HBA-NIK C.S.H.B. 1481 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1481
By: Hinojosa
Criminal Jurisprudence
4/30/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, bail for a criminal defendant or a defendant convicted and
awaiting appeal is designed to ensure that the defendant does not flee from
the criminal justice system.  There are provisions in the law, however,
that serve as a disincentive to search for and apprehend defendants who
have skipped bail.   

C.S.H.B. 1481 gives bail agents more time to seek and apprehend defendants
who have skipped bail and provides rules allowing a court to remit some or
all of a bond to sureties under certain circumstances. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate 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, as follows:

Art. 17.08. REQUISITES OF A BAIL BOND. Adds text to the provision that a
bail bond must, rather than shall be sufficient if it, contain  the
requisites that requires the bond to also bind the defendant to appear
before any court or magistrate before whom the cause may thereafter be
pending at any time when, and place where, his presence may be required,
but prohibits the sureties from being bound after such time as the
defendant receives an order of deferred adjudication or is acquitted,
sentenced, placed on community supervision, or dismissed from the charge.
Requires the bond to be conditioned that the principal and sureties, if
any, are liable to this state for the principal amount of the bond in the
event the principal fails to appear at the time and place required by a
court or magistrate, provided that if the principal is presented to the
court or magistrate, or is incarcerated in any jurisdiction, not later than
nine months after the failure to appear, the sureties are liable to pay
only the necessary and reasonable expenses to rearrest the principal as
provided by Subdivision 7, interest as provided in this Article, and costs
of court. 

SECTION 2. Amends Section 2, Article 17.11, Code of Criminal Procedure, to
require a surety to be deemed in default from the time execution may be
issued on a final judgment in a bond forfeiture proceeding under the Texas
Rules of Civil Procedure unless the final judgment is superseded by the
posting of a supersedeas bond, rather than the trial court enters its final
judgment on the scire facias until such judgment is satisfied or set aside. 

SECTION 3. Amends Article 22.05, Code of Criminal Procedure, as follows:

Art. 22.05. New title: CITATION. Requires the surety to designate in
writing with the clerk of the court the name and address of the person
authorized by that surety to accept service of citation on bonds executed
in that county.  Requires the citation to be served by certified mail,
return receipt requested, to the person that the surety has designated.
Requires the clerk of the court, if the citation is undeliverable or
refused or if the surety fails to designate such a person, to be deemed to
have accepted service for the surety on the date when citation was  mailed.
Deletes text entitling sureties to notice for the length of time and in the
manner required in civil actions, and requiring the officer executing the
citation to return the same as in civil action.    

SECTION 4. Amends Article 22.10, Code of Criminal Procedure, to include
that except as otherwise provided by this chapter, the proceedings had
therein are required to be governed by the same rules governing other civil
suits.  

SECTION 5. Amends Article 22.11, Code of Criminal Procedure, to authorize
an answer to be filed not later than nine months after the date citation is
mailed to the sureties, rather than within the time limited for answering
in other civil actions. 

SECTION 6. Amends Article 22.125, Code of Criminal Procedure, to include
the authorization of the court to approve any proposed settlement of the
liability on the forfeiture agreed to by the state and the defendant or the
defendant's sureties, if any. 

SECTION 7. Amends Article 22.15, Code of Criminal Procedure, to require the
court to enter judgment final by default when the sureties have been duly
cited and fail to answer, and the principal also fails to answer within the
time period provided by Article 22.11, rather than limited for answering in
other civil actions. 

SECTION 8. Amends Article 22.16, Code of Criminal Procedure, to require the
court to remit to the surety the amount of the bond after deducting the
costs of court, any necessary and reasonable costs to the county for the
return of the principal, and the interest accrued on the bond amount as
provided by this section after forfeiture of a bond and before entry of
final judgment, rather than the expiration of the time limits set by this
section. Deletes text authorizing a final judgment to be entered against a
bond not earlier than a specified time.  Authorizes the court to remit to
the surety all or part of the amount of the bond after deducting the costs
of court for other good cause shown, rather than after the expiration of
the time limits set by Subsection (c) of this article. Makes conforming and
nonsubstantive changes. 

SECTION 9. Amends Chapter 22, Code of Criminal Procedure, by adding Article
22.18, as follows: 

Art. 22.18. LIMITATION. Provides that an action by the state to forfeit a
bail bond under this chapter must be brought not later than the fourth
anniversary of the date the principal failed to appear in court. 

SECTION 10. Amends Article 23.05, Code of Criminal Procedure, to authorize
a capias issued under this article to be executed by a peace officer or a
private investigator licensed under the Private Investigators and Private
Security Agencies Act,  V.T.C.S., (Article 4413(29bb). 

SECTION 11. Amends Subchapter C, V.T.C.S., Article 4413 (22bb), (Private
Investigators and Private Security Agencies Act), by adding Section 43A, as
follows: 

Sec. 43A. EXECUTION OF ARREST WARRANT ON BEHALF OF SURETY ON BAIL BOND;
OFFENSE. (a) Prohibits a private investigator executing an arrest warrant
on behalf of a surety on a bail bond from entering a residence without the
consent of the occupants; executing the warrant without written
authorization from the surety; wearing, carrying, or displaying any
uniform, badge, shield, or other insignia or emblem that implies that the
private investigator is an employee, officer, or agent of the federal
government, the state or a political subdivision of the state; or using
force. 

(b) Authorizes a private investigator to display identification that
indicates that the person is acting on behalf of a surety on a bail bond. 

(c) Requires a private investigator executing a capias on behalf of a
surety on a bail bond to immediately take the person arrested to, if the
arrest is made in the county in which the warrant was issued, the county
jail for that county if the offense is a Class A or Class B misdemeanor or
a felony, or the offense is a Class C misdemeanor and the warrant was
issued by a magistrate of that county.  Requires the private investigator
to immediately take the person arrested to, if the arrest is made in the
county in which the warrant was issued, to the municipal jail for the
appropriate municipality if the offense is a Class C misdemeanor and the
warrant was issued by a magistrate of the municipality. Requires the
private investigator to immediately take the person arrested to, if the
arrest is made in a county other than the county in which the warrant was
issued, the county jail for the county in which the arrest was made. 

(d) Provides that a person commits an offense if the person violates this
section.  Provides that an offense under this section is a state jail
felony. 

SECTION 12. Makes application of this Act prospective.

SECTION 13. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1481 does not address SECTIONS 1-3 which amended Articles 22.02,
22.03, and 22.04, Code of Criminal Procedure in the original bill, in
reference to the manner of taking a forfeiture, citation to sureties, and
the requisites of citation.  The substitute adds new SECTIONS 1-2.  For a
complete analysis of these sections, please see the Section-by-Section
Analysis in this document.  

C.S.H.B. 1481 redesignates SECTION 4 of the original bill to SECTION 3 of
the substitute. The substitute further amends Article 22.05 by changing the
article title from "Citation as in Civil Action" to "Citation." The
substitute also requires sureties to be entitled to notice by service of
citation as required in civil action, except that the citation requires the
party served to file a sworn answer not later than the first anniversary of
the date the citation is served.  The substitute adds new text requiring
the citation to be served by certified mail, return receipt requested, to
the person that the surety has designated.  Requires the clerk of the
court, if the citation is undeliverable or refused or if the surety fails
to designate such a person, to be deemed to have accepted service for the
surety on the date when citation was mailed. Deletes text entitling
sureties to notice for the length of time and in the manner required in
civil actions, and requiring the officer executing the citation to return
the same as in civil action.    

C.S.H.B. 1481 redesignates SECTION 5 (Article 22.10, Code of Criminal
Procedure) of the original to SECTION 4 of the substitute. The substitute
modifies the original bill by reinstating the phrase "or upon the civil"
which was deleted in the text of the original bill to require the court or
clerk to docket the case upon the scire facias or upon the civil docket
when a forfeiture has been declared upon a band.  The substitute also
rearranges the original bill for the purpose of clarification. 

C.S.H.B. 1481 redesignates SECTION 6 (Article 22.11, Code of Criminal
Procedure) of the original bill to SECTION 5 of the substitute. The
original bill authorized the sureties to file a sworn answer regarding why
the forfeiture should be exonerated or why the bond should be remitted in
addition to why the defendant did not appear, and provided that the answer
may filed no later than the first anniversary of the date citation is
served, rather than within the time limited for answering in other civil
actions.  The substitute authorizes an answer to be filed not later than
nine months after the date citation is mailed to the sureties, rather than
within the time limited for answering in other civil actions. 

C.S.H.B. 1481 redesignates SECTION 7 (Article 22.125, Code of Criminal
Procedure) of the original bill to SECTION 6 of the substitute. The
substitute removes the proposed amendment in the original bill which
authorized the court to proceed with the trial after a judicial declaration
of forfeiture is entered if an answer is timely filed, and required the
court to enter judgment by default under Article 22.15 (Judgment Final by
Default) if an answer is not timely filed. The substitute adds a new
authorization of the court to approve any proposed settlement of the
liability on the forfeiture agreed to by the state and the defendant or the
defendant's sureties, if any. 

C.S.H.B. 1481 does not address SECTION 8 of the original bill, which
amended Article 22.14, Code of Criminal Procedure to require the court to
enter a judgment exonerating the defendant and his  sureties, if any, from
liability on the forfeiture if, upon trial of the issues presented,
sufficient cause is shown why the defendant did not appear, and required
the court to enter a judgment for an amount determined under Article 22.16
(Remittitur after Forteiture) if, upon a trial of the issues presented,
sufficient cause is shown why the bond should be remitted. 

C.S.H.B. 1481 redesignates SECTION 9 (Article 22.16, Code of Criminal
Procedure) of the original bill to SECTION 8 of the substitute. The
substitute modifies the original bill as follows: 

(a)  Requires the court to stay the judgment of forfeiture on the receipt
of a sworn written motion filed with the court by the surety, rather than
require the court to remit to the surety the amount of the bond after
deducting the costs of court.  Makes conforming and nonsubstantive changes. 

(c)  Requires the court to determine whether the allegations asserted in a
motion filed under Subsection (a) are true.  Sets forth the actions to be
taken when the court determines that the allegations are either true or not
true.  Deletes the time periods in which a final judgment may be entered
against a bond. 

(d)  Requires the court, rather than authorizes the use of its discretion,
to remit to the surety the amount of the bond after deducting the variable
costs, if an event described by Subsection (a) occurs after the court
enters a final judgment of forfeiture and before the expiration of the
period during which an appeal may be filed.  Authorizes the court to impose
a penalty, not to exceed 10 percent of the amount of the bond except in
extraordinary circumstances if the court determines a penalty is
appropriate.  Sets forth the requirements for the court in determining
whether a penalty is appropriate and the amount of the penalty.  Makes
conforming change. 

For a complete analysis of SECTION 8 of the substitute, please see the
Section-by-Section Analysis of this document.  

C.S.H.B. 1481 does not address SECTION 10 of the original, which amended
Article 23.13, Code of Criminal Procedure to authorize a peace officer or a
private investigator or security officer licensed under the Private
Investigators and Private Security Agencies Act (Article 4413(29bb),
V.T.C.S.) to execute a capias issued under Article 23.05. (Capias after
forfeiture).   

The substitute amends Article 23.05, Code of Criminal Procedure, in new
SECTION 10 to add Subsection (b), to authorize a capias issued under this
article to be executed by a peace officer or a private investigator
licensed under the Private Investigators and Private Security Agencies Act,
V.T.C.S., (Article 4413(22bb).  

C.S.H.B. 1481 redesignates SECTION 11 (prospective clause) to SECTION 12 of
the substitute. 
For a complete analysis of SECTION 11 of the substitute, please see the
Section-by-Section Analysis of this document.  

C.S.H.B. 1481 does not address SECTION 12 (effective date) of the original,
thus the effective date is 90 days after adjournment.