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By: Hinojosa S.B. No. 1336
A BILL TO BE ENTITLED
AN ACT
relating to the liability of a criminal defendant and the
defendant's sureties on a personal bond or bail bond and to certain
procedures in connection with bond forfeiture.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 22.13, Code of Criminal Procedure, is
amended to read as follows:
Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The
following causes, and no other, will exonerate the defendant and
his sureties, if any, from liability upon the forfeiture taken:
1. That the bond is, for any cause, not a valid and
binding undertaking in law. If it be valid and binding as to the
principal, and one or more of his sureties, if any, they shall not
be exonerated from liability because of its being invalid and not
binding as to another surety or sureties, if any. If it be invalid
and not binding as to the principal, each of the sureties, if any,
shall be exonerated from liability. If it be valid and binding as
to the principal, but not so as to the sureties, if any, the
principal shall not be exonerated, but the sureties, if any, shall
be.
2. The death of the principal before the forfeiture
was taken.
3. The sickness of the principal or some
uncontrollable circumstance which prevented his appearance at
court, and it must, in every such case, be shown that his failure to
appear arose from no fault on his part. The causes mentioned in
this subdivision shall not be deemed sufficient to exonerate the
principal and his sureties, if any, unless such principal appear
before final judgment on the bond to answer the accusation against
him, or show sufficient cause for not so appearing.
4. Failure to present an indictment or information at
the first term of the court which may be held after the principal
has been admitted to bail, in case where the party was bound over
before indictment or information, and the prosecution has not been
continued by order of the court.
5. The incarceration of the principal in any
jurisdiction in the United States:
(A) in the case of a misdemeanor, at the time of
or not later than the 180th day after the date of the principal's
failure to appear in court; or
(B) in the case of a felony, at the time of or not
later than the 270th day after the date of the principal's failure
to appear in court.
(b) A surety exonerated under Subdivision 5, Subsection
(a), remains obligated to pay costs of court, any reasonable and
necessary costs incurred by a county to secure the return of the
principal, and interest accrued on the bond amount from the date of
the judgment nisi to the date of the principal's incarceration.
SECTION 2. Article 22.16, Code of Criminal Procedure, is
amended to read as follows:
Art. 22.16. REMITTITUR AFTER FORFEITURE. (a) After
forfeiture of a bond and before entry of a final judgment [the
expiration of the time limits set by Subsection (c) of this
article], the court shall, on written motion, remit to the surety
the amount of the bond, after deducting the costs of court and[,]
any reasonable and necessary costs to the county for the return of
the principal, and the interest accrued on the bond amount as
provided by Subsection (c) [(e) of this article] if[:
[(1) the principal is incarcerated in the county in
which the prosecution is pending;
[(2) the principal is incarcerated in another
jurisdiction and the incarceration is verified as provided by
Subsection (b) of this article;
[(3)] the principal is released on new bail in the case
or[;
[(4) the principal is deceased; or
[(5)] the case for which bond was given is dismissed.
(b) For other good cause shown [the purposes of Subsection
(a)(2) of this article, a surety may request confirmation of the
incarceration of his principal by written request to the law
enforcement agency of the county where prosecution is pending. A
law enforcement agency in this state that receives a request for
verification shall notify the court in which prosecution is pending
and the surety whether or not the principal is or has been
incarcerated in another jurisdiction and the date of the
incarceration.
[(c) A final judgment may be entered against a bond not
earlier than:
[(1) nine months after the date the forfeiture was
entered, if the offense for which the bond was given is a
misdemeanor; or
[(2) 18 months after the date the forfeiture was
entered, if the offense for which the bond was given is a felony.
[(d) After the expiration of the time limits set by
Subsection (c) of this article] and before the entry of a final
judgment against the bond, the court in its discretion may remit to
the surety all or part of the amount of the bond after deducting the
costs of court and[,] any reasonable and necessary costs to the
county for the return of the principal, and the interest accrued on
the bond amount as provided by Subsection (c) [(e) of this article].
(c) [(e)] For the purposes of this article, interest
accrues on the bond amount from the date of forfeiture in the same
manner and at the same rate as provided for the accrual of
prejudgment interest in civil cases.
SECTION 3. Subsection (a), Article 44.04, Code of Criminal
Procedure, is amended to read as follows:
(a) Pending the determination of any motion for new trial or
the appeal from any misdemeanor conviction, the defendant is
entitled to be released on reasonable bail[, and if a defendant
charged with a misdemeanor is on bail, is convicted, and appeals
that conviction, his bond is not discharged until his conviction is
final or in the case of an appeal to a court where a trial de novo is
held, he files an appeal bond as required by this code for appeal
from the conviction].
SECTION 4. Subsections (b) through (e), Article 17.19, Code
of Criminal Procedure, are amended to read as follows:
(b) If the court or magistrate finds that there is cause for
the surety to surrender his principal, the court shall issue a
warrant of arrest or capias for the principal. It is an affirmative
defense to any liability on the bond that:
(1) the court or magistrate refused to issue a warrant
of arrest or capias for the principal; and
(2) after the refusal to issue the warrant or capias
the principal failed to appear.
(c) If the court or magistrate before whom the prosecution
is pending is not available, the surety may deliver the affidavit to
any other magistrate in the county and that magistrate, on a finding
of cause for the surety to surrender his principal, shall issue a
warrant of arrest or capias for the principal.
(d) An arrest warrant or capias issued under this article
shall be issued to the sheriff of the county in which the case is
pending, and a copy of the warrant or capias shall be issued to the
surety or his agent.
(e) An arrest warrant or capias issued under this article
may be executed by a peace officer, a security officer, or a private
investigator licensed in this state.
SECTION 5. Article 23.05, Code of Criminal Procedure, is
amended to read as follows:
Art. 23.05. CAPIAS AFTER SURRENDER OR FORFEITURE. (a) If
[Where] a forfeiture of bail is declared or a surety surrenders a
defendant under Article 17.19, a capias shall be immediately issued
for the arrest of the defendant, and when arrested, in its
discretion, the court may require the defendant, in order to be
released from custody, to deposit with the custodian of funds of the
court in which the prosecution is pending current money of the
United States in the amount of the new bond as set by the court, in
lieu of a surety bond, unless a [the] forfeiture is taken and [has
been] set aside under the third subdivision of Article 22.13 of this
code, in which case the defendant and his sureties shall remain
bound under the same bail.
(b) A capias issued under this article may be executed by a
peace officer or by a private investigator licensed under Chapter
1702, Occupations Code.
(c) A capias under this article must be issued not later
than the 10th business day after the date of the court's issuance of
the order of forfeiture or order permitting surrender of the bond.
(d) The sheriff of each county shall enter a capias issued
under this article into a local warrant system not later than the
10th business day after the date of issuance of the capias by the
clerk of court.
SECTION 6. The change in law made by this Act applies only
to a bail bond executed on or after the effective date of this Act.
A bail bond executed before the effective date of this Act is
covered by the law in effect when the bail bond was executed, and
the former law is continued in effect for that purpose.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2003.