Bail Bond Agent Blog

State v. Clayton, 825 A.2d 1155 (N.J. Super, A.D. 2003) and State v. Dillard, 824 A.2d 1100 (N.J. Super, A.D. 2003) both hold that in a series of cases the vast majority of the forfeited bond amount should be remitted because of the surety’s successful efforts to recover the defendant and the lack of any expense or prejudice to the state. In one of the cases decided in the Clayton opinion, the surety was entitled to complete exoneration because it apprehended the defendant and objected to forfeiture within the 45 day period (since extended to 75 days) provided by N.J. Rule 3:26-6(b). The trial court reinstated the bond and again released the defendant who again failed to appear and was again recovered by the surety. The appeal court held that reinstating the bond without the surety’s consent discharged the surety from any obligation for further defaults and the surety had fully performed after the first default as required by the rule. In the other 8 cases decided in the two opinions, some part of the bond was forfeited but most was remitted in light of the surety’s monitoring and recovery efforts.

State v. Harmon, 825 A.2d 515 (N.J. Super.A.D. 2003) is another decision of the New Jersey intermediate appellate court granting some degree of relief from forfeiture on 14 out of 16 bonds under consideration. The court decided that if the defendant remained at large, no relief was warranted. On the rest of the cases, some relief was granted depending on the facts of each case.

State v. Simpson, 839 A.2d 896 (N.J. Super. A.D. 2003) is an opinion in 17 consolidated appeals raising constitutional challenges to the New Jersey procedure barring sureties and agents who fail to satisfy an uncontested judgment of forfeiture from writing more bonds until the forfeiture is paid. The 17 cases all involve two sureties who have the same Program Administrator, Capital Bonding. The Court found that the constitutional issues were frivolous and resoundingly upheld the right of the New Jersey Supreme Court to establish rules barring defaulting sureties. The Court was also highly critical of the surety companies for which Capital Bonding is the managing agent for a policy of appealing virtually every forfeiture. In cases in which the defendant was not recovered, the grounds of appeal have been the constitutional issues now rejected by the Court, supported by identical “verbatim” briefs. The Court states, “Hundreds of such appeals have been filed in the last several years, but because the appellant saw fit to withdraw or settle them as they were calendared, these constitutional issues were not adjudicated, and the stream of ‘verbatim’ appeals therefore continues.” This is unusually strong language from a court describing what it clearly thinks is an abusive practice.

In re Preclusion of Brice, 841 A.2d 927 (N.J. Super. A.D. 2004) is another case indirectly involving Capital Bonding Corporation. The court held that the contracts, court rules and statutes involved permitted the court to de-list (refuse to accept further bonds from) the bail agent, as well as the surety company, if forfeitures were not paid. Although Capital Bonding was not a party, the court noted that the agent’s contract was with Capital Bonding not with either of the surety companies.

State v. Wickliff, 875 A.2d 1009 (N.J. Super. 2005) vacated the conviction of a recovery agent for criminal trespass because the trial court’s instructions to the jury did not allow the jury to find that the defendant was not guilty because he reasonably believed he had a right to enter the house of the fugitive’s mother to look for the fugitive. The New Jersey criminal trespass statute requires that the defendant must enter a structure “knowing that he is not licensed or privileged to do so.”

In State v. Ramirez, 875 A.2d 1025 (N.J. Super. 2005) the court consolidated three appeals by Sirius America Insurance Company, reviewed the factors to be considered when the surety requests remission of all or part of a bail forfeiture, and held that there was no basis in any of the cases to overturn the trial court’s exercise of its discretion in determining the amount to remit (in two cases) or not to grant any remission (in the third case).

Dobrek v. Phelan, 2005 WL 1963036 (3rd Cir. August 17, 2005) held that §523(a)(7) of the Bankruptcy Code exempted from discharge the debts of a bail agent on forfeited bonds. In New Jersey, a bail agent who signs the bond is liable for the forfeiture, and a bail agent with unpaid forfeitures is removed from the Bail Registry and thus cannot write additional bonds. Mr. Dobrek had unpaid forfeitures and was removed from the Bail Registry. He sued and argued that his obligations on the bonds were discharged in his Chapter 7 bankruptcy proceeding. The Court held that the debts were “a fine, penalty or forfeiture payable to a governmental unit” and so not discharged pursuant to §523(a)(7).

In State v. AA Bail Bonds, 2005 WL 3500808 (N.J. Super. A.D. December 23, 2005) the surety recovered the defendant for non-appearance in another case and tried to surrender him and revoke the $50,000 bond in the instant case. The trial court refused to revoke the bond, and the defendant failed to appear. The trial court remitted half of the forfeiture. The Court of Appeals reviewed the factors to be considered in granting remission and thought that the facts of the case called for remission of more than 50%. It vacated the trial court order and remanded the case for reconsideration in light of the factors discussed.

State v. Harris, 2005 WL 3527008 (N.J. Super. A.D. December 27, 2005) affirmed an order remitting only 75% of the bond amount. The Court reviewed the various factors for determination of the amount to be remitted, including that the defendant was apprehended by the Sheriff’s office not the surety, and the applicable guidelines and held that remission of only 75% was within the trial court’s discretion and the interests of justice.

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Restvedt v. Carlson, 2004 WL 1336752 (9th Cir. June 11, 2004) involved a “time-pay” bail bond program allowed by the administrative judge of the Bozeman, Montana Municipal Court. Apparently the judge, Ms. Carlson, lets defendants pay cash bail on an installment plan. A bail agent challenged this as depriving him of a constitutional right to practice his profession. The Court held that even assuming there is such a constitutional right, it would not mean that there could not be a competing arrangement. That is, there is no constitutional right not to have competitors. [Not published.]

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State of Missouri v. Angela M. Cook, 104 S.W.3d 808, 2003 WL 21153484 (Mo. App. May 20, 2003) held that the bail agent had apparent authority to appear for the surety at a forfeiture hearing.

In American Western Bonding Company, Inc. v. United Surety Agents, Inc., 2004 WL 627996 (Mo. App. March 31, 2004) a bail agent sued a managing general agent to recover a buildup fund. The trial court held that (1) the MGA properly paid a bond forfeiture from the fund, (2) the agent was not entitled to damages for alleged mismanagement of the fund, (3) the agent was not entitled to punitive damages, and (4) the agent was entitled to the money held in the fund. Since neither party knew the exact amount, no judgment was entered for a sum certain. The parties could not agree on the amount (the MGA claimed it could subtract litigation costs) and the trial court entered an “amended” judgment for the amount in the fund without reduction for the litigation costs. The MGA appealed claiming that the trial court did not have jurisdiction to “amend” the judgment. The Court of Appeals disagreed and held that the first judgment was not final and could be modified, and affirmed the modified judgment.

In State v. Carroll, 2005 WL 1563084 (Mo. App. July 6, 2005) the defendant failed to appear but the bail agent located him in jail in Georgia and had the Sheriff enter the warrant in the N.C.I.C. system. In due course, the Georgia authorities informed the Sheriff that the defendant could be picked up, but the Sheriff did not tell the bail agent. Instead, the Sheriff sent two deputies to bring the defendant back to Missouri at a cost of $2,988.59. The Court refused to forfeit the bond, but ordered the surety to pay the $2,988.59. The surety appealed and the Court of Appeals reduced the amount to the $584.40 that the bail agent testified it would have cost him to go to Georgia and bring the defendant back. The applicable Missouri statute, §374.200.2, provides that the bail agent shall have the “first opportunity” to return the defendant incarcerated in another state and if unable to do so shall pay the cost for the State to return him.

Lass v. Wright, 2006 WL 1330984 (Mo.App. May 17, 2006) affirmed judgment on a promissory note. The defendant was convicted of second degree murder, and the court set bond at $1 million. The fee for the bond was $90,000, and the defendant’s father paid $2,000 and signed a note for the balance. Several months later, the court of appeals ruled that someone convicted of second degree murder was not eligible for release on bond, revoked the bond and incarcerated the defendant. The bondsman sued for the balance owed on the note, and the father counterclaimed for what he had paid on account. The father argued that the bond was illegal and so the note was not collectible. The Court noted that the bondsman was properly licensed and the defendant was released for several months. The Court refused to cancel the note and affirmed judgment for the bondsman.

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State of Minnesota v. Rosillo, 2004 WL 1192085 (Minn. App. June 1, 2004) reviewed the criteria for reinstating and discharging a forfeited bond but held that the trial court did not abuse its discretion in reinstating only $4,000 of one bond (the $4,000 was the cost the surety incurred in unsuccessful attempts to recover the defendant). This seems to be a harsh result given that the defendant was in prison in Mexico, but the court emphasized the surety and agent did very little to monitor him or keep informed about his non-appearance. The court also held that the court administrator’s failure to mail notice of non-appearance and forfeiture (the bond was reinstated when the defendant appeared two days later) was outweighed by the surety’s failure to monitor the defendant, and the trial court was justified in not discharging the other bond based on the administrator’s failure to mail the notice.

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In re Forfeiture of Bail Bonds, 705 N.W.2d 350 (Mich. 2005) remanded the case to the Court of Appeals to reconsider its decision to remit only a small part of the bond. MCL §765.28.1 was amended in 2003 to require that the court give the surety notice not later than 7 days after the defendant failed to appear. The notice was given six months after the failure to appear. The Supreme Court clearly suggested that the partial remission was not compliance with the statute.

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In State v. Cabral, 2005 WL 10313 (Mass. January 4, 2005) the state charged a bail bondsman and his alleged agents with assault and various other crimes in connection with the apprehension and surrender of the bond principal. The Court held that the common law privilege of the surety and its agents to apprehend and surrender the principal is still the law in Massachusetts. The Court discussed the burden of proof and standards to determine the extent of this lawful authority.

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Pantazes v. State of Maryland, 2003 WL 22453793 (Md. App. October 30, 2003) held that the court’s delay in forfeiting the bond was not grounds to grant the bail bondsman any relief. The defendant failed to appear for sentencing and the court “revoked” his bail status but did not enter an order forfeiting the bond. Some months later, the administrative judge corrected the error and entered an order forfeiting the bond and giving the surety 90 days to produce the defendant (by statute the 90 days is supposed to run from the date the defendant failed to appear, but the judge’s action foreclosed an argument that the belated forfeiture deprived the surety of its 90 days to recover the defendant.) The bail bondsman presented no evidence of his actions to monitor or recover the defendant. The court rejected arguments that prejudice resulted from the “cold” trail to find the defendant or that the “revoked” bond could no longer be forfeited.

The court then went on to lecture the bail bondsman that he was not a central party to the case which was really between the state and the defendant and that the bond was just a form of security posted by the defendant and that the business risk assumed by the bondsman was that the defendant would not appear in court. The defendant did not appear, and the court showed little sympathy for the bail bondsman’s attempts to escape the financial consequences.

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In State v. Futch, 2004 WL 626204 (La. App. March 31 2004) the surety moved to set aside a bond forfeiture because the record did not show that the defendant was given notice of the date he was to appear. The Court affirmed denial of the motion because Art. 344 of the La. Code of Criminal Procedure requires notice after the initial appearance only to the surety, agent or bondsman not to the defendant. Since notice was given to the surety, the forfeiture was correct.

In State v. Ainsworth, 2004 WL 1459356 (La. App. June 29, 2004) the surety had two grounds to set aside forfeiture of the defendant’s bond. The surety argued that the state did not give the defendant the required notice of the appearance date and that the defendant was incarcerated in another jurisdiction on the appearance date. The Court held that under Louisiana statutes some defenses must be raised within 60 days and some within six months. The alleged lack of notice is a 60-day defense, and it was first raised by motion filed more than 60 days after the notice of forfeiture was mailed. In addition to being untimely, the defense failed on its merits because the state tried to serve notice of the appearance date on the defendant at the false address he gave.

The incarceration is a six-month defense, but the surety did not raise it in its motion or in any amended motion. It was first raised the morning of the hearing which was more than six months after the date the notice of forfeiture was mailed. The statute also requires an affidavit from a public official that the defendant was incarcerated, and the surety provided only an unsworn letter. The Court, therefore, affirmed the trial court’s denial of the surety’s motion to set aside the forfeiture.

Reading between the lines of this case, it appears that the way things have routinely been done has not complied with the applicable statutes and the Court of Appeals is giving notice that it will require strict compliance in the future. [Published].

In State v. Harris, 2004 WL 2072040 (La. App. September 17, 2004) the defendant failed to appear and the bail agent asked the Sheriff to enter the resulting bench warrant in the National Crime Information Center Registry and tendered the $25 fee. The Sheriff refused to enter the warrant, and when the bail agent’s representatives later seized the defendant in another state the local police refused to hold him because there was no confirmation of the warrant in the Registry. The court held that the bond was exonerated pursuant to Art. 345G of the La. Code of Crim. Proc. The court said that it relied on the fact that the $25 was accepted and did not express an opinion on whether the Sheriff could have refused the fee and not entered the warrant. A concurring opinion, however, argues that the Sheriff was obligated to accept the fee and enter the warrant and to refuse would border on malfeasance. Under the terms of the cited statute, it appears that mere refusal to enter the warrant should discharge the surety, and the fact that the defendant was later located, and released because of the Sheriff’s failure, was not essential to the holding.

State v. Timberlake, 2004 WL 2290500 (La. App. October 12, 2004) refused to consider the merits of the surety’s motion to set aside forfeiture of its bond because the motion was filed after the expiration of six months from the date notice of the judgment of bond forfeiture was mailed. The motion was, therefore, untimely, pursuant to La. R.S. §15:85. The Court also noted several other avenues of relief that the surety failed to pursue.

State v. Campbell, 889 So.2d 1030 (La. App. 2004) refused to consider the merits of the surety’s appeal from the forfeiture of two bonds. The surety argued that the defendant was not served with notice of the court date upon which she failed to appear and that she was incarcerated in another Parish within six months of the mailing of the notice of bond forfeiture. The surety’s original motion to set aside the forfeiture was based on only the lack of proper notice defense. The Court refused to consider it because it was not filed within 60 days of the mailing of the notice of bond forfeiture as required by La. R.S. §15:85(5). That statute allows six months to assert a defense based on incarceration of the defendant, but the surety did not raise that defense until the hearing on its motion, which was after expiration of the six month period.

State v. McCoy, 889 So.2d 1026 (La. App. 2004) reversed a judgment vacating a bond forfeiture. La. C. Cr. P. Art. 345 allows the surety six months from the mailing of notice of bond forfeiture in which to surrender the defendant. The surety moved to extend the period, the state withdrew its opposition to the motion, and the trial court granted an extension. The surety surrendered the defendant one day after expiration of the extended period. The Court of Appeals held that the trial court did not have discretion to extend the surrender period, and even if the state’s acquiescence legitimized the extension, the surrender was not within the extended period. In addition, the various statutory procedures to obtain relief from the forfeiture were not followed.

In State v. Turner, 2004 WL 2806466 (La. App. December 8, 2004) the criminal falsely identified himself as his younger brother. The Sheriff’s office did nothing to verify his identity. The bond was issued in the name of the brother in reliance on the false identification. The defendant failed to appear and a warrant was issued in the brother’s name. Eventually, the mistake was discovered and corrected. The surety moved to set aside the forfeiture more than six months after the notice of forfeiture was mailed. Nevertheless, both the trial court and the Court of Appeals held that the surety should not be penalized for failing to produce the defendant because that failure was caused by reasonable reliance on false information provided by the state.

State v. Rivera, 894 So.2d 496 (La. App. 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant was a native of Mexico and was voluntarily deported immediately after his release. He did not appear for arraignment and the bond was forfeited. Notice of forfeiture was mailed to the surety and agent. Deportation is not one of the grounds for non-forfeiture enumerated in La. R.S. §15:87 (which can be raised within six months of mailing the notice), and therefore the surety could proceed only by summary proceeding in the criminal case under La. R.S. §15:85. However, such summary proceedings must be brought within the 60-day period following mailing of the notice, and the surety’s motion was untimely.

In State v. Gibson, 2005 WL 675664 (La. App. March 24, 2005) the clerk mailed notice of the judgment of bond forfeiture to the surety and to the defendant, but the envelop to the defendant had the wrong zip code. The rest of the address was correct, and there was no allegation that the notice was not received or that the surety was prejudiced by the error. The surety moved to set aside the judgment, which was denied, and the surety appealed. The Court of appeals affirmed. The statute required mailing to the address on the bond, but does not define address. The court suggests, over a dissent, that the zip code should not be considered part of the address, but the judges agreed that the intent of the statute is to provide notice and that in this instance notice was provided and no prejudice suffered, therefore, in this instance, failure to include the correct zip code did not render the address invalid.

United States v. Green, 2005 WL 1400426 (E.D. La. June 6, 2005) charged a Louisiana district court judge in Jefferson Parish with accepting, and Bail Bonds Unlimited and Norman Bowley with giving, bribes in return for various favors related to bail bonds.

Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.

Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.

In State v. Melancon, 2005 WL 2320037 (La. App. September 23, 2005) the defendant failed to appear and the court issued a bench warrant and signed a judgment of bond forfeiture. Some time later the defendant went with a representative of the surety to the sheriff’s office. Upon being informed by the sheriff that she was in his office, the court recalled the warrant. The Court held that her appearance at the sheriff’s office was an “appearance” under La. R.S. 15:85 (that is, “appearance” does not mean just an appearance in court) and the surety was entitled to relief from the forfeiture judgment. [Published].

State v. Davis, 2005 WL 2374722 (La. App. September 28, 2005) affirmed judgment of forfeiture against the surety. The Court rejected the surety’s argument that statutory notice of the court appearance was not given to the defendant. Notice was sent by certified mail and attempted personal delivery to the address the defendant gave on the bond. It turned out to be a vacant house, and the surety argued that actual notice was required. The Court held that the defendant had the obligation to file any change of address, and that notice sent to the address of record in the case was sufficient.

Williams v. City of Jeanerette, 2005 WL 3113024 (W.D.La. November 21, 2005) denied the surety’s motion for summary judgment in a suit based on alleged torts of a bounty hunter. The surety argued that the bounty hunter was an independent contractor, but the court held that there were genuine issues of fact.

In State v. Murphy, 2005 WL 3417332 (La. App. December 14, 2005) the defendant failed to appear and the trial court ordered the bond forfeited and a bench warrant issued, but no judgment of forfeiture was signed. Five months later, the forfeiture was set aside, the warrant recalled, and the defendant ordered to appear on a new date. He again did not appear, and this time a judgment forfeiting the bond was signed and timely notice mailed to the surety and bail agent. The surety argued that because notice was not mailed within 60 days of the original failure to appear and forfeiture, the bond was released. The Court held that the 60 days in which the clerk must mail notice of forfeiture runs from the date of nonappearance that results in a signed forfeiture order. If there is no signed judgment, even though there was a failure to appear, there is no final judgment and no duty to mail the notice. The Court affirmed the trial court’s denial of the surety and agent’s motion to set aside the forfeiture judgment.

In State v. Wilson, 2005 WL 3416282 (La. App. December 14, 2005) Bossier City charged the defendant with theft, and he was ordered to appear in the Bossier City Court. The obligee of the Bond was the Mayor of Bossier City, and the power of attorney stated that it was not transferable to another court except for change of venue under La. C. Cr. P. Art. 626. The Sheriff sent a letter to the defendant telling him to appear to answer the theft charge in the Bossier Parish District Court. The Court held that the bond was discharged because the change of venue procedures of La. C. Cr. P. Articles 621 – 627 were not followed and the power of attorney clearly limited the bond to appearance in the Bossier City court. The Court rejected the state’s argument that the power of attorney was just an agreement between the surety and agent and stated, “the power of attorney is a critical and mandated portion of the bail bonding agreement. It is to be viewed and read as part of the total bail bond agreement.”

In State v. McLaurin, 2006 WL 782849 (La.App. March 28, 2006) the bond contained an appearance date, but the date was changed. The court attempted unsuccessfully to give the defendant notice of the new date by personal service, but did not give the surety notice. The defendant appeared on the original date and filled out a form to change her address. The record does not show whether she was given notice of the new date, but she failed to appear on the new date, and the court forfeited the bond and denied the surety’s motion to set the forfeiture aside. The Court of Appeals reversed because the surety was not given notice of the new appearance date as required by La.C.Cr.P. art. 344. The Court held, “a judgment of bond forfeiture is only to be rendered upon proof of delivery or mailing of notice of the appearance date to the surety, when that date has been changed from the one listed on the appearance bond.” The Court did not reach the problem with notice to the defendant, but expressed skepticism that it would have supported a forfeiture judgment.

In State v. Ramee, 2006 WL 1228942 (La.App. May 9, 2006) the defendant failed to appear and the bond was forfeited. Several months later, but within the six month appearance period, the defendant was incarcerated for two days in another Parish. The Court held that La.C.Cr.P. 345 did not provide relief because the defendant was released. The Court interpreted section 345 to apply only if the surety was unable to return the defendant because the defendant was incarcerated and was still incarcerated. Presumably the Court meant still incarcerated at the time the surety’s motion was filed. The Court disagreed with the trial court that denied the surety’s motion to set aside the forfeiture because the surety did not tender transportation costs pursuant to section 345 but nevertheless affirmed the result because section 345 did not apply at all. The Court also noted that La.R.S. 15:87 provides relief to the surety if the defendant’s original failure to appear was because of incarceration on the appearance date.

In Louisiana Bail Bonds, Inc. v. State, 2006 WL 1329693 (La.App. May 17, 2006) the defendant failed to appear, and the court issued a bench warrant and forfeited the bond. No written order of forfeiture was signed, however, and no notice of forfeiture was mailed. Several months later, the court recalled the bench warrant and set aside the forfeiture. The defendant again failed to appear, and the bond was forfeited properly and notice sent to the surety.

The surety and bail agent argued that the bond was released because no notice was mailed within 60 days of the original failure to appear as required by La. R.S. 15:85. The Court held that the notice requirement applied only if there was a written forfeiture order. Since in this case there was no written order for the first forfeiture, the 60 day period to mail notice did not apply and the trial court was free to set aside the forfeiture and start over. The Court affirmed judgment against the surety.

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In Martin v. Commonwealth, 2003 WL 22681798 (Ken. App. November 14, 2003) the defendant violated a non-appearance condition of his bond (contact with the minor victim of the crime). The surety, the defendant’s father, appealed forfeiture of 50% of the $20,000 cash bond. The court held that forfeiture was justified but the amount excessive.

Clemons v. Commonwealth, 2004 WL 2484530 (Ken. App. November 5, 2004) held that the bond could be forfeited based on breach of conditions other than appearance and that forfeiture of $5,000 of a $20,000 bond was not excessive where the defendant violated conditions not to consume alcohol and to be at home from 6:00 p.m. to 6:00 a.m.

Woolsey v. Commonwealth, 2005 WL 1125183 (Ken. App. May 13, 2005) held that a cash bond deposited by the defendant’s mother could be forfeited based on his violation of conditions other than appearance. After release, the defendant was re-arrested on various drug charges. He admitted that he violated the conditions of his release and that the bond could be revoked because of his violation, but he argued that the bond could not be forfeited. The Court disagreed. The case involved a cash bond not a commercial surety bond, and the Court does not discuss what, if any, difference a surety bond would have made to its decision.

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In State v. Chukes, 2003 WL 23018243 (Kan. App. December 24, 2003) the bond was signed by the defendant as principal and by the bail agent as surety. There was no execution by an actual surety company although a power of attorney for the bail agent as agent for a surety company was attached. The appeal was from entry of judgment on the bond and an order refusing to set the judgment aside. The court held that the judgment (which was against the principal and the bail agent only) and refusal to set it aside were not abuses of discretion and so under Kansa law the judgment is affirmed as to the agent. The surety also purportedly appealed even though no judgment was entered against it and it was not a party to the case, and the court dismissed the surety’s appeal for lack of standing.

In State v. Burhans, 89 P.3d 629 (Kan. 2004) a bail bondsman was convicted of criminal trespass and assault for going on the bond principal’s sister’s property and threatening the sister’s husband, allegedly in an attempt to apprehend the principal. The court considered cases from other jurisdictions dealing with the rights of bail agents to enter property of third parties and concluded that it did not have to decide whether a reasonable belief that the principal was on the property would have justified the bondsman’s actions since, under the facts of the case, there was no basis to believe the principal was present.

State v. Ocampo-Navarro, 2004 WL 1609122 (Kan. App. July 16, 2004) held that the surety was discharged by a material alternation in the risk of the bond. As issued, the bond was conditioned on appearance and on the defendant not having contact with the alleged victim or others under the age of 18. Without notice to the surety, or obtaining its consent, the court added a condition that the defendant be subject to electronic monitoring of his location. He did not appear to have the electronic monitoring put in place, and the court forfeited the bond. He then did not appear for a preliminary hearing and the court forfeited the bond again. The state initially sought judgment against the bond for both forfeitures but eventually withdrew the request for forfeiture based on failing to appear for the electronic monitoring. Judgment, therefore, was entered only on the forfeiture for failure to appear at the preliminary hearing.

The Court of Appeals reversed and discharged the bond on the theory that adding the electronic monitoring requirement was a material change in the bond that increased the surety’s risk. The Court reasoned that since the additional condition could result in bond forfeiture it was material and increased the surety’s risk of loss. [Not published].

State v. Landes, 2004 WL 1683126 (Kan. App. July 23, 2004) held that the trial court was within its discretion in refusing to remit any part of a forfeited bond. The defendant was apprehended shortly after he failed to appear, but the surety and bail agent did not play any part in the apprehension. The trial court thought the bail agent should have done a better job of monitoring the defendant and his appearance obligations. The Court also refused to consider the bail agent’s argument that the judgment should have been only against the actual surety not the agent because the argument was not raised in the trial court. [Not published.]

State v. Sedam, 122 P.3d 829 (Kan. App. 2005) held that the appearance bond was discharged by a material change without notice to the surety or the surety’s consent. The defendant failed to appear and the bond was forfeited. Three days later the defendant appeared in court and the court “reinstated” the bond and added a condition that the defendant be supervised by pretrial services. Part of such supervision was to report to pretrial services weekly and undergo drug testing. After giving a urine sample showing use of amphetamines, the defendant never came back. When he did not appear at the next court date, the bond was forfeited. The state argued that the addition of pretrial supervision benefited the surety, but the Court of Appeals thought the surety’s risk was increased by requirement of drug testing and more frequent appearances even though the ultimate forfeiture was for failure to appear in court. The Court held, “By reinstating a forfeited bond with new conditions with no notice to the surety, the court in fact rewrote the bond and gave the surety no opportunity to evaluate whether he wanted to assume the increased risk of forfeiture. Imposing a money judgment under such facts is an abuse of discretion.”

City of Dodge City v. Reyes, 2006 WL 1359192 (Kan.App. May 19, 2006) held that an appearance bond in connection with an appeal to the district court was valid even though the defendant did not sign it within the time required. The surety’s agent signed the bond on the proper form, and the court held that was sufficient.

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