground that the trial court’s finding was not against the great weight of the evidence. The Court acknowledged that there could not be two forfeitures of the same bond, but refused to overturn the trial court’s implied finding that no forfeiture occurred in 2002.
In Jones v. State, Case No. 04-10-526-CV (Tex.App. – Austin February 9, 2011) the defendant failed to appear for arraignment and a judgment nisi was entered. The surety was served with notice of the hearing and filed an answer but did not appear at the hearing. The trial court took judicial notice of the court file, including a copy of the bond, and entered judgment against the surety. The surety appealed arguing that service of the notice was defective and the bond was not introduced into evidence. The Court rejected both arguments and affirmed the judgment. By filing an answer the surety waived any defects in service and the bond was before the trial court as part of the court’s file.
In International Fidelity Insurance Co. v. State, 2011 WL 147895 (Tex.App. – Houston January 13, 2011) a hearing in the defendant’s criminal case was held on January 10, 2002. It was disputed whether he appeared. In 2002, the court did not enter a judgment nisi on the bond, but it did issue an alias capias for his arrest. The case then sat dormant for over five years. The court noticed a hearing for July 24, 2007, and entered a judgment nisi when the defendant failed to appear. After eventual entry of a judgment forfeiting the bond, the surety appealed on the grounds that the four year statute of limitations barred the State from proceeding against the bond and the bond could not be forfeited twice. If the defendant did not appear in 2002, then the action against the surety in 2007 was time barred. The trial court, however, found that the evidence did not support the surety’s defense, i.e. did not show that the defendant failed to appear at the 2002 hearing. The Court of Appeals affirmed on the ground that the trial court’s finding was not against the great weight of the evidence. The Court acknowledged that there could not be two forfeitures of the same bond, but found on the record before it that no forfeiture occurred in 2002.
In Wainscott v. Dallas County, Case No. 10-10427 (5th Cir. January 13, 2011) an attorney who practiced criminal law sued the Dallas County Bail Board, Dallas County and a Board member over suspension of the attorney’s license to write bail bonds. The Board had suspended the attorney before for advertising as a bail company or agent, but after the advertisement “expired” the Board reinstated him. He again violated the advertising rules and was again suspended, but after the second advertisements expired or were withdrawn, the Board did not reinstate the attorney. He sued, and the District Court dismissed the case for insufficient service of process, improper parties and res judicata. The Court of Appeals held that the process was served properly and that res judicata did not bar the claim because litigation over the first suspension was concluded before the second suspension took place. The Court reversed dismissal on those grounds but affirmed dismissal of Dallas County and the individual Board member as not proper parties because only the Board had the power to suspend or reinstate the attorney. The District Court had not reached several other arguments made by the defendants, and the Court of Appeals emphasized that it did not reach them either and they should be considered on their merits after remand to the District Court.
Texas Case Law 2010
In Safety National Casualty Co. v. United States Department of Homeland Security, 2010 WL 5419043 (S.D.Tex. December 23, 2010) the surety sought an injunction to prevent the Department of Homeland Security (DHS) from suing the surety on immigration bonds in other federal district courts. The case in the Southern District of Texas had a long history involving over a thousand bonds, and the court was familiar with various issues and defenses raised by the surety in response to claims on such bonds. Nevertheless, DHS filed several cases in other districts “on a small handful of disputed bonds and seeks recovery of relatively small sums of money.” One of the other districts transferred its case to the Southern District of Texas, but one did not. DHS did not explain any legitimate reason to file such suits in numerous districts, but the court nevertheless denied the surety’s motion for an injunction. The court considered the “first-to-file” rule, compulsory counterclaims under Rule 13(a), FRCP, and vexatious litigation. The court held that the overlap between the potential cases in other jurisdictions and the case pending before it were not sufficiently substantial to justify an injunction under the first-to-file rule. Each bond was a separate contract with its own facts, and the hypothetical new cases could present additional defenses not at issue in the pending case. The court thought that the subsequent cases were not compulsory counterclaims because their claims matured after the original counterclaim in the pending case. Finally, the court found that the Government did not fit the profile of a vexatious litigant forum shopping for a different result on the same contract.
In Allegheny/Freebird Bonds v. State, 2010 WL 4753465 (Tex.App. – Dallas November 24, 2010) the judgment nisi and notice did not accurately state the name of the agent and surety on the bond. The trial court entered judgment against an entity that did not sign the bond. After the appeal was filed, the parties reached a settlement. Pursuant to the settlement, the judgment was reversed and the case remanded for entry of judgment in a reduced amount against the agent and surety that were named on the bond.
In Castaneda v. State, Case No. 04-10-00377-CV (Tex.App. – San Antonio November 24, 2010) the defendant failed to appear and the court issued a judgment nisi. The State delayed for over two years, however, in serving the bondsman with notice of the hearing. The bondsman argued that his due process rights were violated by the State’s lack of due diligence in serving him with the notice. The Court held that the bondsman was allowed to present any evidence he had at the delayed hearing and the notice was served well within the four year limitation period for forfeiture of the bond. There was no due process violation. The Court also rejected the bondsman’s argument that the State had to introduce the bond into evidence. The trial court could take judicial notice of documents in the court file, and they included the bond and judgment nisi. The Court noted that the two years to seek remission of forfeiture if the defendant was recovered ran from entry of the final judgment, therefore the delay in entering judgment did not prejudice the bondsman.
In International Fidelity Insurance Co. v. State of Texas, 2010 WL 4366910 (Tex.App. – Austin November 3, 2010) the State filed suit on a bail bond forfeiture within the four year limitation period but did not serve the surety within the limitation period. Apparently because of mistakes by the clerk’s office, the service was attempted at a former agent’s address, but the court’s computerized record showed service. When the State’s attorney realized the mistake, service was promptly made on the surety’s actual appointed agent. Under Texas law the date of service relates back to the date suit was filed only if the plaintiff exercised due diligence. The Court concluded that the State’s reliance on the computerized record explained the delay and affirmed the trial court’s finding that the State did exercise due diligence.
Victor J. BURGESS, d/b/a Eydie’s Bail Bonds, and the Local Agent for Seneca Insurance Co., Inc., Appellant v. The STATE of Texas, Court of Appeals of Texas, Fort Worth, May 13, 2010, 313 S.W.3d 844 Click on the following link for the full case, Texas Case Law.
In Castaneda v. State, 2009 WL 1546906 (Tex.App. – Corpus Christi June 4, 2009) the defendant was arrested for misdemeanor driving while intoxicated and released on bond. The indictment charged felony driving while intoxicated (the defendant had a prior DWI conviction). The defendant failed to appear and the court forfeited the bond. The surety appealed on the ground that the more serious charge increased the surety’s risk and discharged the bond. The Court held that there was only one criminal action and the surety’s risk was not changed. The Court pointed out that the surety could have known before writing the bond that driving while intoxicated could be either a felony or a misdemeanor. The Court also rejected the surety’s argument that the bond violated Penal Code §17.08(3), which provides that the bond state the defendant is charged with a felony or a misdemeanor. Since driving while intoxicated can be either, there was no violation of the statute.
In Villasana v. City of Houston, 2010 WL 2991095 (S.D.Tex. July 26, 2010) an attorney who acted as bail bond surety for his clients in the City’s Municipal Court filed a purported civil rights action against the City and several of its employees objecting to the City’s attempts to compel payment on forfeited bonds that he alleged he had been told would not have to be paid. The suit sought to enjoin the City from refusing to accept the attorney’s bonds, to exonerate all bonds written during a certain time period, and to have any subsequent bonds processed “in accordance with due process.” The defendants moved to dismiss the suit for lack of subject matter jurisdiction and failure to state a claim. The court recited some confusion as to procedures on such bonds but found no basis for a claim that the City’s actions were substantively or procedurally unfair and no basis to relieve the attorney from his obligations. The court granted the defendants’ motion to dismiss.
In Burgess v. State, 2010 WL 1946782 (Tex.App. – Ft. Worth May 13, 2010) the surety argued that $68 of court costs for the clerk’s service of the citation by registered mail should not have been included in the judgment of forfeiture. The Court thought this was an impermissible collateral attack on the court’s setting of its fee schedule. Since there was no allegation that setting the fees was a void act, it could only be challenged in a separate proceeding.
In Ranger Insurance Co. v. State, 2010 WL 1782250 (Tex.App. – Dallas May 5, 2010) the surety was charged various items as court costs in addition to the bond amount. The surety appealed, and the court of appeals charged a $175 appeal filing fee. The Court recognized that under Safety National Casualty Corp. v. State, 2010 WL 715246 (Tex.Crim.App. March 3, 2010), the appellate filing fee was an error and ordered it refunded. It upheld the trial court civil filing fee and a $35 “Sheriff’s fee” as controlled by Dees v. State, 865 S.W.2d 461 (Tex.Crim.App. 1993) and not overruled by Safety National.
In Shaw v. State, 2010 WL 1136936 (Tex.App. – Fort Worth March 25, 2010) the “defendant-surety” filed his notice of appeal after expiration of the appeal period, and the Court dismissed the appeal.
In Safety National Casualty Corp. v. State, 2010 WL 715246 (Tex.Crim.App. March 3, 2010) the Court reversed the Court of Appeals decision published at 273 S.W.3d 730 (Tex.App. – Houston 2008) and held that an appeal in a bail bond forfeiture case was not subject to the civil appeal filing fees. The Court looked at the predecessors of Tex. Code of Crim. Proc. Art. 44.44 and held that although the statute applied the civil action rules to bail bond forfeiture proceedings, the Legislature did not intend to apply the civil fee schedule in such cases. Seven Justices joined in this result and two dissented.
State v. Guiles, 2010 WL 851421 (Tex.App. – Ft. Worth March 11, 2010) affirmed summary judgment against an individual surety. The State submitted a certified copy of the bond and the judgment nisi. The surety submitted his own affidavit that “to his knowledge, the Baliff did not call” the defendant’s name at the Courthouse door on the day the defendant failed to appear. The affidavit, however, did not include facts to show that the surety was present or had personal knowledge of the events. The affidavit did not raise an issue of fact, and the State’s evidence established that it was entitled to judgment.
Texas Case Law 2009
In Castaneda v. State, 2009 WL 1546906 (Tex.App. – Corpus Christi June 4, 2009) the defendant was arrested for misdemeanor driving while intoxicated and released on bond. The indictment charged felony driving while intoxicated (the defendant had a prior DWI conviction). The defendant failed to appear and the court forfeited the bond. The surety appealed on the ground that the more serious charge increased the surety’s risk and discharged the bond. The Court held that there was only one criminal action and the surety’s risk was not changed. The Court pointed out that the surety could have known before writing the bond that driving while intoxicated could be either a felony or a misdemeanor. The Court also rejected the surety’s argument that the bond violated Penal Code §17.08(3), which provides that the bond state the defendant is charged with a felony or a misdemeanor. Since driving while intoxicated can be either, there was no violation of the statute.
In Rodriguez v. State, 2009 WL 613555 (Tex.App. – San Antonio March 11, 2009) the defendant’s attorney was surety on his $100,000 bond. The initial charge was for possession of cocaine, but the indictment was for possession with intent to distribute. The amounts of drugs were the same, however, and the charges arose out of the same facts. The surety sought a bench warrant to surrender the defendant. The court took the request under advisement but signed the warrant a week after it was requested. The prosecution elected not to seek forfeiture of a co-defendant’s bond posted by a surety agent, but did successfully seek forfeiture of the attorney’s bond. The attorney appealed. The Court thought that the charge of possession with intent to distribute, which did not increase the maximum possible penalty, arose from the original charge and was not a variance between the charge, the indictment and the judgment nisi. The bond remained applicable under Tex. Code Crim. Proc. Art. 17.09. Even without the statute, however, the Court found that the variance in the charge did not prejudice the surety. The trial court’s one week delay in issuing the warrant was not a refusal to issue it, which would have discharged the surety under Tex. Code of Crim. Proc. Art. 17.19. The prosecutor did not choose to seek forfeiture of the co-defendant’s bond because the surety had been misled as to the nature of the charge and the amount of drugs found. When the surety’s agent learned of the facts, she communicated with the court and sought to surrender the defendant. The attorney, on the other hand, knew all of these facts when he undertook to write the bond. There was no unequal treatment of the attorney-surety versus the insurer. The Court affirmed the trial court’s forfeiture judgment.
In Garcia v. State, 2009 WL 855988 (Tex.App. – San Antonio April 1, 2009) the surety was the defendant’s attorney. After the bond was posted, the defendant was indicted on the same charges, but with an enhanced penalty as a repeat offender, and the original case was dismissed. The defendant pled guilty in return for the State dropping the repeat offender paragraph and recommending a lower sentence. The defendant failed to appear for sentencing, and the court forfeited the bond. The Court of Appeals held that the indictment was effectively the same charge growing out of the same underlying facts and not a variance that discharged the bond. All that changed was the case number and the repeat offender allegation. The surety was not prejudiced by addition of the repeat offender allegation because by the time the defendant failed to appear it had been dropped as part of the plea agreement. Pursuant to Tex. Code Crim. Proc. art. 17.09 the bond remained in force for later proceedings on the same charge, and the Court found the indictment was the same charge. The Court also held that under the facts of this case, the trial court could take judicial notice of the bond.
In Safety National Casualty Corp. v. State, 2009 WL 1875564 (Tex.App. – Houston June 30, 2009) the surety executed three bonds for the defendant. The defendant was eventually indicted on the three charges. After indictment, the court revoked the bonds because the defendant violated his electronic monitoring obligations. The defendant failed to appear, and the bonds were forfeited. The surety argued that once the bonds were revoked they no longer could be forfeited. The Court held only the return of the defendant to custody or disposition of the charges ended the surety’s obligation, and here he was not rearrested on a new warrant. The bonds were properly forfeited. The Court also rejected the surety’s argument that the indictment on the first charge was not timely. Although the indictment on the first charge was after the end of the first term following the defendant’s release on bail, the prosecution was continued by court order. In Harris County grand jury proceedings are continued by a blanket order rather than an order listing cases or defendants by name, and the Court upheld the effectiveness of the blanket order. Finally, the Court rejected the surety’s argument that the bonds were discharged by an erroneous entry in the trial court records indicating that the defendant received deferred adjudication. The error was explained on the record, and the evidence supported the trial court’s finding that the defendant was not placed on deferred adjudication.
In Monroe v. Dallas County, 2009 WL 2569449 (Tex.App. – Dallas August 21, 2009) a group of bail agents sued Dallas County over the procedures the County used to forfeit bail bonds and collect the proceeds. The plaintiffs alleged that the County did not comply with applicable statutes and violated the plaintiffs’ due process rights. The County characterized the claims as ones for unconstitutional takings of the plaintiff’s property and moved for summary judgment. The trail court granted summary judgment, and the plaintiffs appealed. The plaintiffs did not challenge the trial court’s holding as to an unconstitutional taking and the Court of Appeals affirmed it, but the Court reversed as to the plaintiffs’ due process claims, which the County had not addressed in its motion. The Court declined to address other issues on which the trial court had not ruled and remanded the case.
In Martin v. State, 2009 WL 2971104 (Tex.App. – Amarillo September 17, 2009) the trial court entered a default judgment against the surety and the surety appealed arguing that it had not been properly served. The state did not oppose the relief sought by the surety, and the Court reversed the default judgment and remanded the case.
In Rodriguez v. State, 2009 WL 3616613 (Tex.Crim.App. November 4, 2009) the Court granted discretionary review of the Court of Appeals opinion reported at 283 S.W.3d 465 (Tex.App. – San Antonio 2009) to consider whether the surety was discharged when the State added more serious charges to the one for which the surety issued the bond. Instead of deciding the issue, the Court concluded that its grant of discretionary review was improvident and dismissed the petition.
In Allegheny Casualty Agent v. Walker, 2009 WL 4757362 (Tex.App. – Ft. Worth December 10, 2009) the County Sheriff posted a list of all licensed bail agents for the County (as required by statute) and next to it a list of criminal defense attorneys active in the County. Under Texas law, a criminal defense attorney can act as the bail bond surety for his or her client. A law enforcement officer, however, cannot recommend any bail bond surety. The plaintiff agent argued that the list of criminal defense attorneys violated the law by recommending particular sureties, i.e., the lawyers on the list. The Court held that the list of attorneys did not “recommend a particular bail bond surety to another person” in violation of the statute and affirmed summary judgment for the Sheriff.
In re Waddleton, 2009 WL 4829915 (Tex.App. – Tyler December 16, 2009) denied the defendant’s petition for a writ of mandamus ordering the trial judge to return his bail deposit. The defendant posted two surety bail bonds and paid premiums of $2,950. After conclusion of his case, he demanded return of the $2,950 arguing that it was a cash bail deposit. The Court noted the difference between a deposit of the entire amount of bail and the payment of a premium to the surety for a surety bail bond and found that the trial court correctly denied the relief sought by the defendant.In Spears v. State, 2009 WL 5155573 (Tex.App. – Waco December 30, 2009) before the defendant had failed to appear, the surety submitted an affidavit requesting an arrest warrant pursuant to Tex. Code Crim. Proc. Art. 17.19(a). The court denied the request, the defendant subsequently did not appear, and the court entered summary judgment forfeiting the bond. The surety appealed arguing that his affidavit complied with the requirements of Art. 17.19(a) and the trial court had no discretion to refuse the warrant. The surety had an affirmative defense pursuant to Art. 17.19(b), and summary judgment should not have been entered. The Court of Appeals reversed the summary judgment and remanded the case.
Texas Case Law 2008
In McKenna v. State, 247 S.W.3d 716 (Tex.Crim.App. 2008) the defendant failed to appear for trial and the bond was forfeited. The surety eventually located the defendant and procured her re-arrest. The surety moved for remission of the forfeiture and presented evidence of its recovery efforts. The State did not present evidence of any harm or expense it incurred. The trail court denied relief, the Court of Appeals granted 60% remission and the Court of Criminal Appeals reversed and reinstated the trial court’s holding of no remission. The case turned largely on who had the burden to establish the factors that the court should consider and the fact that equitable remission was within the discretion of the trial court. The Court held that the surety, as the party seeking to change the status quo, had the duty to present evidence to support its claim for equitable relief. Since no evidence was presented either way of costs or prejudice suffered by the State or harm to the public or the court could not assume these factors favored the surety. The trial court acted within its discretion in refusing to grant remission of any part of the forfeiture. The Court stated, “On this record, a reasonable trial court could have concluded that equity did not require any remittitur of the bond amount.”
In Pruett v. The Harris County Bail Bond Board, 249 S.W.3d 447 (Tex. 2008) the Texas Supreme Court considered a bail agent’s challenges to enforcement of two rules of the Harris County Bail Bond Board. The rules restricted solicitation of persons for whom warrants were issued and family members of incarcerated defendants. The rules were predecessors to the almost identical statutes challenged by the same agent in Pruett v. The Harris County Bail Bond Board, 499 F.3d 403 (5th Cir. 2007), and the Texas Supreme Court reached the same result in the rules case that the United States Fifth Circuit Court of Appeals reached in the statute case. The Court held that the ban on telephone solicitation between 9:00 p.m. and 9:00 a.m. and before Noon on Sunday was constitutional. The ban on soliciting individuals with open warrants and soliciting within the first 24 hours after arrest were unconstitutional restrictions on the agent’s freedom of speech. The Court also held that the Bail Bond Board acted within its authority in establishing the two rules.
In Safety National Casualty Corp. (Agent Michael W. Cox) v. State, 2008 WL 1747756 (Tex.App. – Houston April 17, 2008) the defendant failed to appear but was incarcerated in another county within a month. He was eventually returned to the county where the charges were pending. Pursuant to Tex. Code Crim. Proc. Art. 22.13, the surety was exonerated but owed court costs, the county’s costs to secure return of the principal “and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal’s incarceration.” The sole issue in the appeal was whether the date of incarceration for computation of interest under Art. 22.13 was the date the principal was incarcerated in the other county or the date he was returned to custody in the county where the charges were pending. The trial court held that it was the latter date when he was returned to the county where the charges were pending. The Court of Appeals reversed and held that “the date of the principal’s incarceration” meant what it said, the date he was incarcerated even if that was in another jurisdiction.
Safety National Casualty Corp. v. State, 273 S.W.3d 157 (Tex.Crim.App. 2008) reversed the Court of Appeals decision reported at 225 S.W.3d 684 (Tex. App. – El Paso 2006) and held that Articles 22.13(a)(5) and 22.16(a) of the Texas Code of Criminal Procedure are constitutional. The defendant failed to appear, but the bail agent called him and he appeared the next morning. Since he provided no excuse for his failure to appear (he just forgot), the trial court forfeited the bond and had the defendant taken into custody. He was released on a new bond prior to entry of final judgment against the surety. The trial court remitted only 50% of the bond, and the surety appealed. The Court of Appeals affirmed, and the surety appealed to the Court of Criminal Appeals. Under Arts. 22.13 and 22.16, the surety was entitled to remission of the bond because the defendant was incarcerated the day after his failure to appear and because he was later released on the new bond. The issue was whether the statutes were an unconstitutional violation of the separation of powers required by the Texas Constitution. The Court held that they were not, and were constitutional, because “Articles 22.13 and 22.16 do not interfere with the trial court’s ability to enter final judgment, nor do they dictate the time frame within which a trial court may enter a final judgment.”
In Castaneda v. State, 2008 WL 2744582 (Tex.App. – Corpus Christi June 30, 2008) the defendants in three cases failed to appear and the trial court entered a judgment nisi and, eventually, a final judgment, against the principal and bail agent. The actual surety on the bonds, however, was not named in the judgments and was not served. The bail agent filed a petition for a bill of review and appealed the final judgments. The Court of Appeals agreed that under Arts. 22.03 and 22.05 of the Tex. Code of Crim. Proc. the surety must be given notice and served with a citation. The principal and all sureties must be named in the judgment nisi. In this case the State did not name or serve the surety, and therefore erred in entering the final judgments solely against the principals and the bail agent. The Court reversed the judgments. In two of the cases the Court directed that judgment be entered in favor of the agent because the four year limitations period had run and would prevent the State from re-instituting the cases naming the surety. In the third case, the defendant had been recovered and pled guilty, so it was dismissed as moot.
In Grimes County Bail Bond Board v. Ellen, 267 S.W.3d 310 (Tex.App. – Houston 2008) the Bail Bond Board suspended and later revoked a bondsman’s surety license because the bondsman had not disclosed unsatisfied judgments in his application. He appealed to the trial court, and at the time the de novo appeal was heard he still had unsatisfied judgments. The trial court nevertheless reinstated his license. The Bail Bond Board appealed, and the Court held that under Tex. Occ. Code §1704.252 the trial court had discretion either to suspend or revoke the license, but it had to do one or the other. It could not reinstate the license of a bondsman with unsatisfied or unsuperceded judgments. The Court stated, “the Act – when read as a whole – evinces a consistent legislative intent to prevent bondsmen with unpaid judgments from continuing to issue bail bonds.” The Court reversed the trial court order reinstating the license and remanded the case.
Safety National Casualty Corp. (Agent Michael W. Cox) v. State, 2008 WL 4899120 (Tex.App. – Houston November 7, 2008) modified the Court’s prior opinion reported at 2008 WL 1747756 (Tex.App. – Houston April 17, 2008) to re-designate the appeals involved as criminal matters rather than civil matters (i.e. to change the docket numbers from “CV” to “CR”) because appeals from bail bond forfeitures are criminal cases even though governed by the Civil Rules. The Court also modified its prior opinion to assess costs against the surety pursuant to Code of Crim. Proc. Art. 22.13(b) rather than against the State as the losing party under Rule of Appellate Procedure 43.4, which would apply in a civil case. Finally, the Court held that the civil appellate filing fee should be collected in appeals from bail bond forfeitures because the civil rules of procedure govern bail forfeiture proceedings after entry of the judgment nisi.
Texas Case Law 2007
Linder v. Bell County Bail Bond Board, 2007 WL 437163 (Tex.App. – Austin February 8, 2007) affirmed denial of an injunction to prevent the county bail bond board from refusing to renew the plaintiff’s license. Her application had a number of discrepancies and errors, and the trial court did not abuse its discretion in denying the injunction.
In Westmoreland v. State, 2007 WL 677889 (Tex.App. – Tyler March 7, 2007) the surety and bail agent appealed from a default final judgment forfeiting the bond. The Court held that the bail agent was not a party to the suit and could not file a restricted appeal but reversed the judgment on the surety’s appeal because the record did not establish compliance with Tex. Code of Crim. Procedure Art. 22.04, which required the citation (apparently the Texas version of a summons) to have attached to it a copy of the judgment of forfeiture, bond and power of attorney. The citation also must notify the parties cited to appear and show cause why the judgment should not be made final. The citation served by mail on the surety did not comply with Art. 22.04. The Court held that compliance was mandatory and vacated the default judgment.
McKenna v. State, 2007 WL 776095 (Tex.App. – Waco March 14, 2007) held that the trial judge was not disqualified because he was a member of the county bail bond board that had suspended the bondsman’s license, and that the trial court was within its discretion in refusing to remit any of the forfeiture. The Court of Appeals reviewed the factors to be considered in deciding a special bill of review under Tex. Code Crim. Proc. Art. 22.17, and found no abuse of discretion. Unlike in McKenna v. State, 209 S.W.3d 233 (Tex.App. – Waco 2006), here the defendant was apprehended in another county and returned by law enforcement officials, and there was no evidence the bondsman helped locate him.
Pruett v. The Harris County Bail Bond Board, 499 F.3d 403 (5th Cir. 2007) superceding on reconsideration 489 F.3d 217 (5th Cir. 2007), affirmed most of the U.S. District Court opinion, reported at 400 F.Supp.2d 967 (S.D.Tex. 2005), holding Subsection (b) of Tex. Occupations Code §1704.109 unconstitutional. Subsection (b) forbids “a bail bond surety, an agent of a corporate surety, or an employee of the surety or agent” from taking certain acts to solicit bail bond business. The prohibited acts are soliciting business from an individual for whom a warrant had been issued but not yet served, unless the surety or agent had a prior bail bond on the individual, and soliciting business in person or by telephone between 9:00 p.m. and 9:00 a.m. or within 24 hours following the individual’s arrest.
The Court held that prohibiting solicitation prior to execution of a warrant or within 24 hours after arrest violated the First Amendment of the Constitution. The County’s argument as to the former was undercut by the fact that it posted outstanding warrants on the Internet 48 hours after they were issued even if they were not yet served, and that it mailed letters to persons with warrants for minor crimes informing them of the warrant and asking them to surrender. These facts undercut the County’s arguments about not tipping off subjects of the warrants or safety of law enforcement officers or prevention of witness intimidation or destruction of evidence. As to the first 24 hours following arrest, the County’s argument was based on prevention of harassment and privacy, but the Court thought it would just postpone solicitation for a day and that most families would want to know if a member was in jail.
The Court upheld the portion of the statute barring solicitation between 9 p.m. and 9:00 a.m. as a narrowly drawn measure to prevent harassment and protect privacy that withstood the constitutional challenge.
Esparza v. Safety National Casualty Corp., 247 S.W.3d 288 (Tex.App. – El Paso August 9, 2007) is one of several decisions in a case challenging the ability of the District Attorney to delegate enforcement of bail forfeitures to the County Attorney. One aspect of the case was the surety’s claim for damages because of the County’s alleged misuse or mishandling of the bonds. Under the Texas Tort Claims Act, a suit against public employees will be dismissed if the State files a motion to compel amendment of the pleadings to name the State in place of the employees and the claimant fails to make such an amendment within 30 days. Since the State filed its motion, which the surety opposed, and the pleading was not amended within the 30 day period, the Court of Appeals reversed the trial court and entered judgment dismissing the claim with prejudice.
Esparza v. Safety National Casualty Corp., 2007 WL 2274615 (Tex.App. – El Paso August 9, 2007) is the latest of several decisions in a case challenging the ability of the District Attorney to delegate enforcement of bail forfeitures to the County Attorney. One aspect of the case was the surety’s claim for damages because of the County’s alleged misuse or mishandling of the bonds. Under the Texas Tort Claims Act, a suit against public employees will be dismissed if the State files a motion to compel amendment of the pleadings to name the State in place of the employees and the claimant fails to make such an amendment within 30 days. Since the State filed its motion, which the surety opposed, and the pleading was not amended within the 30 day period, the Court of Appeals reversed the trial court and entered judgment dismissing the claim with prejudice.
Henderson v. State, 236 S.W. 3d 814 (Tex.App. – Waco 2007) upheld the constitutionality of a requirement that a bond for release pending an appeal must be a surety bond not a personal bond. The defendant objected to the distinction between those charged with a felony and those who had been convicted of a felony but were appealing. The Court noted that this distinction did not violate any constitutional requirement.
Texas Case Law 2006
In Ex parte Speicher, 2006 WL 302325 (Tex.App.– Fort Worth February 9, 2006) the defendant violated several conditions of his release and was rearrested. The trial court refused to set bail. The Court of Appeals held that there was a constitutional right to bail and that the trial court could set a higher amount in light of the defendant’s violations but could not deny bail entirely. [Not published].
Gilmore v. State, 2006 WL 302334 (Tex.App.—Fort Worth February 9, 2006) held that an Affidavit for Release of Surety pursuant to Tex. Code of Criminal Procedure Art. 17.19 must strictly comply with the statute and contain each required element. The Affidavit submitted by the surety did not state the offense with which the defendant was charged, and so the surety could not use the court’s refusal to issue a warrant for the defendant as a defense to the State’s forfeiture action after the defendant failed to appear at a subsequent hearing. The Court held that substantial compliance with Art. 17.19 was insufficient.
In Kubosh v. State, 2006 WL 560186 (Tex.App. – Houston March 9, 2006) the State asked the trial court to take judicial notice of the bond and the judgment nisi in the court file and rested its case. The surety agreed the court could take judicial notice of its own file but objected to admission of the bond into evidence. The trial court entered judgment in favor of the State and the surety appealed on the ground that the evidence was not sufficient to support the judgment. The Court of Appeals held that the trial court could take judicial notice of the documents, that the surety’s evidentiary objections were not raised on appeal, and that the bond and judgment nisi were sufficient evidence to meet the State’s burden of proof. The Court of Appeals affirmed the judgment.
In Alkek v. State, 2006 WL 1704210 (Tex.App. – Corpus Christi June 22, 2006) the surety applied for remission of four forfeitures. The trial court heard evidence and granted partial remission of between 40 and 50%. The surety appealed. The Court reviewed the factors to be considered and concluded in each case that the trial court did not abuse its discretion in determining the amount to remit.
In re State of Texas ex rel. Jose R. Rodriguez, 2006 WL 1868280 (Tex.App. – El Paso July 6, 2006) is a successor to the case of the same name reported at 166 S.W.3d 894 (Tex. App. – El Paso 2005). In the earlier case the state prevailed in a mandamus action to force the trial court to permit the County Attorney to represent the state in the bond forfeiture proceeding. This time the state sought mandamus to force the trial court to reverse its denial of the state’s motion to strike an intervention by the bail agent and to force the trial court to rule on certain motions including the state’s motion for summary judgment. The Court of Appeals denied this second request for mandamus. The Court noted that since it was filed the trial court severed the intervention proceeding from the bond forfeiture, so the bail agent’s claims would not delay resolution of the forfeiture action. The trial court’s delay in ruling on the motions, in part by taking a vacation, had not yet risen to the level where mandamus would be appropriate. The Court invited the state to re-file the mandamus request if the trial court did not rule “within a reasonable time upon returning from vacation.”
In Kinnard v. Collin County Bail Bond Board, 2006 WL 1985920 (Tex.App. – Dallas July 18, 2006) the substantive issue was whether a bail bond agent’s office in the county as required by Tex. Occ. Code §1704.213(a) could be at the agent’s residence in an area not zoned for office use. The Board defined “office in the county” in its Local Rule 3.12, and contended that the agent’s office in his home did not qualify. The trial court eventually entered a declaratory judgment for the Board and the agent appealed. The Court of Appeals held that there was no justiciable controversy because after his license was suspended, but before the trial court issued its declaratory judgment, the agent obtained an office that met the Board’s requirements, and Local Rule 3.12 was enacted after the license suspension and so played no part in it. Therefore, the trial court should not have considered the Board’s request for a declaratory judgment. The Court rendered judgment denying the Board’s request for a declaratory judgment without considering the merits of the issue.
Kubosh v. State, 2006 WL 2506498 (Tex.App. – Houston August 31, 2006) affirmed judgment against a surety on two bonds. The defendant failed to appear and the proper procedure was followed to enter judgment. There was some confusion because there was a co-surety whom the government could not find to serve, and the prosecutor misspoke and said the government requested a default judgment against the first surety who was served and did appear. On appeal, the surety argued that the record did not support the judgment, but the Court held that the bond and order nisi were in the court file and the trial could take judicial notice of them without a formal request. The surety also argued that a default judgment had been entered against him even though he appeared, but the Court held that the prosecutor just misspoke and what was entered was based on the record not on a default.
McKenna v. State, 209 S.W.3d 233 (Tex.App. – Waco 2006), in a 2-1 decision, held that the trial court abused its discretion in failing to remit part of the forfeiture and then directed that $15,000 of the $25,000 forfeiture be remitted. The Court reviewed seven factors to be considered, found that there was no evidence of harm to the public or prejudice or expense to the government and that the surety located the defendant, and held the trial court’s denial of any relief to be an abuse of discretion. The Court then went on to weigh the factors itself and order return of all but $10,000. The dissenting Justice argued that it was not the State’s burden to prove prejudice or harm to the public, it was the surety’s burden to prove their lack, and the fact that there was no evidence should not have aided the surety’s cause. The dissent characterized the majority as engaging in a de novo decision of the case rather than appellate review of the trial court’s discretion. The dissenting Justice would have affirmed the trial court. [Published].
Safety National Casualty Corp. v. State, 225 S.W.3d 684 (Tex. App. – El Paso 2006) affirmed a trial court judgment remitting only 50% of the bond. The defendant failed to appear, but the bail agent called him and he appeared the next morning. Since he provided no excuse for his failure to appear (he just forgot), the trial court forfeited the bond and had the defendant taken into custody. In the trial court the surety argued that it was exonerated pursuant to Article 22.13(a)(5) of the Code of Criminal Procedure (since the defendant was incarcerated), but the trial court held that statute an unconstitutional infringement on the separate powers of the judiciary. On appeal the surety did not adequately raise or brief that issue, and the Court refused to consider it.
The surety also argued that it was entitled to full remittitur pursuant to Article 22.16(a) because the defendant was later released on a new bond. The Court held that mandatory remittitur under Article 22.16(a) was a violation of the separation of powers provision of the Texas Constitution because it removed the judge’s discretion over remission of the bond.
As a matter of judicial discretion, the defendant’s failure to provide an excuse for his non-appearance justified partial forfeiture of the bond, and the trial court did not abuse its discretion in ordering remission of only 50% of the bond amount.
In Drake v. Spriggs, 2006 WL 3628028 (Tex.App. – Corpus Christi December 14, 2006) the heirs of the defendant sued to recover all or part of the premium paid for the bond. The defendant was arrested in Texas on charges in Colorado. His bond was set at $1 million, and two bondsmen posted it by means of two $500,000 bonds. The condition of the bonds was that the defendant would appear in Colorado, and one of the bondsmen escorted him there. The Colorado judge, however, would not accept the Texas bonds and required that he post another bond from a surety licensed in Colorado. After the charges were resolved and the defendant died, his heirs sued to recover the $100,000 premium paid for the Texas bonds. The trial court granted a “no evidence” summary judgment on the plaintiffs’ Deceptive Trade Practices Act claim, and the jury ruled for the bondsmen on the rest of the claims. The plaintiffs appealed.
The Court of Appeals found that several of the issues on appeal were waived because the appellants’ brief did not include sufficient argument or authority. The Court affirmed various evidentiary rulings of the trial court and held that there was no basis to overturn refusal to recuse the trial judge. On the DTPA count, however, the Court held that the summary judgment was in error because there was more than a mere scintilla of evidence to support a misrepresentation of the effectiveness of the bonds to obtain the defendant’s release in Colorado. The case was remanded for further proceedings as to the DTPA count. The verdict for the bondsmen was otherwise affirmed.
Texas Case Law 2005
Kubosh v. State, 177 S.W.3d 156 (Tex. App. 2005) rejected the surety’s argument that the bond should have been exonerated because the defendant was in Mexico and the Mexican government did not issue a “provisional warrant” for his arrest because of inadequate policies of the Harris County District Attorneys Office. The Court held that the four grounds stated in Tex. Code of Criminal Procedure §22.13(a) were the only grounds to exonerate the bond, and the surety’s argument did not fit under any of them.
Harris County Bail Bond Board v. Pruett, 177 S.W.3d 260 (Tex. App. 2005) denied motions for rehearing of the Court’s opinion at Harris County Bail Bond Board v. Pruett, 2004 WL 2307362 (Tex. App. October 14, 2004) but filed a replacement opinion reaching the same ultimate conclusion. The case involved the enforceability of Harris County Bail Bond Board Rules 24 and 25, and the Court rejected all the challenges to both rules except a First Amendment challenge to the part of Rule 25 forbidding solicitation within 24 hours of arrest by anyone who does not have a prior or existing relationship with the defendant.
Allegheny Casualty Co. v. State, 2005 WL 780302 (Tex. App. – El Paso April 7, 2005) is another case involving a defendant turned over to the Immigration and Naturalization Service (INS). He was arrested trying to enter the United States with 42 pounds of marijuana and charged in state court. Bond was set at $1,500 and the defendant was released to INS, which removed him back to Mexico. Needless to say, he did not take advantage of the fact that he could have applied to return to the U.S. for his court appearance. The bond was forfeited. The surety argued that deportation of the defendant prior to the time he was to appear is an automatic exoneration of the bond or, at least, an “uncontrollable circumstance” preventing the defendant’s appearance and discharging the surety under Texas law. The court rejected both arguments. The court noted the practically penalty-free attempt to import 42 pounds of marijuana and stated, “Now appellant would like this Court to excuse it from this minimal obligation under the bond entirely, allowing it to make a tidy profit on a scheme which is obvious to all but the most naive.” A logical question is why bond was set at only $1,500 if everyone involved knew it was in effect a fine and the only penalty the defendant was likely to face.
Harrell v. Bowles, 2005 WL 975378 (N.D. Tex. April 25, 2005) rejected a constitutional challenge filed by sureties who deposited cash bonds. The sureties argued that the Sheriff’s refusal to return the deposits, charging of unauthorized fees, retention of interest earned, and refusal to turn over abandoned funds were unconstitutional takings. The court held that the sureties had not availed themselves of the clear state law procedure to seek return of the deposits and other relief and, therefore, they could not assert a claim for an unconstitutional taking. The plaintiffs’ claims were dismissed without prejudice. It appears from the decision that no corporate surety bail bonds were involved. Rather the sureties were individuals who acted as sureties by depositing funds with the Sheriff.
In Vance v. McRae, 2005 WL 1105076 (W.D. Tex. April 29, 2005) a bail bondsman sued the Bexar County Bail Bond Board and one of its members for various civil rights violations. The defendants’ motions for summary judgment were granted in part and denied in part. The Board suspended the plaintiff’s license, but on appeal the state court lifted the suspension and returned the plaintiff to full licensed status. The plaintiff filed this federal suit seeking damages. The Court held that the Board was subject to suit and did not have judicial immunity but that the individual member of the Board was immune from suit on certain statutory claims. The Court rejected the Board’s argument that the claims were barred by a “deliberative and decisional process privilege.”
In Ranger Insurance Co. v. State, 2005 WL 1384319 (Tex. App. – Hous. June 2, 2005) the surety argued that Article 102 of the Honduran Constitution forbidding extradition of a Honduran citizen was an “uncontrollable circumstance” within the meaning of Art. 22.13(a)(3) of the Texas Penal Code because it prevented the surety from returning the defendant. The court held that the surety had not established a factual basis in the record for its argument and affirmed the judgment of forfeiture. The court did not address the substance of the surety’s contention.
In re State of Texas ex rel. Jose R. Rodriguez, 166 S.W.3d 894 (Tex. App. – El Paso 2005) held that the County Attorney could represent the state in the bond forfeiture proceeding and that the surety did not have standing to complain that the County Attorney’s simultaneous service on the County Bail Bond Board and representation of the state in bond forfeiture proceedings was a conflict of interest. The appeal was by a request for a writ of mandamus to the trial court, which had disqualified the County Attorney, and the Court of Appeals directed the trial court to vacate its opinion with the writ of mandamus to issue if it failed to do so.
Trevino v. State, 2005 WL 1643184 (Tex. App. – Corpus Christi July 14, 2005) affirmed judgments forfeiting two bonds in spite of the fact that the bonds described the charge against the defendant as “Theft by Possession” and the judgment nisi stated that the indictment charged the defendant with engaging in organized criminal activity. The trial court took judicial notice of the criminal case files and found that the acts of theft by possession were the basis for the criminal conspiracy and that all the charges were from the same criminal episode. The Court held that the variance was reconciled and not fatal to forfeiture of the bonds.
Alkek v. State of Texas, 2005 WL 1907778 (Tex. App. – Corpus Christi August 11, 2005) denied the surety’s appeal for lack of jurisdiction. After the judgment of forfeiture was entered, the surety filed a timely petition for a Special Bill of Review that was denied. The surety did not appeal, but after 30 days had run filed another petition for a Special Bill of Review. Eventually, the surety appealed from denial of the second petition. The Court held that when the appeal period ran after denial of the first, timely petition, the trial court did not have jurisdiction to reconsider the judgment and therefore the Court of Appeals did not have jurisdiction over the appeal.
Williams v. State of Texas, 2005 WL 1907685 (Tex. App. – Corpus Christi August 11, 2005) and Williams v. State of Texas, 2005 WL 1907686 (Tex. App. – Corpus Christi August 11, 2005) both rejected three arguments made by the surety and affirmed judgments forfeiting the bonds. In both cases, the Court held that the bond principal was properly noticed by mailing to the address on the bond and that a certified copy of the bail bond was properly admitted into evidence under the public records exception to the hearsay rule. The Court also held that the post-forfeiture appearance and guilty plea of the defendant (Westlaw No. 1907686) and post-forfeiture dismissal of the criminal case (Westlaw No. 1907685) were not grounds to discharge the surety under Tex. Code of Crim. Proc. Art. 22.13.
Pruett v. The Harris County Bail Bond Board, 400 F.Supp.2d 967 (S.D.Tex. 2005) held that Tex. Occupations Code §1704.109 was unconstitutional and enjoined its enforcement. The Code section forbad “a bail bond surety, an agent of a corporate surety, or an employee of the surety or agent” from taking certain acts to solicit bail bond business. The prohibited acts were soliciting business from an individual for whom a warrant had been issued but not served unless the surety or agent had a prior bail bond on the individual and soliciting business in person or by telephone between 9:00 p.m. and 9:00 a.m. or within 24 hours following the individual’s arrest. The Court held that the statute violated the First Amendment of the Constitution. It agreed that the prohibited acts were commercial speech but was not convinced that the restrictions directly and materially advanced the state’s interest in preventing harassment and protecting law enforcement officers or that the restrictions were narrowly drawn.
In Harris County Bail Bond Board v. Pruett, 2004 WL 2307362 (Tex. App. October 14, 2004) the Texas Court of Appeals considered a Bail Bond Board Rule very similar to §1704.109 and held that it also violated the First Amendment.
Smith v. Johnson County Bail Bond Board, 2005 WL 3436798 (Tex. App. December 14, 2005) affirmed denial of an application for a license to act as the agent of a licensed bail bondsperson. The Board’s Local Rule 10.1 required such an applicant to meet all the requirements of the Texas Bail Bond Act, and one of those requirements was that the applicant not be a convicted felon. The applicant had a felony conviction, and so was properly rejected. The Court upheld Local Rule 10.1 as within the Board’s authority and not a violation of the equal protection clause of the U.S. Constitution.
Olivarez v. State, 183 S.W.3d 59 (Tex. App. – Waco 2005) dismissed the bondsman’s appeal because she failed to file a docketing statement. Much of the opinion, however, discusses the payment of fees applicable to civil appeals in bond forfeiture cases. The Court stated that such fees are owed but, since they were not customarily collected, they would be waived in this and all other pending appeals. A dissent agrees that the fees are owed, but would not waive them. The dissent would have given the appellant notice that the appeal would be dismissed if she did not pay the fees and file the docketing statement.
Texas Case Law 2004
In Maya v. State, 2004 WL 57405 (Tex. App. January 14, 2004) the surety filed an “affidavit to go off bond” pursuant to Texas Code of Criminal Procedure Art. 17.19 but did not bring it to the magistrate’s attention. Before it was acted upon, the defendant failed to appear and the bond was forfeited. The court held that the mere filing of the affidavit did not give the surety an affirmative defense to the bond forfeiture. Under the statute, the surety has a defense if the magistrate or court refuses to issue a warrant as requested by the surety. The failure to act on the surety’s filing of the affidavit was not such a refusal.
In Soileau v. State of Texas, 2004 WL 78176 (Tex. App. January 20, 2004) the court rejected a number of technical objections to the state’s summary judgment. The surety argued that the exhibits to the summary judgment motion were not properly authenticated, but the court pointed out that the originals were part of the record on appeal. The surety argued that the record did not establish that the principal was served, but the court had ordered the citation of the judgment nisi to be served, and there was no evidence offered to overcome the presumption the court’s order was carried out. The surety argued that the principal was not properly served with the summary judgment motion, therefore the judgment against the principal was void, and there could be no judgment against the surety without a judgment against the principal. The court held that bail forfeiture is a criminal law matter, the civil law of guarantees is inapplicable, and there could be a judgment against the surety even if the principal had been dismissed.
In re Ernesto C. Casteneda, 2004 WL 572355 (Tex. App. March 24, 2004) denied a petition to review the trial court’s refusal to accept Mr. Casteneda as a surety because he had not paid forfeiture judgments in other cases. Tex. Code of Crim. Proc. Art. 17.11, §2 disqualifies a surety in default on a bail bond.
Baeza v. State of Texas, 2004 WL 803895 (Tex. App. April 15, 2004) affirmed judgment on a bond. One element of a bond forfeiture in Texas is that the name of the defendant was called distinctly at the courthouse door. The trial court took judicial notice that this was done, and on appeal the surety objected to such judicial notice. The objection was not made in the trial court, however, and thus not preserved for review on appeal.
Burns v. State of Texas, 2004 WL 1007621 (Tex. App. May 5, 2004) and three companion cases (2004 WL 1007697, 1007772, and 1007827) all upheld the application of a formula to determine the amount of a forfeited bond to be remitted if the defendant is surrendered. The Court also held that Lyles v. State, 850 S.W.2d 497 (Tex. Crim. App. 1993) definitely decided that subsection (a) of a former statute directing remission of the entire bond amount less certain costs was unconstitutional, and refused to reconsider that holding.
Taylor v. State of Texas, 2004 WL 1171731 (Tex. App. May 27, 2004) reversed a judgment against a bail agent who had signed the bond only on behalf of the surety. The state conceded that the agent should not have been personally liable.
Ex parte Durst, 2004 WL 1193225 (Tex. App. June 1, 2004) held that bail of $1 billion on each of three charges was unconstitutionally excessive. The defendant was a proven flight risk and wealthy, but the trial judge had imposed conditions to address the flight risk including that the defendant pay the cost of 24 hour surveillance by a licensed peace officer selected by the court. The three charges were third degree felonies: bail jumping, failure to appear and destruction of evidence. The majority opinion did not say what amount of bail it considered to be constitutionally permitted under the facts of the case, but a concurring opinion argued the court should save time by specifying between $150,000 and $200,000.
In Cardona v. State, 2004 WL 1347275 (Tex. App. June 16, 2004) the defendant was convicted and sentenced by the trial court, but his conviction was overturned by the Court of Appeals. The State intends to seek discretionary review of the Court of Appeals decision in the Court of Criminal Appeals. The defendant requested bail pending the State’s appeal, and the Court reviewed the criteria to be applied in determining the amount of bail. [Not published.]
Castenada v. State 138 S.W.3d 304 (Tex. Crim. App. June 30, 2004) grants reconsideration of Castaneda v. State, 2003 WL 21509098 (Tex. Crim. App. July 2, 2003) and reverses the result. In its initial decision the Court held that the surety was automatically discharged under Art. 17.16 of the Texas Code of Criminal Procedure because it delivered to the Sheriff an affidavit stating that the defendant accused drug dealers were in INS custody and the Sheriff verified that fact. On reconsideration, the Court held that it would not consider the Art. 17.16 defense because it was not raised in the trial court. The Court then went on to reject the surety’s other contentions either because they also were not raised in the trial court or because they were not supported by the record.
In four State v. Williams cases, 2004 WL 1632561, 1632648, 1632650 and 1632917 (Tex. App. July 22, 2004) the court rejected the surety’s argument that a certified copy of the bail bond should not have been admitted into evidence and that the bond principal had to be served with the citation. On the latter point, the court did not address the merits of the question because the surety did not raise the issue before the trial court, and in two of the cases the principal was served anyway. [Not published].
In Cowboy Bail Bonds v. State, 2004 WL 1879643 (Tex. App. August 24, 2004) the court held that the surety had not complied with Article 17.19 of the Code of Criminal Procedure. Article 17.19 allows a surety to file an affidavit of its intention to surrender the defendant. If the court refuses to issue a bench warrant for the defendant and the defendant fails to appear for a subsequent court date, the bond is discharged. The bail agent filed an “affidavit to go off bond” but did nothing to bring the affidavit to the court’s attention or secure a ruling on it. The Court never took it up, and the defendant subsequently failed to appear. The Court of Appeals held that just filing the affidavit is insufficient to cause the court’s inaction to constitute a “refusal” to issue the warrant. [Not published].
In Harris County Bail Bond Board v. Pruett, 2004 WL 2307362 (Tex. App. October 14, 2004) the court considered challenges to two Rules promulgated by the Harris Count Bail Bond Board. Rule 24 forbids bail bondsmen or anyone working for them from soliciting bail bond business from persons with outstanding warrants (that is, from contacting the criminal before he or she is arrested). Rule 25 forbids the solicitation of bail bond business within 24 hours of arrest or during other than normal business hours. Both rules have an exception for a bail agent with an existing bond for the defendant, and Rule 25 also excepts a bail agent with a prior relationship with the defendant. The Court rejected all the challenges to both rules except a First Amendment challenge to Rule 25. The court reasoned that the purported purpose of Rule 25, to prevent harassment of citizens, was substantially undercut by the exception and the real effect of the Rule was to prevent competition by bail bondsmen who did not have a prior or current relationship with the defendant.
In Alkek v. State, 2004 WL 2472262 (Tex. App. November 4, 2004) notice of the judgment nisi was not mailed to the bond principal at the address stated on the bond, and the judgment was against only the surety. There was no dispute that this was not in accordance with statutory requirements. In a 2-1 decision, however, the Court held that the judgment appealed from was not final and, therefore, the appeal should be dismissed. The dissent argued that the judgments were final and reversible.
Gonzalez Bail Bonds v. State, 147 S.W.3d 557 (Tex. App. 2004) vacated summary judgment forfeiting the bond. The defendant was not indicted at the next term of court after he was admitted to bail. That would exonerate the bond unless he was bound over before indictment and the prosecution was continued by order of the court. The record in the case did not show that the prosecution was continued by court order. The court held that was sufficient to raise a genuine issue of fact precluding summary judgment. The dissent would have affirmed the summary judgment on the theory that there was no reason to believe that an order granting such a continuation would appear in the record of the case and, therefore, there was no inference to be drawn from its absence. The court also stated that ratification and estoppel are principles of civil substantive law not applicable in bail forfeiture proceedings.
Kubosh v. State, 2004 WL 2966391 (Tex. App. December 23, 2004) affirmed judgments forfeiting two bonds. After being released, the defendant was arrested on another charge, and while he was in custody, the bail bondsman surrendered the bonds with an affidavit to the court, and a warrant was issued for the defendant’s arrest. Article 17.16 of the Texas Code of Crim. Proc. provides that the surety can secure discharge of the bonds if it delivers to the Sheriff of the county in which the prosecution is pending an affidavit that the defendant is in custody and the Sheriff verifies the incarceration. Instead of following the statutory procedure, however, the bondsman telephoned the jail, told a deputy that the arrest warrants had been issued, and asked that a “hold” be placed on the defendant. The Court held that the bondsman was not entitled to relief since he had not complied with the statute. It also rejected his argument that public policy required the sheriff to verify the defendant’s incarceration upon receipt of the telephone call. The Court stated that it had to follow law and precedent not public policy.
Texas Case Law 2003
McDonald v. State, 105 S.W.3d 749 (Tex. App. 2003) held that a bond forfeiture is a criminal proceeding and the state cannot ask for a new trial or file an appeal.Quintero v. State of Texas, 2003 WL 21101395 (Tex. App. May 15, 2003) rejected arguments that there was insufficient evidence the principal signed the bond, that incorrect admonishment on appointment of counsel voids the bond, and that thecourt should have let one year elapse after failure to appear before forfeiting bond.
Olivarez v. State, 2003 WL 21476320 (Tex. App. June 26, 2003) is unusual because the bondswoman appeared pro se and won. She was helped by the fact that the state did not file a brief in the appeal and, in fact, neglected to place the bond in evidence in the trial court.
David’s Bail Bond v. State, 2003 WL 21509112 (Tex. App. June 30, 2003) affirmed the trial court’s denial of a bill to review forfeiture of the bond because the appellant did not provide a court reporter’s transcript of the hearing in the trial court. The decision to grant or deny relief was within the discretion of the trial court, and without a transcript the Court of Appeals could not find an abuse of discretion.
In Castaneda v. State, 2003 WL 21509098 (Tex. Crim. App. July 2, 2003) the bail bondsman knew that each of the five commercial drug dealer defendants was an illegal alien and would be turned over to INS when released on bail. None of the five appeared for trial, and they had apparently been deported. In the trial court and first level court of appeals, the bondsman unsuccessfully argued that the fact of deportation was an “uncontrollable circumstance” justifying exoneration of the bonds under Tex. Code of Crim. Procedure Art. 22.13(3). The lower courts rejected the argument and affirmed judgment of forfeiture. The Court of Criminal Appeals, in a 6 to 3 decision, considered an argument no one had made in the lower courts and held that under Tex. Code of Crim. Procedure Art. 17.16 the surety was automatically discharged if it delivered an affidavit that the defendant was in custody elsewhere and the sheriff verified that fact. This seems to be a great deal for the bondsman of an illegal alien subject to detention and deportation by INS. The bondsman can collect the premium, the defendant is “released” to INS, the bondsman immediately submits the affidavit, the sheriff verifies that the defendant is held by INS, and the bond is automatically discharged. As the three dissenting judges point out, it is possibly an even greater deal for the drug dealers (in these cases transporters of hundreds of pounds of marijuana) who have no trouble getting a risk-free bail bond, are sent back to Mexico and never face prosecution. Indeed, they presumable go back to work smuggling drugs into the U.S. secure in the knowledge that if they are caught they will be able to post bail and be sent home never to face trial. One of the few things one can definitely count on is that neither the courts nor the legislature are interested in helping drug dealers. The Texas Supreme Court or the Legislature may look for a way to change this result.
Webb v. State of Texas, 2003 WL 21666630 (Tex. App. July 17, 2003) is not strictly speaking a bail bond case, but it is nevertheless interesting because it holds that the crime of soliciting bonding business in a jail, police station or other place of detainment can be committed over the telephone. That is, the bail agent or bail surety need not physically be present in the detention facility when the solicitation occurs or at any other time.
Texas law requires that the defendant on a bail bond (as well as the surety) be given notice that the state is seeking a judgment of forfeiture and that the judgment be against both the defendant and the surety. In Guy Williams, d/b/a Freedom Bail Bonds v. State of Texas, 2003 WL 21961517 (Tex. App. August 19, 2003) the trial court entered judgment against both, but the state did not establish in the record that it had sent notice to the defendant. Given how simple it would be to show mailing of notice, there may be some implication from the state’s silence that it did not give the notice. On the other hand, Mr. Williams just submitted an affidavit that to the best of his information and belief no notice was given to the defendant. On this ambiguous record the court of appeals held that summary judgment should not have been granted, vacated the judgment and remanded the case to the trial court. Ironically, entry of judgment against the surety, who admittedly received notice, is at least postponed because the state did not establish it gave someone else notice.
Guy Williams d/b/a Freedom Bail Bonds v. State of Texas, 2003 WL 21998531 (Tex. App. August 25, 2003) and Guy Williams d/b/a Freedom Bail Bonds v. State of Texas, 2003 WL 21998567 (Tex. App. August 25, 2003) are virtually identical to the August 19 opinion as are six more cases with the same title dated August 27, 2003: 2003 WL 22017272, 2003 WL 22017294, 2003 WL 22017309, 2003 WL 22017331, 2003 WL 22017491, and 2003 WL 22017497.
Villanueva v. Gonzalez, 2003 WL 22238913 (Tex. App. October 1, 2003) does not involve a bail bond forfeiture but is nevertheless interesting. Mr. Villanueva deeded property to Mr. Gonzalez which Mr. Gonzalez used as security for bail bonds he wrote. Mr Gonzalez was supposed to pay Mr. Villanueva half the profits but failed to pay. The court held that the agreement was a violation of section 1704.252(9) of the Texas Occupations Code which authorizes a county bail bond board to revoke the license of anyone who pays a commission or fee to, or divides commissions or fees with, a person or business entity not licensed under Chapter 1704 (which regulates bail bond sureties). Since the agreement was illegal, the court refused to enforce it and left the parties where they stood. Mr. Gonzalez apparently gets to keep the property and not pay Mr. Villanueva the promised half of the profits.
International Fidelity Ins. Co. v. State of Texas, 2003 WL 22976423 (Tex. App. December 17, 2003) considered whether appeal of a bail bond forfeiture is a civil or criminal matter and which procedural rules apply. The court held that the appeal was a criminal matter but that pursuant to Tex. Code Crim. Proc. Art. 44.44 the civil rules governed. The court then granted the surety’s motion to dismiss its appeal.