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Texas Bail Facts Newsletter

2004 Texas Appellate Court Opinions

Believing that the successful bail writer is the well-informed bail writer, International Fidelity and Allegheny Casualty make every effort to pass any useful information along to our agents.  Please bookmark this web page as it will be updated with current events in bail as well as legislation.

 

In 2004, Texas Appellate Courts handed down a number of opinions affecting bail.

 

A short recap of the holding in each of these cases is being provided here for your review and use.  We hope that knowing of these cases will assist you in your business.

 

Very truly yours,

Jerry W. Watson

Legal Counsel ACC & IFIC

 

 

TEXAS

 

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.

 

If you have any questions or comments, please feel free to contact Roger Moore at the Texas Bail Agents Service Office toll-free (800) 500-3727.

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