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a final judgment in a bond forfeiture proceeding under the Texas Rules of Civil Procedure unless the final judgment is superseded by the posting of a supersedeas bond, rather than the trial court enters its final judgment on the scire facias until such judgment is satisfied or set aside.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.