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.
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.
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) denies 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 files a replacement opinion reaching the same ultimate conclusion. The case involves 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, 2005 WL 3047062 (S.D.Tex. May 20, 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, 2005 WL 3501714 (Tex. App. – Waco December 21, 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. [Published].
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.