bond forfeiture and revocation

Bond Forfeiture in Texas | Bond Revocations and Forfeitures

Last month, the mother of the so-called “affluenza teen” found herself in front of a judge in the middle of a media firestorm for allegedly carrying a rifle at a gun show and sipping a beer in a bar. Normally in Texas, no one would bat an eye at this alleged behavior. Problem was, she was free on bond while awaiting trial on hindering apprehension of a felon and money laundering, stemming from allegations she fled to Mexico with her son.

She was under strict instructions by the judge to follow certain bond conditions. So when word got out that she was allegedly carrying a gun and drinking, prosecutors quickly filed a motion to “revoke bond.” That is, they wanted to have her put in jail until her trial.

After a hearing, the Judge denied their request and allowed her to remain free, but the case put the issue of bond revocations into the spotlight. Here’s a crash course on bond revocations in Texas, including ways to avoid them.

What is a bail bond?

When someone is arrested for a crime in Texas, a judge will set their bail and, under most circumstances, they will have the option to “post bond” or “bond out of jail.” Basically, a bail bond is a type of collateral – usually cash or surety — that the defendant gives the court as a promise to return at a later date and answer charges that have been brought. Because most people cannot afford to post the full amount of a bail, they hire a bail bondsman to post the money on their behalf. If the defendant fails to show up, the court seizes the money.

What many people on bond don’t realize, however, is that they don’t simply get to walk away from jail free and clear until their day in court. They are sometimes surprised to hear that the judge will give them a list of rules – called pre-trial bond conditions – which likely includes regularly reporting to the adult probation department. Failure to follow these rules could result in a one-way ticket to jail until the criminal case is resolved.

How are bond conditions set?

Under Article 17.40 of the Texas Code of Criminal Procedure, a judge can “impose any reasonable condition of bond related to the safety of a victim of the alleged offense or the safety of the community.” This gives the court a lot of leeway, but in actuality, most judges will take into consideration:

  • Seriousness of the offense
  • Defendant’s criminal history
  • Defendant’s physical and mental condition
  • Employment history and ties to the community
  • Whether or not he or she is a flight risk

What are common pre-trial bond violations?

For many individuals, pre-trial bond conditions can be very restrictive. However, it’s imperative that defendants follow them. One misstep can put you at risk of being jailed again. Below are some common bond violations in Texas:

  • Failing to abide by a curfew
  • Drinking alcohol
  • Using drugs
  • Possessing weapons
  • GPS violations
  • Failing to maintain employment
  • Hanging out with people of ill repute
  • Failing to check in with probation department
  • Failing to show up in court
  • Traveling out of the county or state without permission.

When is a bond held insufficient?

Article 17.09 of the Code of Criminal Procedure gives the trial court judge broad authority to hold a bond insufficient. It authorizes a trial court to manage a defendant’s bond and terms of release, including imposing a higher bond for any number of reasons after re-evaluating the circumstances or adequacy of the defendant’s bond. Practically speaking, merely holding a bond insufficient (as opposed to revoking the bond) gives the defense lawyer an opportunity to ask the judge for re-instatement before the bondsman is released as the surety. Sometimes, a proactive defense attorney is able to get a bond reinstated at the original amount, although it is common for any reinstated bond to be double the former bond amount.

What is a bond forfeiture?

A bond can be forfeited by order of the court revoking the bond. This may be based on the bondsman filing a motion to be released as the surety, a motion filed by the State, or on the court’s own motion.

If a defendant does not live up to their end of their agreement with their bondsman, perhaps by not staying in contact, the bondsman could “go off” their bond and withdraw their money. That is, the bondsman can ask the court to be released from responsibility of the defendant’s bond. They do this by filing an affidavit for release of surety (AFRS) with the court, which means a warrant will also be issued for the defendant when the court holds the bond insufficient. If this occurs, once the defendant is re-arrested, he or she will have to get a new bond reinstated and, if possible, find a new bondsman to post the bond.

A bond revocation can also be initiated by the prosecutor handling the defendant’s case. If the prosecutor learns that the defendant is possibly in violation of their bond conditions, they can file a motion to revoke the bond. At that point, the court will set a bond revocation hearing, where both sides will have an opportunity to present evidence.

The court may also receive information from a source, such as the court probation officer or pre-trial services, that leads the court to hold the bond insufficient on its own motion. Similarly, failing to show up in court will result in a bond revocation and forfeiture. Once a bond has been forfeited, a bond reinstatement may still be possible, but only if the bondsman is willing to stay on the bond and the judge is willing to reinstate the bond.

What happens at bond revocation hearing?

During a bond revocation hearing, both sides will have an opportunity to present evidence and make arguments before the judge. No jury is present. The prosecution will present evidence in an effort to show that the defendant violated bond conditions, while the defense will present evidence to show that the defendant has been compliant and the bond shouldn’t be revoked. If the judge finds by a preponderance of the evidence that the violation occurred, the judge can revoke the bond and order the defendant into custody until their case is disposed. This action also discharges the sureties (or bondsman) from future liability.

It’s important to point out that if the judge doesn’t revoke the bond, they could add additional conditions of release.

Abbreviations you may see relating to bonds

BOIS

Bond Insufficient – The bond is held insufficient and the person is taken into custody or a warrant is issued for the person. Unlike most warrants, this warrant will pop up in the county system and your attorney should be able to tell you if there is an active warrant. Very often warrants related to bond issues will say “Hold No Bond,” meaning no bond can be set until an attorney talks to the judge and convinces the judge to set a bond. Even in instances where the judge is willing to reinstate the bond, the bond may not be reinstated for several days.

BREI

Bond Reinstated – Occasionally a proactive defense attorney will be able to convince a judge to reinstate the bond. Sometimes the judge may not be willing to reinstate the bond for several days. On other occasions, the judge may reinstate the bond as soon as the defense attorneys asks. This depends largely on the nature of the violation that resulted in the bond being held insufficient and the person’s track record while on bond. The law allows the judge to hold a bond insufficient for ” any … good and sufficient cause”

BOFO

Bond Forfeiture – Once a bond is revoked, it is forfeited and a warrant is issued for the defendant. The surety (bondsman) will be released from their obligations once the defendant is in custody. Once the bond has been forfeited, the bondsman is considered to be 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 bond or the defendant is in custody. Pursuant to Code of Criminal Procedure 23.05, when a bond forfeiture has been declared and the defendant is arrested on a capias warrant, the court may then require that the only acceptable form of bond is cash bond.

What should you do if a motion to revoke bond has been filed?

First and foremost, seek legal help. Bond revocations in Texas are serious. It’s important to have a knowledgeable attorney who has handled these types of hearings before. You will want to find an attorney who can get to the courthouse quickly to talk to the judge and work proactively on your behalf. Understand that when a judge holds a bond insufficient or forfeits a bond, that judge is not impressed with the defendant’s actions while on bond. You need someone who can seek a favorable resolution even when everything is going against you.

 

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About the Author
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Benson Varghese

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Benson Varghese is the Managing Partner of Varghese Summersett PLLC. He is a state and federal practitioner who has handled thousands criminal cases and taken over 100 cases to trial by jury. Benson is frequently called upon to handle cases that require a high degree of knowledge in technology, scientific evidence, forensic evidence, as well as serious intoxication cases. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.