Objectives. An Introduction to Bond Forfeitures. Explore statutes that define bail and bail bond

Transcription

1 An Introduction to Bond Forfeitures Rosie Caballero, ICM CCM Court Administrator Coppell Municipal Court No Court Administrator s Seminar June 23, 2014 Houston, Texas 1 Objectives Explore statutes that define bail and bail bond Discuss procedure involved to forfeit bail bonds and duties of the court clerk Encourage clerk that the pursuing the forfeiture process can help move a court s docket Foresee possible problems the clerk may face 2 3

2 Statutes on Bail Code of Criminal Procedure Art Defines Bail Art How Bail is Forfeited Personal Bond Bail Bond Occupations Code Sec Occupations Code regulates bail bond surety if: 1. County with 110,000 or more, or 2. County <110,00 in which County Bail Bond Board is created 3. Attorney Bond 4 What is Not Bail (not covered) 1. Written promise to appear on citation Sec T.C. 2. Release from custody to appear Art (b) C.C.P. If not appear, judge shall issue a warrant for arrest 3. Plea of Defendant in Detention Art (c) C.C.P. 4. Forfeit cash bond in satisfaction of fine Art C.C.P. (Conditional Plea) 5. Cash Escrow Deposit 5 What is Bail? The security an accused gives that he/she will appear in criminal court and answer an accusation against him/her, and includes: 1. Personal Bond Art.17.01, C.C.P. 2. Bail Bond Art C.C.P.; (1) O. C. 6

3 Bail Bond Requisites 1. Must be made payable to The State of Texas 2. Must bind defendant (and any surety) that the defendant will appear before the criminal court to answer the accusation 3. Must state if the charge is a misdemeanor or felony 4. Must be signed by defendant principal (and any surety) with mailing address 5. Must contain a time and place, when and where the accused must appear, identify the criminal court before whom he is to appear and subsequent proceedings 6. Shall contain condition to pay necessary and reasonable costs of re arrest Art C.C.P Personal Bond Judge releases a defendant without surety or security to appear in court Art C.C.P. Based on only Defendant s promise to appear in court 8 1. Personal Bond 9

4 2. Bail Bond Written undertaking by the accused (may be a surety) giving security that the Defendant will appear in a court to answer a criminal accusation Art C.C.P.; Sec (1) O. C. May be cash May be promise 10 Bail Bond 11 Bail Bond 12

5 Bail Bond Corporate Bond 13 Bail Bond creates obligations 1. Defendant s Obligation will appear on criminal case If so, released from bond 2. Surety Obligation defendant will appear on criminal case If so, surety released from bond 3. Court s Obligation if defendant resolves criminal case, refund any cash funds deposited Art C.C.P. 14 How can Defendant Relieve Obligation? 1. Defendant appear in court and resolve criminal case: Deferred Art (a) C.C.P.; (a) O.C. Driving Safety Class Art (t) C.C.P.; (a) O.C. Plea of Guilty, finding of Guilt Art (5) C.C.P.; (b)o.c. Acquitted/Dismissed Art (5) C.C.P.; (b) O.C. 15

6 How Can Surety Relieve Obligation? 1. Have Defendant appear and resolve criminal case 2. Surety surrender principal to custody Art (a)(1) C.C.P. * Only before bond forfeiture done 3. Surety Affidavit that Defendant Principal incarcerated Art (a)(2) C.C.P. * Only before bond forfeiture done 4. Surety file Affidavit in court to surrender Defendant Principal Art 17.19(a) C.C.P. 16 Bail Bonds that may be Forfeited 1. Personal Bond Art C.C.P. 2. Bail Bond Art C.C.P. a. Cash b. Non Cash (Appearance, Surety, Attorney) 1. Bail bond company Art C.C.P. 2. Corporation Art C.C.P. 3. Attorney (a) O. C. An attorney may post a bond without being licensed if he represents defendant on the case in which he/she posts bond An attorney executing a bail bond or acting as surety is not relieved of bond s liability solely because the attorney is later replaced as attorney of record in the criminal case. Sec (c) O.C 17 18

7 What starts a bond forfeiture? 1. Defendant not appear and resolve criminal case 2. Judge signs Order finding Defendant not resolve criminal Judgment Nisi Triggers a new CIVIL case in same municipal court where criminal case is still pending 19 Bond Forfeiture = Separate CIVIL Case Municipal Court has jurisdiction in forfeiture & final judgment of bail bonds and personal bonds Sec (e) Gov. Code Rules of Civil Procedure apply on this new civil bond forfeiture case Clerk shall put this case on the civil Scire Facias docket Art C.C.P. *Different case number than criminal case Tex. R. Civ. P Forms Required to start Civil Forfeiture? 1. AffidavitofDefendant s Failure to Appear on criminalcase 2. Motion for Forfeiture of Bond Prosecutor State s action to forfeit Bond must be no later than 4 th anniversary of date principal fails toappear incourt on criminalcase Art C.C.P. 3. Judgment Nisi Judge Bond forfeiture be final if defendant principal fails toshow goodcause why he did not appear. Art C.C.P. Allows court torecover cash funds fromdefendant and any surety ** Capias (warrant) for defendant s arrest MUST BE ISSUED in criminal case Art C.C.P. JUDGE MAY REQUIRE CASH BOND Only time 21

8 What is in Civil Judgment Nisi file? 1. Copy of complaint of original criminal charge 2. Copy of bond posted in criminal case 3. Affidavit that Defendant not appear on scheduled date in criminal case 4. Original Judgment Nisi 22 Notice must be given Defendant(s) Clerk shall issue notice ( Citation ) to Defendant Principal and any Defendant Surety Art C.C.P. You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the court who issued this citation by 10:00 a.m. on the next Monday following the expiration of 20 days after you were served this citation and petition, a default judgment may be taken against you. Tex. R. Civ. P. 99(c) 23 Notice to Defendant Citation shall be served on Defendant If only Defendant posted cash bond Regular Mail deposit in mail to defendant s address on bond or lastknown address Art C.C.P. * If defendant doesn t show good cause why he failed to appear on criminal case, court may enter final default judgment forfeiting cash bond All of cash posted by defendant will be deposited into City s account No costs are mailed to the State 24

9 Notice to a Surety Defendant Citation shall be served on each Defendant Surety(s) Art C.C.P. 1. Personal Service Art C.C.P.; Tex. R. Civ. P. Rule 106(a)(1); Rule 103 Officer complete a Return that served Tex. R. Civ. P. Rule 21a, Rule 107 Officer complete a Return if not served Tex. R. Civ. P. Rule Registered or Certified Mail, return receipt requested signed by Surety only Tex. R. Civ. P. 106(a)(2) 3. Surety Defendant may sign Waiver of Citation Art (c) C.C.P.; Tex. R. Civ. P. 119 *It s unnecessary to notify Defendant Principal, unless he furnished address on the bond; if so, notice to defendant is by deposit in U.S. mail to address on bond or defendant s last known address Art C.C.P. 25 If Surety Defendant still not served Clerk tell prosecutor Prosecutor file Affidavit 1. Judge may order substitute service Tex. R. Civ. P. 106 Leave with one over 16 years of age Tex. R. Civ. P. Rule 106(b)(1) Any other manner reasonably effective to give notice Tex. R. Civ. P. Rule 106(b)(2) 2. Publication Tex. R. Civ. P. 109 *If Surety Attorney appears in court on other case, marshal may personally serve in open court 26 If Defendant and Surety served Clerk note date citation served Tex. R. Civ. P. 25, 26 Date of service starts time for Defendant or Surety to file Answer Deadline: By 10:00 a.m. on the Monday next following 20 days after citation served 27

10 Defendant(s) may file Answer 1. If no Answer filed by Defendant and Defendant Surety Clerk note on file Prosecutor may seek default judgment at trial Tex. R. Civ. P If Defendant or Defendant Surety files Answer General Denial Tex. R. Civ. P. 83, Art C.C.P. Verified Pleading Deny execution of Bond Tex. R. Civ. P. 93 Bond invalid Art (a) C.C.P. Clerk set for trial notice to all Defendants Tex R. Civ. P. 246 Clerk set on Bond Forfeiture docket before judge Set when prosecutor present (court reporter, if any) At least 10 days after return of service If contested, 45 days notice Tex R. Civ. P Defendant Surety May request Remittitur Surety may request after forfeiture of bond Judgment Nisi before final judgment C.C.P Judge shall grant: Principal is released on new bail in criminal case, C.C.P (a) or Criminal case dismissed Judge may grant: If find good cause C.C.P (b) 29 Bond Forfeiture Jury Trial? Defendant must request in writing Must pay jury fee at least 30 days before trial Tex. R. Civ. P. 216 If fee paid, Clerk summons prospective jurors No fee = no jury trial Amount? $5.00 County Court Tex. R. Civ. P. 216(b) Defendant may file Oath of Inability to Pay Jury Fee Tex. R. Civ. P

11 Prepare for Bond Forfeiture Trial Clerk insure civil case includes all paperwork Affidavit that Defendant not appear on criminal case If Jury fee paid, clerk summons jury panel Put the criminal case with civil forfeiture case Prosecutor review case file If jury, prepare Charge Check arrest record of Defendant Principal 31 Bond Forfeiture Trial Prosecutor has the burden to present evidence: Criminal complaint copy Valid bond copy Affidavit of Failure to Appear on criminal case Judgment Nisi original Service of citation original signed receipt or officer s return Defendant in military Service Members Civil Relief Act Affidavit original *Judge can take judicial notice of pleadings in file 32 Forfeiture Trial (No one appears) Burden of proof on State Preponderance of evidence Defendant Principal properly served in this civil case? All sureties properly served in this civil case? Defendant not answer in this civil case? Principal not in military service SMCRA affidavit? Judge may sign Default Judgment of Liability Tex. R. Civ. P. 239 Full Amount of Bond to Municipality! No costs to the State! State prepare Notice of last known address Tex. R. Civ. P. 239a Clerk mails Notice of final Default Judgment to Defendant and Surety 33

12 Forfeiture Trial Defendant appears Defendant Principal may present defenses that exonerate from liability Art (a) 1 5 C.C.P. and no other Defendant Surety may show cause why forfeiture should not be made final Bond not a valid, binding undertaking as to the defendant Defendant not execute the bond or incapacitated, defect of parties Defendant deceased before forfeiture Defendant s sickness, uncontrollable circumstances not defendant s fault Failure to timely present indictment or information (2 years Mun. Ct) Defendant Incarcerated anywhere (at or within 6 months of fail to appear) Attempted Surrender of Principal Art (b) C.C.P. 34 Judgment of Forfeiture Judge Trial After evidence, judge must sign a Judgment Tex. R. Civ. P. 300 Exonerate defendant from liability on bond Art C.C.P. Set aside the bond forfeiture state not prove case Dismiss forfeiture defendant plead to criminal case & State Motion to Dismiss civil case Enter Agreed judgment prosecutor and defendant agree on amount Enter Default Judgment forfeiting bond Judgment may be Partial Against Defendant Principal, Defendant Surety or both Judgment is civil; defendant is liable for full amount of bond (not guilty ) No warrants are issued after final forfeiture of bond BUT: Warrant remains outstanding on criminal case Clerk report Forfeitures to OCA on Monthly Report Civil Cases Section 35 Judgment of Forfeiture Jury Trial After evidence, judge reads Charge Tex. R. Civ. P. 271 Argument of Prosecutor, Defense, and Prosecutor Jury reach Verdict and Judge read Verdict to Defendant 1. Defendant may pay forfeiture judgment and civil case closed 2. Defendant may appeal civil case judgment REMEMBER: *If civil forfeiture final still have criminal case in warrant status! *If criminal case plead still have civil Bond Forfeiture case 36

13 Possible Problems to watch for Attorney appears at forfeiture trial and files Motion to Surrender Defendant Attorney appears at forfeiture trial and says defendant in custody Defendant served, but surety not served Forfeiture done but criminal case not addressed warrants outstanding! Criminal case plead defendant relieved of liability on bond forfeiture case 37 After Final Forfeiture of Bond Trial Clerk holds civil case 30 days for a Motion for New Trial Tex. R. Civ. P. 320 If Motion for New Trial on Forfeiture filed, clerk set for hearing: Defendant may pay full civil judgment amount Defendant principal may appear and plead to criminal case Defendant not appear at hearing = forfeiture judgment finally final Judge may grant new trial on Bond Forfeiture civil case Surety may request equitable Special Bill of Review in 2 years Art C.C.P. 38 If No Motion for New Trial Forfeiture judgment is finally final (execution may issue) Art , Sec 3 C.C.P. Clerk shall notify the sheriff, chief of police, or peace officer of surety s default. Clerk shall notify surety by certified mail to last known address (if other than Class C) Art 17.11, Sec 2. C.C.P. ; Sec O.C. *Sheriff not to accept Bonds until paid Sec (b)O.C. Clerk shall deliver written notice to the sheriff, chief of police, or peace officer of corporation s default. Sec O.C. If Bail Board Bond county, and person not pay final forfeiture judgment, board shall suspend license or judgment shall be paid from security deposited by license holder O.C., O.C. * Corporation may not act as bail bond surety in county in which corporation is in default on 5 or more bail bonds (a) O.C. 39

14 If No Motion for New Trial If no payment, prosecutor may ask clerk to prepare Abstract of Judgment Clerk file Abstract of Judgment in County Deed records = lien on title If lien paid, be sure to file Release of Lien Clerk may prepare execution of judgment to county sheriff to execute *Certain property exempt Texas Property Code Sec ,

15 Licensed Bail Bond Surety List to be Posted LICENSED BAIL BOND SURETY LIST. (a) A board shall post in each court having criminal jurisdiction in the county, and shall provide to each local official responsible for the detention of prisoners in the county, a current list of each licensed bail bond surety and each licensed agent of a corporate surety in the county. (b) A list of each licensed bail bond surety and each licensed agent of a corporate surety in a county must be displayed at each location where prisoners are examined, processed, or confined Final Thoughts Bond forfeiture civil case is separate from criminal case Shall means shall not discretionary with court Recovery of payment may be difficult, but law requires forfeiture Many misunderstand unfamiliar Motions filed ask questions It s in the Book ask questions Try baby steps It s never too late to start Ignorance is not bliss knowledge is power! 45

16 Similarities Criminal Case Offense Probable Cause Affidavit Fail to Appear =capias warrant Complaint Criminal Docket Summons Entitled to judge/jury trial Can appeal Found Guilty Fine plus costs Report Conviction to State Civil Forfeiture Case Bond Fail To Appear Affidavit Judgment Nisi Scire Facias Civil Docket Citation Entitled to judge/jury trial Can appeal Found Liable civil judgment Some Reported to DPS TC Rosie Caballero Coppell Municipal Court