4/20/2016 BOND FORFEITURE

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1 BOND FORFEITURE? 1

2 F-O-R-F-E-I-T-U-R-E i before e, except after c and f? 2

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7 So what are bond forfeiture cases NOT about? 7

8 8

9 What laws govern bond forfeitures? - Texas Code of Criminal Procedure Chapter 17 (Bail) - Texas Code of Criminal Procedure Chapter 22 (Forfeiture of bail) - Texas Rules of Civil Procedure - Texas Occupations Code Chapter

10 What is bail? Bail is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond. (CCP 17.01) What is bail? 3 kinds of bail: 1. cash bond 2. surety bond 3. personal bond WARNING! Hybrid bonds Differential bonds 10

11 Roadmap for a bond forfeiture case From the defendant s failure to appear to appeal What happens when the defendant fails to appear? - defendant s name is called at the courthouse door * - and if the defendant still fails to appear within a reasonable time - judgment nisi shall be entered Judgment what?!? Judgment nisi 11

12 Latin lesson #1 - Nisi is pronounced ni-si, ni-see, or nee-see - Latin word meaning unless - Judgment nisi is the court s way of saying The court will enter a judgment for the State unless the defendant can show why the court should not. What if there is an error on the judgment nisi? - CCP The bond, the judgment declaring the forfeiture [i.e., judgment nisi], the citation, and the return thereupon, shall not be set aside because of any defect of form; but such defect of form may, at any time, be amended under the direction of the court. - prepare a Motion to Amend Judgment Nisi and present it to the court correcting any errors Citation - Citation is the you have been sued notice given to defendants by the clerk s office. - YOU HAVE BEEN SUED. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and Judgment of Forfeiture (Judgment Nisi) a default judgment may be taken against you. 12

13 Who gets the citation? - Citation is sent to both the criminal defendant the sureties. It requires them to appear and show cause why the judgment nisi should not be made final. (CCP 22.03) - The citation packet should include the citation itself, a copy of the judgment nisi, a copy of the forfeited bond, a copy of any power of attorney attached to the forfeited bond. (CCP 22.04) Where to send the citation? - For the criminal defendant, citation goes to their last known address. It is considered served on the defendant once it is placed in the U.S. mail. No proof of service is necessary for the defendant! - For others receiving citation, you must follow the rules in TRCP 106. Mail the citation packet to the surety (or their agent) by registered or certified mail, return receipt requested. - Scire facias - Latin phrase meaning that you cause to know Latin lesson #2 - Contested bond forfeiture matters are scheduled on a scire facias docket to be resolved by the court. 13

14 When to docket a case? - After a bond has been forfeited and citation has been issued, the parties should answer according to the TRCP. - In felony cases and Class A & B misdemeanors, the parties have until the Monday next following 20 days after they ve received citation to file an answer to the lawsuit. The answer - Must be in writing and filed with the clerk s office. - It may be a general denial. (In some cases, it may have to go into specific defenses, but not normally.) - If no answer is filed, the defendant can be defaulted. - But we construe answers liberally. The scire facias docket - Scary faces docket - All answered bond forfeiture cases should be set for trial by the court on the scire facias docket. This includes personal, cash, and surety bonds. 14

15 The scire facias docket - The court should set all the cases for a bench trial (a trial to the court) unless the surety has filed a request for a jury trial and filed the required fee. - The defendants are entitled to at least 45 days notice before the trial. Defenses The defendant and surety have a limited number of defenses to allege: 1. The bond is not a valid undertaking under law. (CCP 22.13(a)(1)) 2. The defendant died before they failed to appear in court. (CCP 22.13(a)(2)) 3. Sickness, or some other uncontrollable circumstance, prevented the defendant to appear in court. (CCP 22.13(a)(3)) Defenses (continued) 4. The State failed to present an indictment or information in a timely manner. (CCP 22.13(a)(4)) 5. Defendant was incarcerated in any jurisdiction in the U.S. within 180 days (for a misdemeanor) or 270 days (for a felony). But a surety still remains obligated to pay return costs. 6. The statute of limitations has run. (CCP 22.18) 15

16 Post-judgment - After a final judgment is entered, it becomes enforceable in 30 days. - A Motion for New Trial can be filed within 30 days. - The MNT can be explicitly overruled by the court or overruled by operation of law on the 75 th day after the judgment was entered. Post-judgment (continued) - Surety may have a right to appeal a final judgment. - Surety can file a Special Bill of Review to revisit the final judgment. (CCP 22.17). - But the surety bears the burden of proof on the SBOR and has to overcome some difficult factors to prevail. REVOCATION vs. FORFEITURE 16

17 SURRENDERS? Michael N. Butera Harris County DA s Office

Table of Contents INTRODUCTION... 3

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