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.