ACM C.S.H.B. 2340 75(R)BILL ANALYSIS


CRIMINAL JURISPRUDENCE
C.S.H.B. 2340
By: Talton
5-7-97
Committee Report (Substituted)

BACKGROUND 

In 1987, the Code of Criminal Procedure was amended to provide 
for a time within which bondsmen 
could return the principal on a forfeited appearance bond to the 
court and receive a remittitur of the 
forfeited bond.  The amendment was struck down as a violation of 
constitutional separation of 
powers between the legislative and judicial branches.  At this 
time, there is no provision for 
remittitur thus removing the incentive for bondsmen to return 
principals that have failed to appear.

PURPOSE

HB 2340, as proposed, would provide for a remittitur to be 
included as part of the contract between 
the surety, the defendant and the state.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly 
grant any additional rulemaking 
authority to a state officer, department, agency or institution.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 17.08, Code of Criminal Procedure, 
Requisites of a bail bond, by 
Subsection (5) is amended to provide that a bond other than a 
bond posted to secure the appearance 
of a defendant during the pendency of an appeal shall bind the 
defendant to appear before court until 
the defendant receives an order of deferred adjudication or is 
acquitted, sentenced, placed on 
community supervision, or dismissed from the charge.  Subsection 
(6) is added to provide that the 
principal and sureties are liable to the state and in the event 
that the principal fails to appear, 
provided that if the principal is presented to the court or 
magistrate, or is incarcerated in any 
jurisdiction, not later than eight months after the failure to 
appear, the sureties are liable to pay only 
the necessary and reasonable expenses  to rearrest the principal 
and the interest accrued on the bond 
amount.  Subsection (7) is amended to provide that the principal 
and sureties will pay any expenses 
incurred as a result of the rearrest of the principal on the 
charge specified by the bond. 

SECTION 2.  Amends Article 22.05, Code of Criminal Procedure, 
Citation as in civil actions, to 
provide that the citation shall require that the sureties answer 
within the time period provided by 
Article 22.11.

SECTION 3.  Amends Article 22.11, Code of Criminal Procedure, 
Sureties may answer, to 
provide that the sureties, if any, may answer in writing and show 
cause why the defendant did not 
appear and this answer is to be filed no later than the date that 
is eight months after the date the bond 
is forfeited or the date that is 30 days after the date the 
citation is served on the sureties.

SECTION 4.  Amends Article 22.15, Code of Criminal Procedure, 
Judgement final by default, 
to provide that when the sureties have been duly cited and and 
fail to answer within the time 
provided by Article 22.11 and the principal also fails to answer 
within the time limited for answering 
in other civil actions, the court shall enter judgement final by 
default.

SECTION 5.  Amends Article 22.16, Code of Criminal Procedure, 
Remittitur after forfeiture, as 
follows:

(1)  Subsection (a) is amended to provide that after forfeiture 
of the bond and before entry of final
 judgement, the court shall compensate the surety for the amount 
of the bond less the court and 
necessary county costs for the return of the principal on the 
charge specified in the bond and the 
interest accrued on the bond amount as provided by Subsection (e) 
of this article.

(2)  Subsection (c) is amended to provide that a final judgement 
may be entered against a bond no 
earlier than the answer date provided by Article 22.11 only on 
agreement of the parties.

(3)  Subsection (d) is amended to provide that if the defendant 
is returned to custody before the entry 
of a final judgement against the bond, on a showing of good 
cause, the court may remit to the surety 
all or part of the amount of the bond after deducting the costs 
of the court and expenses to the county 
for the return of the principal on the charge specified in the 
bond and the interest accrued on the bond 
amount as provided by Subsection (e) of this article.

(4)  Subsection (e) is amended to provide that interest accrues 
on the bond amount from the date of 
forfeiture to the date of final judgement in the same manner and 
at the same rate as provided for the 
accrual of prejudgement interest in civil cases.

SECTION 6.    Effective Date:  September 1, 1997.  The change in 
law made by this Act applies 
only to a bail bond executed on or after the effective date of 
this Act.

SECTION 7.  Emergency Clause. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute adds language to Article 17.08(5), Code of 
Criminal Procedure, to provide that a bond 
other than a bond posted to secure the appearance of the 
defendant during the pendency of an appeal 
shall bind the defendant to appear.  CSHB 2340 adds language to 
Subsection (6) to provide that the 
principal and sureties are liable for the principal amount of the 
bond in the event the principal fails 
to appear, provided that if the principal is presented to the 
court or magistrate, or is incarcerated not 
later than eight months after the failure to appear, the sureties 
are liable to pay only the costs of court, 
any expenses to rearrest the principal and the interest accrued 
on the bond amount.  The substitute 
provides that the principal and sureties shall pay all necessary 
expenses in rearresting the principal 
on the charge specified in the bond in the event that he fails to 
appear.  The substitute leaves in 
original language which provides that the amount of such expense 
shall be in addition to the 
principal amount specified in the bond.  The original bill 
provided that this amount may not exceed 
one-half of the principal amount of the bond.  Section 3 of the 
substitute provides that sureties may 
answer to show cause why the defendant did not appear not later 
than the date that is eight months 
after the date the bond is forfeited or the date that is 30 days 
after the date the citation is served on 
the sureties.  The original bill provided that the surety may 
answer not later than 12 months after the 
date the citation is served on the sureties.  CSHB 2340 provides 
that the court shall enter judgement 
by default when the sureties have been duly cited and fail to 
answer within the time provided by 
Article 22.11 and the principal also fails to answer within the 
time limited for answering in other 
civil actions.  The original bill provided no deadline for the 
sureties answer and set the deadline for 
the principal at the time period provided by Article 22.11.  The 
substitute leaves old language in to 
provide that after forfeiture of a bond and before entry of a 
final judgement, the court shall remit to 
the surety the interest  accrued on the bond.  Section 5 of the 
substitute, Subsection (c) provides that 
the court may enter a final judgement against a bond not earlier 
than the answer date provided by 
Article 22.11 only on agreement of the parties.  The original 
bill provided that a final judgement may 
be entered against a bond not earlier than 12 months after the 
citation date.  Subsection (d) of CSHB 
2340 provides that if the defendant is returned to custody before 
the entry of a final judgement 
against the bond, on a showing of good cause, the court may remit 
to the surety the interest accrued 
on the bond amount.  The original bill did not allow for this.  
Subsection (e) of Section 5 of the 
substitute provides that interest accrues on the bond amount from 
the date of forfeiture to the date 
of final judgement in the same manner and at the same rate as 
provided for the accrual of 
prejudgement interest in civil cases.  The original bill provided 
that interest does not accrue on the