By Armbrister                                          S.B. No. 403
         76R3193 PEP-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the liability of a criminal defendant and the
 1-3     defendant's sureties on a personal bond or a bail bond and to
 1-4     certain procedures in connection with a bond forfeiture.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Article 22.02, Code of Criminal Procedure, is
 1-7     amended to read as follows:
 1-8           Art. 22.02.  MANNER OF TAKING A FORFEITURE.  Bail bonds and
 1-9     personal bonds are forfeited in the following manner: The name of
1-10     the defendant shall be called distinctly at the courtroom
1-11     [courthouse] door, and if the defendant does not appear within a
1-12     reasonable time after such call is made, judgment shall be entered
1-13     that the State of Texas recover of the defendant the amount of
1-14     money in which he is bound, and of his sureties, if any, the amount
1-15     of money in which they are respectively bound, which judgment shall
1-16     state that the same will be made final, unless good cause be shown
1-17     why the defendant did not appear, why the forfeiture should be
1-18     exonerated, or why the bond should be remitted.
1-19           SECTION 2.  Article 22.03, Code of Criminal Procedure, is
1-20     amended to read as follows:
1-21           Art. 22.03.  CITATION TO SURETIES. Upon entry of judgment, a
1-22     citation shall issue forthwith notifying the sureties of the
1-23     defendant, if any, that the bond has been forfeited, and requiring
1-24     them to appear, not later than the first anniversary of the date
 2-1     citation is served, and show cause why the judgment of forfeiture
 2-2     should not be made final, why the forfeiture should be exonerated,
 2-3     or why the bond should be remitted by sworn answer filed with the
 2-4     court.
 2-5           SECTION 3.  Article 22.04, Code of Criminal Procedure, is
 2-6     amended to read as follows:
 2-7           Art. 22.04.  REQUISITES OF CITATION.  A [citation shall be
 2-8     sufficient if it be in the form provided for citations in civil
 2-9     cases in such court; provided, however, that a] copy of the
2-10     judgment of forfeiture entered by the court shall be attached to
2-11     the citation, and the citation shall notify the parties cited to
2-12     appear and show cause why the judgment of forfeiture should not be
2-13     made final, why the forfeiture should be exonerated, or why the
2-14     bond should be remitted.
2-15           SECTION 4.  Article 22.05, Code of Criminal Procedure, is
2-16     amended to read as follows:
2-17           Art. 22.05.  CITATION AS IN CIVIL ACTIONS.  Sureties shall be
2-18     entitled to notice by service of citation [, the length of time
2-19     and] in the manner required in civil actions, except that the
2-20     citation shall require the party served to file a sworn answer not
2-21     later than the first anniversary of the date the citation is
2-22     served.  The [; and the] officer executing the citation shall
2-23     return the same as in civil actions.  It shall not be necessary to
2-24     give notice to the defendant unless he has furnished his address on
2-25     the bond, in which event notice to the defendant shall be deposited
2-26     in the United States mail directed to the defendant at the address
2-27     shown on the bond.
 3-1           SECTION 5.  Article 22.10, Code of Criminal Procedure, is
 3-2     amended to read as follows:
 3-3           Art. 22.10.  SCIRE FACIAS DOCKET.  When a forfeiture has been
 3-4     declared upon a bond, the court or clerk shall docket the case upon
 3-5     the scire facias [or upon the civil] docket, in the name of the
 3-6     State of Texas, as plaintiff, and the principal and his sureties,
 3-7     if any, as defendants; and the proceedings had therein shall be
 3-8     governed by the same rules governing [other] civil suits, except as
 3-9     otherwise provided by this chapter.
3-10           SECTION 6.  Article 22.11, Code of Criminal Procedure, is
3-11     amended to read as follows:
3-12           Art. 22.11.  SURETIES MAY ANSWER.  After the forfeiture of
3-13     the bond, if the sureties, if any, have been duly notified, the
3-14     sureties, if any, may file a sworn answer [in writing] and show
3-15     cause why the defendant did not appear, why the forfeiture should
3-16     be  exonerated, or why the bond should be remitted.  The [which]
3-17     answer may be filed not later than the first anniversary of the
3-18     date citation is  served [within the time limited for answering in
3-19     other civil actions].
3-20           SECTION 7.  Article 22.125, Code of Criminal Procedure, is
3-21     amended to read as follows:
3-22           Art. 22.125.  POWERS OF THE COURT. After a judicial
3-23     declaration of forfeiture is entered, if an answer is timely filed,
3-24     the court may proceed with the trial required by Article 22.14 of
3-25     this code.  If an answer is not timely filed, the court shall enter
3-26     judgment by default under Article 22.15 of this code.  The court
3-27     may  exonerate the defendant and his sureties, if any, from
 4-1     liability on the forfeiture, remit the amount of the forfeiture, or
 4-2     set aside the forfeiture only as expressly provided by this
 4-3     chapter.
 4-4           SECTION 8.  Article 22.14, Code of Criminal Procedure, is
 4-5     amended to read as follows:
 4-6           Art. 22.14.  JUDGMENT FINAL.  (a)  If [When], upon a trial of
 4-7     the issues presented, no sufficient cause is shown why the
 4-8     defendant  did not [for the failure of the principal to] appear,
 4-9     why the forfeiture should be exonerated, or why the  bond should be
4-10     remitted, the judgment shall be made final against the defendant
4-11     [him] and his sureties, if any, for the amount in which they are
4-12     respectively bound; and the same shall be collected by execution as
4-13     in civil actions.  Separate executions shall issue against each
4-14     party for the amount adjudged against him.  The costs shall be
4-15     equally divided between the sureties, if there be more than one.
4-16           (b)  If, upon a trial of the issues presented, sufficient
4-17     cause is shown why the defendant did not appear or why the
4-18     forfeiture should be exonerated, the court shall enter a judgment
4-19     exonerating the defendant and his sureties, if any, from liability
4-20     on the forfeiture.  If, upon a trial of the issues presented,
4-21     sufficient cause is shown why the bond should be remitted, the
4-22     court shall enter a judgment for an amount determined in accordance
4-23     with Article 22.16.
4-24           SECTION 9.  Articles 22.16(a), (c), and (d), Code of Criminal
4-25     Procedure, are amended to read as follows:
4-26           (a)  After forfeiture of a bond and before the expiration of
4-27     the period during which an appeal may be filed [time limits set by
 5-1     Subsection (c) of this article], the court shall stay the judgment
 5-2     of forfeiture[,] on receipt of a sworn written motion filed with
 5-3     the court by the surety alleging that[, remit to the surety the
 5-4     amount of the bond after deducting the costs of court, any
 5-5     reasonable costs to the county for the return of the principal, and
 5-6     the interest accrued on the bond amount as provided by Subsection
 5-7     (e) of this article if]:
 5-8                 (1)  the principal is incarcerated in the county in
 5-9     which the prosecution is pending;
5-10                 (2)  the principal is incarcerated in another
5-11     jurisdiction and the incarceration is verified as provided by
5-12     Subsection (b) of this article;
5-13                 (3)  the principal is released on new bail in the case;
5-14                 (4)  the principal is deceased; or
5-15                 (5)  the case for which bond was given is dismissed.
5-16           (c)  The court shall determine whether the allegations
5-17     asserted in a motion filed under Subsection (a) are true.  If the
5-18     court determines that the allegations are true, the court shall
5-19     remit to the surety the amount of the bond after deducting the
5-20     costs of court, any reasonable costs to the county for the return
5-21     of the principal, any penalty imposed under Subsection (d), and the
5-22     interest accrued on the bond amount as provided by Subsection (e).
5-23     If the court determines that the allegations are not true, the
5-24     court shall lift the stay of judgment and may assess a penalty
5-25     against the surety in an amount not to exceed the greater of $500
5-26     or 20 percent of the judgment [A final judgment may be entered
5-27     against a bond not  earlier than:]
 6-1                 [(1)  nine months after the date the forfeiture was
 6-2     entered, if the offense for which the bond was given is a
 6-3     misdemeanor; or]
 6-4                 [(2)  18 months after the date the forfeiture was
 6-5     entered, if the offense for which the bond was given is a felony].
 6-6           (d)  If an event described by Subsection (a)(1), (2), (3),
 6-7     (4), or (5) of this article occurs after the court enters a final
 6-8     judgment of forfeiture [After the  expiration of the time limits
 6-9     set by Subsection (c) of this article and before the entry of a
6-10     final judgment against the bond], the court shall [in its
6-11     discretion may] remit to the surety [all or part of] the amount of
6-12     the bond after deducting the costs of court, any reasonable costs
6-13     to the county for the return of the principal, and the interest
6-14     accrued on the bond amount as provided by Subsection (e) of this
6-15     article, except that the court may, on request by the state, also
6-16     impose a penalty if the court determines a penalty is appropriate.
6-17     In the absence of extraordinary circumstances stated in the court's
6-18     written order and based on the record before the court, a penalty
6-19     imposed under this subsection may not exceed 10 percent of the
6-20     amount of the bond.  In determining whether a penalty is
6-21     appropriate and the amount of the penalty, the court shall
6-22     consider:
6-23                 (1)  the amount of time and energy required of the
6-24     surety and its agents in bringing the principal to justice;
6-25                 (2)  the surety's efforts to assist law enforcement to
6-26     bring the principal to justice;
6-27                 (3)  the amount paid by the surety for costs of court,
 7-1     costs to the county for the return of the principal, and interest
 7-2     accrued on the bond;
 7-3                 (4)  the amount of money paid and expenses incurred by
 7-4     the surety in bringing the principal to justice; and
 7-5                 (5)  the surety's history with the court with respect
 7-6     to bringing a principal to justice.
 7-7           SECTION 10.  Article 23.13, Code of Criminal Procedure, is
 7-8     amended to read as follows:
 7-9           Art. 23.13.  WHO MAY ARREST UNDER CAPIAS.  (a)  A capias may
7-10     be executed by any peace officer.  In felony cases, the defendant
7-11     must be delivered immediately to the sheriff of the county where
7-12     the arrest is made together, with the writ under which he was
7-13     taken.
7-14           (b)  A capias issued under Article 23.05 may be executed by a
7-15     peace officer or a private investigator or security officer
7-16     licensed under the Private Investigators and Private Security
7-17     Agencies Act (Article 4413(29bb), Vernon's Texas Civil Statutes).
7-18           SECTION 11.  (a)  The changes in law made by Sections 1-9 of
7-19     this Act apply only to a personal bond or bail bond executed on or
7-20     after the effective date of the Act.  A personal bond or bail bond
7-21     executed before the effective date of this Act is covered by the
7-22     law in effect when the bond was executed, and the former law is
7-23     continued in effect for that purpose.
7-24           (b)  The change in law made by Section 10 of this Act applies
7-25     only to a capias issued on or after the effective date of this Act.
7-26     A capias issued before the effective date of this Act is covered by
7-27     the law in effect when the capias was issued, and the former law is
 8-1     continued in effect for that purpose.
 8-2           SECTION 12.  This Act takes effect September 1, 1999.
 8-3           SECTION 13.  The importance of this legislation and the
 8-4     crowded condition of the calendars in both houses create an
 8-5     emergency and an imperative public necessity that the
 8-6     constitutional rule requiring bills to be read on three several
 8-7     days in each house be suspended, and this rule is hereby suspended.