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