Bail Bond Agent Blog

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.

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In State v. Davis, 2004 WL 892530 (Tenn. Crim. App. April 26, 2004) the defendant was arrested for DUI and posted a $1,750 bond. He appeared as required, pled guilty and was sentenced to 48 hours in jail, the balance of a year on probation and a $350 fine. He was also ordered not to drive for a year and to appear before the court in three months for a “probation hearing.” He served the 48 hours but did not pay the fine or appear for the probation hearing. The court forfeited the bond and ordered the bondsman to pay the fine plus costs. On appeal the State and the bondsman agreed that the bond was discharged when the defendant pled guilty and was sentenced, but the court of appeals disagreed. It held that the statute relied on by the bondsman had been partially repealed by implication because in another statute enacted later the legislature allowed the court to continue the bond if a defendant is granted probation. Since the entire bond of $1,750 could be forfeit, the court had discretion to reduce the forfeiture to the amount of the fine and costs and then to apply the forfeited sum to their payment. The Court of Appeals issued a superceding opinion, State v. Davis, 2004 WL 1056474 (Tenn. Crim. App. May11, 2004), and the Supreme Court reversed the case, State v. Davis, 2005 WL 2396274 (Tenn. September 29, 2005).

In re Guy James Bonding, 2004 WL 1402562 (Tenn. Crim. App. June 23, 2004) reviewed the statutory basis for relief from forfeiture under Tennessee law. The defendant failed to appear and a conditional forfeiture was entered. The surety paid the forfeiture but subsequently recovered and surrendered the defendant. The trial court denied relief from the forfeiture on the ground that the request came too late. The Court of Appeals reversed and held that once the bail amount was paid, whether there was a final forfeiture order or not, relief could be granted under only Tenn. Code §40-11-204 and that there was no time limit for relief under that statute. The relief is equitable, however, and the party seeking it must establish a basis on which it should be granted. The case, therefore, was remanded to the trial court to hold a hearing to determine the relief, if any, to which the surety is entitled.

In Graham v. General Sessions Court of Franklin County, 2004 WL 2246195 (Tenn. Ct. App. October 5, 2004) two professional bondsmen challenged an order that bail of less than $4,400 could be made by any two owners of real property in Franklin County. The Court of Appeals held that aspect of the order violated the controlling Tennessee statute, which requires that persons guarantying bail have a net worth in excess of the bail amount, and designating the sheriff or judicial commissioner as the officials to decide whether the statutory requirements have been met.

In re AB Bonding Company, Inc., 2004 WL 2853540 (Tenn. Crim. App. December 10, 2004) dismissed the surety’s appeal of the trial court’s denial of the surety’s motion to remit forfeitures of a series of bonds for the same defendant. After the defendant failed to appear, the surety paid the full amount of the bonds and hired a bounty hunter who eventually recovered the defendant. The trial court remitted the amount of the surety’s expenses in the successful recovery effort but denied relief as to the rest of the forfeitures. The surety appealed. The Court held that the record did not include final judgments entered by the trial court against the surety, that final judgments are a necessary prerequisite to jurisdiction in the court of appeals, and that the appeal accordingly must be dismissed.

In State v. Bradley, 2005 WL 1105182 (Tenn. Crim. App. May 5, 2005) the defendant was charged in General Sessions court with several traffic offenses and released on $10,000 bond. He failed to appear and a conditional judgment was entered to forfeit the bond. He was later indicted by a grand jury for the same offenses and the Circuit Court forfeited the bond. The surety paid the forfeiture, but eventually located the defendant in jail in another state. He was returned to Tennessee and pled guilty. The Court of Appeals held that the surety was entitled to return of the forfeited amount because the bond was posted in the General Sessions court and the Circuit Court proceeding was a new action not a transfer of the General Sessions case. The Circuit Court was without jurisdiction to forfeit the bond, and its judgment of forfeiture was void. Only the General Sessions court could forfeit the bond, and it had not done so when the defendant appeared and pled guilty. This disposition of the charges against him operated to discharge his surety. Therefore, the surety was entitled to return of its $10,000.

In City Bonding Company, Inc. v. Hauther, 2005 WL 1159431 (E.D. Tenn. May 17, 2005) an established professional bail bond firm, City Bonding Company, Inc., sued a start-up firm, City & County Bail Bonding Company, Inc., for trademark infringement and unfair competition. The Court granted a preliminary injunction against the defendant’s use of a name confusingly similar to City Bonding Company.

In State v. Cabellero-Grajeda, 2005 WL 1931402 (Tenn. Crim. App. August 11, 2005) the defendant’s girlfriend pledged property in El Paso, Texas as security for the bond. The defendant was turned over to INS, which subsequently released him on another bond. After he failed to appear for trial and his bond was conditionally forfeited, the bondsman discovered that the girlfriend did not own the property in El Paso. The bondsman sought relief because the state had indicted the defendant on another, more serious charge after his release, because the girlfriend did not own the property, and because the defendant was turned over to INS. The Court affirmed the trial court’s denial of the requested relief and also held that the criminal court did not have jurisdiction over the bondsman’s claim against the girlfriend.

State v. Davis, 2005 WL 2396274 (Tenn. September 29, 2005) reversed the Court of Criminal Appeals decision reported at 2004 WL 1056474 (Tenn. Crim. App. May 11, 2004) and held the bond was discharged and the surety released from liability once the defendant was convicted and sentenced. Therefore, the surety could have no responsibility for the fees and costs owed by the defendant who did not appear at a post-sentence probation hearing.

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In State v. Cochran, 594 S.E.2d 844 (S.C. 2004) the bail agent signed the bonds as surety and attached a power of attorney from Frontier Insurance Company. The state sued for the amount owed on the forfeited (in South Carolina, “estreated”) bonds. The bail agent argued that Frontier was in rehabilitation and the Order of Rehabilitation prevented the suit. He claimed that he was just the agent for a known principal and so had no personal liability. The Court rejected the argument and pointed out that the bond on its face showed the bail agent as the surety not as agent for someone else.
In Integrity Bail Bonds v. Pinellas County Board of County Commissioners, 2004 WL 784734 (Fla. App. April 14, 2004) the State, after the bond was written, increased the offense charged from a third degree felony to a second degree felony. The Court held that this change, which increased the potential maximum sentence from 5 years to 15 years, was a substantial change that increased the likelihood the defendant would abscond. Therefore, the bond was discharged, and the trial court erred in not setting aside the forfeiture (”estreature”) entered after the defendant failed to appear. The Court rejected the County’s argument that the surety had a duty to object after receiving notice of the increased charge.

In Ex parte Gene Frye Bail Bonds, 2004 WL 943531 (S.C. App. May 3, 2004) the defendant was arrested on additional charges and failed to make a court appearance. The surety sought relief from its obligations on the bond. The statute allowing such relief, S.C. Code §38-53-50, prior to its amendment in 1998, stated that the court could order a partial refund of the fee. That provision was eliminated in the 1998 amendments, and the Court of Appeals concluded “the governing statute does not authorize the circuit court to require a bonding company to pay any portion of the fee back to the defendant or his guarantor in order to be released from a bond.”

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In International Fidelity Insurance Co. v. Sanchez-Ramos, 2005 WL 2837459 (D.P.R. October 26, 2005) the surety challenged orders of the Commonwealth authorities that it pay some 176 forfeiture judgments for which it was never given proper notice. The surety asserted causes of action under the U.S. Constitution and federal laws as well as under Puerto Rican law. The court held that it would abstain from hearing the case because pre-existing, ongoing administrative proceedings before the Commissioner of Insurance, and review of those proceedings in the Puerto Rican courts, would give the surety an adequate opportunity to raise its federal claims.

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In Commonwealth of Pennsylvania v. Mayfield, 2003 WL 21246377 (Pa. Super. May 30, 2003) the defendant violated a condition of his bail by committing an assault shortly after release. The trial court forfeited the bond. The appellate court reversed. The court held that in considering remission of forfeiture, a court must consider the willfulness of the defendant’s breach, the cost, inconvenience and prejudice to the government and any explanation or mitigating circumstances. The Court of Appeals did not think the facts supported forfeiture, but at least the willfulness test should have been met since upon his release the defendant went to his girlfriend’s house and broke her nose. Because there were no apparent mitigating circumstances, in effect the court held that a bail bond cannot be forfeited unless the government can show prejudice from the defendant’s breach. There was a dissenting opinion.

In Commonwealth v. Hernandez, 2005 WL 2403814 (Pa. Super. September 30, 2005) the trial court refused to consider the equitable factors relevant to remission of forfeiture because the surety’s efforts did not have a substantial impact on the defendant’s recovery. The Court of Appeals held that the three equitable factors should be considered, along with the bondsmen’s role in recovering the defendant. Upon consideration of the factors, however, the Court of Appeals held that no remission was justified and affirmed the trial court’s result. The factors were: (1) willfulness of the defendant’s breach, (2) cost, delay and inconvenience to the government and the court, and (3) any explanation or mitigating factors. In this case, the defendant acted willfully and there was prejudice to the government and the court. There were no mitigating factors and thus no basis for relief from the forfeiture.

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State of Oklahoma v. Torres, 2004 WL 334978 (Okl. February 24, 2004) held that the appellate courts could not consider events happening during the appeal, in this case the apprehension and return of the defendant, in deciding whether the bond forfeiture should be set aside. The majority also held that on the record presented the trial court did not abuse its discretion in refusing to vacate the forfeiture on a showing that the bail agent located the defendant in Mexico and requested the Oklahoma district attorney’s office to request a federal fugitive warrant from the U.S. Attorney’s office but that the district attorney unreasonably delayed making the request. In a dissenting opinion reported separately at 2004 WL 334981 (Okl. February 24, 2004), two judges agreed that the court could not consider the mid-appeal return of the defendant but argued that the trial court abused its discretion by denying the motion for relief from forfeiture. Both the majority and the dissent were critical of the quality of the record made in the trial court, but the determining factor for the dissent seemed to be the trial judge’s comment that the bail agent could have expedited the defendant’s return by bribing the Mexican authorities. The dissenting judges argued that if the bail agent took every legal step available, he established good cause to vacate the forfeiture, and that if the trial court required illegal steps he abused his discretion.

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In City of Xenia v. Diaz, 2003 WL 22972039 (Ohio App. December 19, 2003) the court treated a cash deposit made by a third party as a cash bond by the defendant and not as a surety bond. The defendant was subject to an INS detainer, and even though bond was posted he never was released from custody. It appears the City did not try to have him returned for trial. The court held that the appellant who furnished the cash was not entitled to the statutory pre-forfeiture notice and an opportunity to show why the bond should not be forfeited which a surety would have been entitled to receive. It held, however, that he was entitled to a post forfeiture hearing to try to show that performance of the obligation was impossible (i.e., that the defendant was in federal custody). This case ought to give pause to anyone considering posting cash bail instead of a surety recognizance in Ohio. It is clear that the procedural protections extended to the surety will be lost if cash bail is provided.

In State v. Delgado, 2004 WL 41404 (Ohio App. January 9, 2004) the trial court granted two extensions of time for the bail bond surety to apprehend the defendant but refused to remit any portion of the forfeiture when the defendant was returned shortly after forfeiture. The trial court’s only reasoning was that the nature of the surety’s business was to assume the risk that the defendant would not appear. The Court of Appeals reversed and remanded holding that the trial court had to consider a number of factors including the delay and cost to the state in obtaining the defendant and preparing for trial a second time, the surety’s efforts to return the defendant, and any other factors the court finds to be relevant. The trial court has discretion but must exercise it in light of the purpose of bail to assure that the defendant appears at all stages of the proceeding.

In State v. Hardin, 2003 WL 23167301 (Ohio App. December 31, 2003) motions for remission of bond forfeitures were filed without requesting a hearing or setting forth any factual basis for relief. The trial court denied the motions without a hearing. The court of appeals affirmed, in a 2-1 decision, even though there was no basis in the record to review whether the trial court considered the various factors governing requests for remission of forfeiture. If the sureties had asked for a hearing and alleged facts entitling them to relief, the opinion suggests they would have been entitled to a hearing.

Jones v. Bea, 2004 WL 442876 (Ohio App. March 12, 2004) is a very strange case. The defendant’s father testified he obtained a $15,205 cashiers check payable to the Clerk of Court to pay a 10% cash bond plus fees to the clerk (he would have been liable for the balance of the $120,000 bond if his son failed to appear) but the bail agent waylaid him at the clerk’s office and insisted on signing the bond for the balance as surety, and they agreed that when the $15,000 was returned the bail agent would give the father $8,000 of the $15,000 and keep the rest as his fee. The defendant did not appear for sentencing and the bond was forfeited. The father then sued the bail agent for converting the cashiers check and won. The Court of Appeals reversed and held that since there was no refund there was no obligation to return anything.

In State v. Harshman, 2004 WL 491410 (Ohio App. March 15, 2004) the trial court ordered that cash bail deposited by the defendant and his mother be applied to court costs and restitution. The Court of Appeals held that this was improper. The Court first noted that the Ohio Supreme Court has held that the purpose of bail is the appearance of the defendant and reasons for forfeiture must be related to nonappearance. The State argued that the form signed when the bail was deposited consented to its application to costs and restitution, but the Court held that the consent was invalid because the availability of bail was conditioned on signing the form.

In State v. Rich, 2004 WL 2390085 (Ohio App. October 22, 2004) the surety (Capital Bonding Corp.) appealed denial of its motions to remit bond forfeitures in two cases in which it surrendered the defendants after forfeiture was entered. In the two cases the trial court made identical findings, including that the surety was negligent in writing the bond because the defendant had failed to appear on prior occasions. The Court of Appeals first held that the 30 day period to appeal ran from the date the clerk entered the defendant’s sentence, not the date the bond was forfeited or the date the motion for remission was denied. The Court also held that the trial court did not abuse its discretion in one of the cases because the record supported its findings but that in the other case there was no evidence the defendant had failed to appear on a prior occasion or that the state was inconvenienced by the failure to appear. In the latter case, the Court reversed and remanded for a determination of how much of the forfeiture should be remitted.

State v. Owens, 2004 WL 2526412 (Ohio App. November 9, 2004) held that the trial court abused its discretion in ordering forfeiture of the defendant’s cash bond. The trial court failed to consider the brief delay between the defendant’s breach and her voluntary appearance and the lack of any cost or inconvenience to the state. Rather than remand for consideration in light of these factors, however, the Court of Appeals directed that the bond money be released.

In Maloney v. Ohio Department of Insurance, 2004 WL 2590952 (Ohio App. October 4, 2004) the Court affirmed the Department’s denial of a bail bondsman’s license to a convicted felon. Ohio R.C. 3905.14 specifically provides that the superintendent of insurance may deny an application based on such a conviction, and there was no abuse of discretion in doing so in this case.

In City of Willoughby v. Beckwith, 2005 WL 880220 (Ohio App. April 15, 2005) the surety filed a motion to vacate forfeiture of its bond and a motion for reconsideration of the denial of the motion to vacate. It then appealed denial of the motion for reconsideration. The Court dismissed the appeal on the grounds that the surety could have appealed the original order of forfeiture or the order denying its motion to vacate the forfeiture, but that a motion for reconsideration of a final order, and any decision on such a motion, are nullities from which no appeal can be taken. Therefore, the appeal was untimely and was dismissed.

Castle Bail Bonds, Inc. v. Stoneman, 2005 WL 1005276 (Ohio App. April 28, 2005) affirmed summary judgment for the surety against the indemnitors (the parents of the defendant) based on a promissory note and indemnity agreement they signed. The court rejected the indemnitors’ argument that they should not be liable because they did not read what they signed or no one explained it to them.

State v. Sheldon, 2005 WL 1283681 (Ohio App. May 27, 2005) held that a bail bond can be revoked for violation of conditions other than appearance, but that a forfeiture could be entered only if the defendant failed to appear. The defendant’s presence at the hearing to show cause why the bond should not be forfeited prevented the trail court from entering a partial forfeiture, and the trial court’s judgment was reversed.

State v. Stoneman, 2005 WL 1384662 (Ohio App. June 9, 2005) denied the surety’s motion to remit all or part of the bond forfeiture. The defendant fled, and the surety was unable to recover him in spite of several time extensions. After the bond was forfeited, the defendant was captured by law enforcement authorities in Canada and returned to Ohio. The court refused to remit any part of the forfeiture and held that the surety’s small expense in trying to locate the defendant weighed against the major, successful efforts of law enforcement personnel fully justified the trail court’s denial of any remittitur.

Smith v. Leis, 835 N.E.2d 5 (Ohio 2005) held that cash only bail violated the provision of the Ohio Constitution guarantying that “all persons shall be bailable by sufficient sureties . . . .” Prior to 1998, the Court had held in several cases that the sufficient sureties clause barred cash only bail, but in 1998 the Constitution was amended, and the issue before the Court was whether the amendments changed that result. In a 4-3 decision, the Court held that it did not. The purpose of the amendment was to allow pre-trial detention, under certain circumstances, of defendants charged with less than a capital offense. Among other things, the amendment added the following to Section 9, Art. I, “the court may determine at any time the type, amount, and conditions of bail.” The Court thought that reading Section 9 as a whole, the added language did not give the court an option to prohibit bail by sufficient sureties.

In State v. Hodge, 2005 WL 2936283 (Ohio App. November 7, 2005) the defendant posted a $50,000 cash bond and fled to Florida. She was arrested there and returned. The state incurred costs of about $6,000 to transport her back to Ohio. The Court affirmed denial of her motion for partial remission of the forfeiture. Her failure to appear was willful, and she was apprehended in Florida and involuntarily returned. The factors to be considered in a request for remission are the cost and inconvenience to the state, the willfulness of the violation and such other factors as the trail court finds relevant. The court properly balanced the relevant factors and denial of the defendant’s motion was not arbitrary, unreasonable or unconscionable.

In State v. Carter, 2005 WL 3337733 (Ohio App. December 9, 2005) the defendant had failed to appear in court 66 times in the past including at least three times in this case. Nevertheless, the bail agency provided a bond, the defendant did not appear, and the bond was forfeited. After the police arrested the defendant, the bail agency moved to remit the forfeiture. The trial court denied the motion, and the Court of Appeals affirmed. Remission is within the discretion of the trial court, and none of the factors to be considered favored remission. The Court noted the defendant’s history and stated, “A company engaged in the bail bond business is ultimately engaged in the business of guaranteeing attendance of the defendant at court hearings.”

In State ex rel. D & D Bonding, Ltd. v. Johnston, 2005 WL 3497709 (Ohio App. December 13, 2005) a bail bond agency and its owners and employees sought writs of Prohibition and mandamus to compel the Judge and Clerk of the Jackson County Municipal Court to accept bail bonds from them. The Court denied all relief. The facts are somewhat muddled, but on January 1, 2004, the Judge issued a bail bond schedule that permitted only cash bonds. On January 23 she withdrew that schedule and issued a replacement that permitted either 100% surety bonds or 10% cash bonds. The plaintiffs did not challenge the disparate treatment of surety bonds and cash bonds. The Court denied as moot the request for an order directing the Judge to accept surety bonds.

The plaintiffs also alleged that the Judge instructed the Clerk not to accept their bonds, but the proof did not support the allegation. The Court also stated that the Judge would have been within her discretion to order the clerk’s office to refuse bonds from an agency if she had doubts about the agent’s authority or intention to pay forfeitures.

State v. Warden, 2005 WL 3507844 (Ohio App. December 23, 2005) held that cash bail deposited by someone other than the defendant could not be used to pay the defendant’s fine. The Court stated that a bail bond can be forfeited only for failure to appear and that cash or securities deposited by anyone other than the defendant cannot be used to pay the defendant’s legal obligations except with the consent of the person making the deposit.

In State v. Hancock, 2006 WL 827386 (Ohio App. March 31, 2006) the defendant failed to appear and the bond was forfeited. The defendant appeared before the hearing to show cause, however, and the court reinstated the bond without notice to the surety or the surety’s consent. The defendant eventually pled guilty but did not appear for sentencing. The trial court forfeited the bond and in due course entered judgment against the surety. The Court of Appeals vacated the judgment because Ohio law permits forfeiture of bonds and remission of forfeitures, but it does not permit reinstatement of a forfeited bond. Once the bond is forfeited, if the defendant appears the court must require a new bond and consider remission of the forfeiture. In this case, the bond was forfeited the first time the defendant failed to appear, and on remand the trial court was directed to consider remission of that initial forfeiture.

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State v. Poteat, 594 S.E.2d 253 (N.C. App. 2004) held that N.C. Gen. Stat. §15A-544.5(f) barred the court from setting aside the bond forfeiture. The statute provides that a forfeiture cannot be set aside for any reason if the surety or bail agent had “notice or actual knowledge” before executing the bond that the defendant had failed to appear on two or more prior occasions. The court held that “notice” includes constructive as well as actual notice, and that the facts of the case were sufficient to put the bail agent on constructive notice of the defendant’s two prior failures to appear.

In State v. Evans, 601 S.E.2d 877 (N.C. App. 2004) , affirmed 610 S.E.2d 198 (N.C. 2005) the surety surrendered the defendant before expiration of the 150 day period at the end of which the forfeiture would become final. The surety also filed a timely motion to set aside the forfeiture, but the surety did not actually mail the motion until 9 days after the date he certified he had mailed it. Such delay in mailing seemed to be this surety’s pattern of behavior and had the effect of reducing the Board of Education’s time to respond to the motion. The trial court denied the motion based on the delayed mailing (by statute the surety was entitled to have the forfeiture set aside when he surrendered the defendant, so the motion should have been granted if addressed on its merits). The surety did not appeal that denial but several months later filed a motion for relief from the judgment. In a 2-1 decision, the Court of Appeals held, in effect, that being right was not a sufficient “extraordinary circumstance” mandating relief from a final judgment. The dissent disagreed and thought that precedent established the post-judgment relief should have been granted.

State v. Robertson, 2004 WL 2340991 (N.C. App. October 19, 2004) is a case which cries out for legislative correction. The defendant was incarcerated in a county jail on a fugitive warrant on the day he was supposed to appear. The surety timely moved for relief from forfeiture. The trial court granted the surety relief, and the court of appeals reversed. The court applied the relevant statute, G.S. §15A-544.5, literally and held that since the defendant was not incarcerated in a “unit of the Department of Corrections and is serving a sentence” no relief could be granted. The surety argued that it met the spirit if not the letter of the law. The court’s answer was that “This argument, however, is for the General Assembly to address. We are bound by the statute.” Presumably the School Boards in North Carolina, which receive the money from bond forfeitures, will now start opposing any relief based on the fact that the defendant was incarcerated if he or she was not in a state Department of Corrections unit and also serving a sentence.

In State v. Saunders, 2005 WL 14108 (N.C. App. January 4, 2005) the clerk delayed for 18 months in mailing the surety notice of the defendant’s failure to appear and entry of the order of forfeiture, but the judgment was not entered until more than the required 60 days after the notice was given. The court found that the surety was not prejudiced by the delay; indeed if the surety had been monitoring the case it would have had a substantial additional period to locate and return the defendant. The court also held that the statute in effect at the time the bond was issued controlled, and that the addition of a street address above the surety’s post office box did not make mailing of the notice defective.

State v. Moore County Board of Education, 2005 WL 90939 (N.C. App. January 18, 2005) held that post judgment proceedings challenging an order granting relief from forfeiture was subject to the civil rules of procedure, and therefore the Board of Education’s motion for reconsideration of the order was timely and should have been decided on its merits. The Court did not consider whether granting the surety relief from the forfeiture was proper. The case was remanded to consider the Scholl Board’s motion on its merits.

State v. Belton, 610 S.E.2d 283 (N.C. App. 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk’s office and a certificate of mailing in the file. The surety filed an affidavit of one of its employees that the notice was not received, but the Court held that there was sufficient evidence to support the trial court’s finding of fact that the notice was mailed. The court refused to consider two other arguments because they were not included in the assignments of error in the appeal.

State v. Banuelos, 2005 WL 756893 (N.C. App. April 5, 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk’s office, a certificate of mailing in the file and the undeliverable returned envelop sent to the defendant and kept in the court file. An employee of Capitol Bonding Corporation testified that the notice was not received. The court noted that she admitted she had filed seven to ten affidavits claiming that notices from various other counties in North Carolina had not been received. The Court held that there was sufficient evidence to support the trial court’s finding of fact that the notice was mailed. The court refused to consider several other arguments because they were not included in the assignments of error or not addressed in the surety’s brief. This appeal is virtually identical to State v. Belton decided on the same day.

State v. Paulino, 2005 WL 756890 (N.C. App. April 5, 2005) is almost identical to State v. Belton, 2005 WL 756621 and State v. Banuelos, 2005 WL 756893 decided by the same court on the same day. In each case, Aegis Security Insurance Company appealed denial of relief from bond forfeiture on the ground that notice of the forfeiture was not properly mailed. In each case, the same employee of Capitol Bonding Corporation testified the notice was not received. In each case the Court affirmed the trial court based on the court clerk’s description of the standard procedure to mail the notices and the contents of the record in the case file.

State v. Lopez, 2005 WL 887270 (N.C. App. April 19, 2005) and State v. Rodriguez, 2005 WL 892475 (N.C. App. April 19, 2005) are two more cases in which the Court affirmed forfeiture of bonds in spite of testimony by an employee of Capital Bonding that notice of the forfeiture was not received. The trial court held a hearing, and the state’s only evidence was the certificates of mailing from the court files. The Court of Appeals held that this was sufficient to support a finding that the notices were mailed as required by the statute.

State v. Ferrer, 611 S.E.2d 881 (N.C. App. 2005) is another appeal by Aegis based on testimony by the same Capitol Bonding employee that notice of forfeiture was not received. Two deputy court clerks testified on the procedures to mail forfeiture notices (one of them also remembered mailing the notice), and the trial court found that the notice was mailed. The Court of Appeals affirmed refusal to vacate the forfeiture judgment.

State v. Ochoa, 2005 WL 1018070 (N.C. App. May 3, 2005); State v. Landaver, 2005 WL 1018073 (N.C. App. May 3, 2005) and State v. Flores, 2005 WL 1018153 (May 3, 2005) are three more appeals by Aegis Security Insurance Co. of denials of motions to set aside bond forfeitures for lack of evidence of mailing and the alleged unconstitutionality of the bond forfeiture statute. In each case, the Court affirmed the trial court citing State v. Ferrer.

State v. Edwards, 2005 WL 1949517 (N.C. App. August 16, 2005) held that recovery of the defendant after the final judgment of forfeiture had been entered did not constitute “extraordinary circumstances” entitling the surety to relief from the judgment as a matter of law. If the defendant had been returned before final judgment, the court pursuant to G.S. §15A-544.5(b)(3) “shall” set the forfeiture aside. Once the judgment is entered, however, G.S. §15A-544.8 controls and the judgment can be set aside only if proper notice of the forfeiture was not given or the court, in its discretion, finds “extraordinary circumstances” entitling the surety to relief. In this case, the trial court denied relief, and the Court of Appeals affirmed. From the discussion, it seems likely that if the trial court had granted relief, that also would have been affirmed. The concurring judge noted that without a reasonable hope of relief, there is no reason for the surety to spend time and money trying to apprehend the defendant once a judgment is entered.

In State v. Sanchez, 2005 WL 3465562 (N.C.App. December 20, 2005) the defendant failed to appear and the court directed that a warrant be issued and the bond forfeited. The clerk, however, did not mail notice of the forfeiture until 36 days later. N.C. Gen. Stat. §15A-544.4(e) provides that the notice must be mailed not later than the thirtieth day after the date on which the forfeiture is “entered.” The surety moved to set aside the forfeiture, and the trial court denied the motion. The surety appealed, and the parties argued whether the forfeiture was “entered” when the court declared the forfeiture or when the clerk prepared the bond forfeiture notice and keyed the information into the Civil Case Processing System. The Court of Appeals refused to decide the issue because it thought that under N.C. Gen. Stat. §15A-544.5 relief from a forfeiture can be granted for only certain enumerated reasons, and late notice is not one of them. Late notice is a grounds to grant relief from a final judgment of forfeiture under N.C. Gen. Stat. §15A-544.8. In effect, the Court of Appeals held that the surety would have to wait until a judgment was entered and then appeal that as the only way to gain review of the late notice issue.

In State v. Hernandez, 2006 WL 389643 (N.C.App. February 21, 2006) the defendant failed to appear and the bond was forfeited. The clerk, however, did not mail notice of the forfeiture until five months later. North Carolina Gen. Stat. §15A-544.4 required that notice be mailed within 30 days, and on the surety’s motion the trial court entered an Order that set aside the forfeiture, directed that no enforcement of the forfeiture be undertaken, the Department of Insurance not be notified, and the surety be exonerated from all further liability. No appeal was taken from this Order, but the state noticed another appearance in the case and had a new forfeiture entered when the defendant again failed to appear. The surety moved to vacate this second forfeiture on the ground that the bond had been exonerated and no longer secured the defendant’s appearance. The trial court granted the motion, and the Board of Education appealed. The Court of Appeals thought that exoneration of the bond because of the clerk’s failure to mail timely notice was of doubtful validity because late notice is not one of the statutory grounds for exoneration, but it held that the failure to appeal the trial court’s Order exonerating the bond made that Order final and conclusive. It therefore affirmed the trial court’s order vacating the second forfeiture.

State v. Hollars, 2006 WL 537481 (N.C.App. March 7, 2006) affirmed denial of the surety’s motion to set aside forfeiture of the bond. The defendant failed to appear and the surety was given notice. Before the final judgment date, the defendant was arrested in Tennessee, and the surety’s agent appeared in Tennessee and “surrendered” the defendant to the sheriff there. The surety moved to set aside the forfeiture. The Court held that when N.C. Gen. Stat. §15A-540(b) says “a surety may surrender a defendant who is already in custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant” it means any sheriff in North Carolina.

State v. Walker, 2006 WL 997856 (N.C.App. April 18, 2006) held that the professional bondsman knew or should have known that the defendant had failed to appear at least twice prior to the time the bond was written and, therefore, under N.C. Gen. Stat. 15A-544.5(f) forfeiture of the bond could not be set aside for any reason. The Court of Appeals reversed the trial court and reinstated the forfeiture even though the bondsman showed that the charges were resolved. The bond showed the charge as failure to appear, and with that notice the bondsman could have found the other failures to appear from the court record. The Court stated, “with notice that Walker had a prior failure to appear, Trogdon [the bondsman] could have discovered through the exercise of proper diligence that Walker had a second prior failure to appear.” The statute requires notice or actual knowledge of two prior failures to appear, but the Court essentially waters that down to notice or actual knowledge of one failure to appear with the second supplied by what the agent or surety could have found in the court record.

In State v. Teague, 2006 WL 998083 (N.C.App. April 18, 2006) the Court dismissed the School Board’s appeal of a decision to remit forfeiture of the bond because the trial court did not enter its decision via a written order.

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In International Fidelity Insurance Co. v. City of New York, 263 F.Supp.2d 619 (E.D. N.Y. 2003) the surety challenged on constitutional grounds the practice of entering judgment of forfeiture against the surety without any prior notice to the surety. The many counts in the complaint included both specific bonds on which such judgments were entered and general challenges to the procedure. The court seemed to agree with the surety that the failure to give advance notice was a constitutional violation but nevertheless avoided ruling on the merits of the claims. The court held that it lacked jurisdiction over the counts of the complaint addressing specific bonds because they could have been raised in the state court by moving for relief from the judgments. The court also held that the general challenges to the procedure did not present an actual case or controversy because the entry of judgment did not deprive the surety of any constitutionally protected property right. The court, after having the case for over three years, dismissed it on jurisdiction and standing grounds without actually deciding the merits of any of the claims.

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In State v. Valles, 99 P.3d 679 (N.M. App. 2004) the bond, on a form mandated by court rules, provided that it remained in force until discharged by the court. The applicable statute, however, stated that the bond was null and void upon a finding that the accused person was guilty. The defendant pled guilty but did not appear for sentencing. The issue was whether the statute or the bond itself controlled. The court held that the statute controlled and reversed a judgment forfeiting the bond.

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