Flip Cards
Introduction
1. When a defendant fails to appear, a bond forfeiture lawsuit is filed to recover the bond from a defendant or the sureties, if any.
True.
2. Bond forfeitures are governed by the Rules of Criminal Procedure.
False (they are governed by both the Rules of Criminal Procedure and Rules of Civil Procedure).
Flip Cards
Part 1: Bail
3. Bail includes a bail bond or a personal bond and is the security given by the accused promising to appear in court at a later date or dates as required by the court.
True.
4. What is the purpose of bail?
Generally, the purpose of bail is to guarantee the person’s appearance in court.
5. Define bail bond.
A bail bond is a written undertaking entered into by the defendant and/or the defendant’s sureties for the appearance of the principal (defendant) before some court or magistrate to answer a criminal accusation.
6. When can a defendant present the court with a cash bond?
A defendant can file a cash bond, by depositing cash in the amount of the bond with the custodian of the court in which the prosecution is pending, in lieu of having sureties sign any time a bond is required of the defendant.
7. Who has the authority to release a defendant on a personal bond?
A magistrate or judge may release a defendant on a personal bond.
Flip Cards
Part 2: Surrender of Principal Defendant
8. When is a surety released from the responsibility on a bond?
A person executing a bail bond is relieved of liability on the bond on the date of disposition of the criminal case for which the bond is executed. However, a surety may be released from the responsibility on a bond if, before a forfeiture or judgment nisi (the process that initiates the bond forfeiture lawsuit) is issued, the surety surrenders the principal into custody or produces an affidavit that the defendant is in custody.
9. What must be stated in an affidavit filed by a surety requesting to surrender the principal?
The following must be stated in an affidavit filed by a surety requesting to surrender the principal: the person’s intention to surrender the principal; the court and cause number of the case; the name of the defendant; the offense with which the defendant is charged; the date of the bond; the cause or reason for the surrender; and that notice of the person’s intention to surrender the principal has been provided to the principal’s attorney as provided by Rules 21a of the Rules of Civil Procedure.
10. When an affidavit is filed with a court asking permission for the surrender of the principal, the court may refuse to issue the capias if no reasonable cause is shown.
True.
11. A capias issued for the surrender of the principal may be executed only by a peace officer.
False (may be executed by a peace officer, security officer, or licensed private investigator).
12. When a clerk receives an affidavit, the clerk should immediately notify the judge
True.
Flip Cards
Part 3: Surety Bond Forfeiture
13. When a defendant fails to appear, the court is not required to declare a forfeiture of the bail.
False (the statutes say “shall declare”).
14. When a defendant fails to answer docket call, the court is required to have the defendant’s name called at the courthouse door.
True.
15. When a bond forfeiture is declared, the court must issue a capias for the defendant’s arrest.
True.
16. When a bond forfeiture is declared and the defendant is rearrested, the court may require the defendant to present the court with a cash bond to obtain a new court date.
True.
17. What is a judgment nisi?
The judgment nisi initiates the bond forfeiture. It states that the State of Texas recover the amount of money in which the defendant and/or surety are bound (the amount of the bond) and shall be made final unless good cause be shown why the defendant did not appear.
18. After a bond forfeiture is declared, when is the judgment nisi signed?
The judgment nisi is signed within a reasonable amount of time. Usually, it is signed the same day that the forfeiture is declared, but some judges consider the Mailbox Rule and wait to see if the defendant is appearing by mail.
19. Define scire facias docket.
The scire facias docket is a separate civil docket for bond forfeiture cases.
20. How is the bond forfeiture case docketed?
The bond forfeiture case is docketed in the name of the State of Texas, as plaintiff, and the principal and his or her sureties, if any, as defendants.
21. Who is the defendant in a bond forfeiture case?
The defendant is the principal (defendant in the criminal case) and the surety, if any.
22. How long is the court required to keep and maintain the scire facias docket?
The scire facias docket is a permanent record.
23. List the information required on a scire facias docket.
The scire facias docket must include the number of the case, the names of the parties, the names of the attorneys, the nature of the action (bond forfeiture), the pleas (answer), the motions, and the ruling of the court.
24. The court must always give notice of the bond forfeiture to the principal defendant on a surety bond.
False (only required to if the principal defendant furnished his or her address on the bond).
25. The citation to the principal defendant who has posted a cash bond is required to be served as in civil cases.
True.
26. The notice to the defendant(s) must include a copy of the judgment nisi.
True.
27. The purpose of the citation is to notify the surety of the bond forfeiture lawsuit.
True.
28. When a citation is served on a surety, a copy of the judgment nisi and a copy of the bond must always be attached.
True.
29. When must the clerk issue the citation?
The clerk must issue a citation when requested to do so by the State (prosecutor).
30. List the requirements of the citation.
The requirements of the citation are: be styled “The State of Texas;” be signed by the clerk under seal of the court; contain name and location of the court; show date of filing of the judgment nisi; show date of issuance of citation; show file number; show names of parties (State, principal defendant, and/or defendant surety); be directed to the principal defendant and/or defendant surety; show the name and address of the State (prosecutor); and contain the address of the clerk.
31. What does the citation require the defendant to do?
The citation directs the defendant (surety) to file a written answer with the court.
32. When does the citation direct the defendant to answer?
A defendant must file a written answer on or before 10:00 a.m. on the next Monday after the expiration of 20 days after the date of service.
33. Define answer.
An answer is a formal written statement made by a defendant setting forth the grounds of his or her defense.
34. A citation issued in a bond forfeiture case is served in the same manner as civil citations.
True.
35. The sheriff, constable, city peace officers, and court clerks are the only persons who may serve a citation.
False (any person not less than 18 years of age who is authorized by law or court order may also serve the citation).
36. If a city police officer serves the citation, he or she may serve the citation only within the city limits.
False (can be anywhere in the county in which the city is located).
37. A clerk may serve a citation by mail.
True.
38. List the methods of serving a citation.
A citation may be served by registered or certified mail, addressee only return receipt requested; by personal service; by alternative service on someone 16 years or older at a residence or place of business; or by publication.
39. When a citation is mailed to a surety, what are the requirements for mailing a citation?
The citation must be sent registered or certified mail return receipt requested and delivery must be restricted to the surety or the surety’s agent for accepting service of process.
40. When the surety is a corporation, what should the clerk do before serving the citation?
The clerk should call the company and ask who the registered agent is for accepting service of the citation.
41. If the clerk serves the citation by mail, what must the clerk attach to the citation in the forfeiture file after the surety accepts service?
The green card (the return receipt).
42. After service of the citation by mail, what information on the return of the citation must be completed?
The clerk would need to complete the information on the return portion of the citation. This would include the date and time the return receipt was signed and returned to the court.
43. A citation that is refused is considered to be served.
False (must go to substitute alternative service).
44. Anyone can sign for a citation and it is considered to be served.
False (must be signed for by the defendant surety or defendant surety’s registered agent).
45. If the court is unable to serve the citation by mail, the clerk must notify the prosecutor of the failure to serve the citation.
True.
46. When a peace officer receives a citation, what information is he or she required to put on the citation?
When a peace officer receives a citation, the officer is required to note on the citation the day and hour he or she received the citation.
47. After a citation is served by a peace officer, what information must the officer endorse on or attach to the citation?
After a peace officer serves a citation, the officer must endorse the return, stating when the citation was served and noting the manner of service. The officer must then sign the return.
48. If the person serving the citation is not able to locate the defendant surety for personal service, what must that person do?
The return must state the diligence used to execute the citation, the reason for failing to execute it, and if the whereabouts of the defendant surety can be ascertained, that information should also be included on the return.
49. The State may request alternative service from the court by submitting an affidavit stating specific facts about the previous attempted service.
True.
50. If a court grants alternative service, the citation may be served on anyone who lives at the address specified in the affidavit.
False (person must be 16 years of age).
51. When a citation is served by a peace officer, the officer must note the time and date he or she received the citation.
True.
52. If alternative service is not successful, the clerk may ask the judge to serve the citation by publication.
False (the prosecutor requests service by publication).
53. The request for service by publication must be made under oath that the residence of the defendant surety is unknown and previous attempted service, although diligent, was not successful.
True.
54. When a court grants a motion for service by publication, the clerk must issue a new citation since the requirements for this citation are different from the one that is served by mail or one served on a defendant surety personally.
True.
55. A copy of the judgment nisi must be published along with the citation.
False (the judgment nisi is not published).
56. A citation that is published must be published once each week for four consecutive weeks.
True.
57. The first publication must be at least 28 days before the return day of the citation.
True.
58. When a citation is published, the clerk must endorse the citation and show how and when the citation was executed, specifying the dates of publication.
True.
59. Since the clerk endorses the citation showing how it was executed, the clerk does not have to attach a copy of the publication to the citation.
False (the clerk must attach a copy of the publication).
60. The defendant surety must file an answer with the court 80 days from the issuance of the citation when service is by publication.
False (must be filed by 10:00 on the Monday after 42 days from the issuance of the citation for publication).
61. If a defendant does not file an answer when a citation is published, the court is required to appoint an attorney to defend the suit in behalf of the defendant.
True.
62. Defendant surety may waive service of the citation by filing a sworn memorandum with the court.
True.
63. A defendant surety who waives service of the citation is not entitled to a copy of the judgment nisi.
False (the defendant surety is entitled to a copy of the judgment nisi).
64. Who may serve a citation to an absent or non-resident surety?
The citation may be served by any person competent to make an oath of the fact of service.
65. How can a defendant surety answer the bond forfeiture lawsuit?
The defendant surety can answer the bond forfeiture lawsuit by filing a written answer with the court, in a general denial or verified pleading.
66. What is the time limit for filing an answer with the court?
The answer must be filed by 10:00 a.m. on or before the Monday following 20 days after service of the citation.
67. If an answer is mailed by first class mail on or before the last day for filing the answer, how much additional time is allowed?
Ten additional days.
68. If an answer is received by mail, why must the clerk keep the envelope in which the answer was mailed?
The court needs the envelope to determine if the mailing of the answer was within the time deadline. The postmark will indicate the day that the answer was mailed.
69. What is a general denial?
A general denial is an answer that is not required to be denied under oath.
70. When must a defendant obtain permission of the court to file an amended answer?
If the amended answer is filed within seven days of the date of trial, the defendant must get permission of the judge to file the amendment.
71. What is a verified pleading?
A verified pleading is an answer that has been sworn to under oath.
72. What happens if a defendant surety files an answer before the court issues a citation?
The answer constitutes an appearance and dispenses with the necessity for issuance or service of the citation.
73. What happens when a defendant surety enters an appearance in open court before a citation is issued?
The citation is deemed to have been issued and served.
74. When may a court set bond forfeiture contested cases in which answers have been filed?
The court may set contested cases on written request of either the defense or the State or the court may set cases upon its own motion.
75. How many days notice must a court give a defendant surety of a trial date?
Forty-five days notice of a trial setting must be given to the defendant (surety).
76. If a case has been previously set for trial, how much notice is the defendant surety entitled to receive?
The court may reset the case to a later date on any reasonable notice to the parties or by agreement of the parties.
77. When may a case be postponed or continued?
A case may be postponed or continued by agreement of both the defendant surety and the State (prosecutor) or for good cause supported by an affidavit presented to the court after notice to the other party, or by operation of law.
78. When can non-contested cases be disposed?
Non-contested cases may be tried or disposed of any time, whether set or not, and may be set at any time for any other time.
79. How may a defendant surety request a jury trial?
The request must be made in writing and filed with the clerk.
80. If a defendant surety wants a jury trial, what is the time limit for filing a request with the court?
The request must be made within a reasonable time before the date set for trial on the non-jury docket, but not less than 30 days in advance.
81. What is the amount of the fee a defendant surety must pay when requesting a jury trial?
The defendant must pay a jury fee of either $5 or $10, whichever the judge determines is applicable.
82. If a defendant surety does not pay the jury fee what may the court do?
If the fee is not paid, the court may deny the jury trial.
83. Who summons prospective jurors in a bond forfeiture trial?
The clerk summons prospective jurors in a bond forfeiture trial.
84. After the State and defense deliver their lists of prospective jurors to the clerk, how does the clerk determine which persons shall sit on the jury?
The clerk shall call off the first six names on the lists that have not been erased by challenges for cause or peremptory challenges.
85. List the powers of the court after a judicial declaration of a bond forfeiture.
After a judicial declaration of a bond forfeiture, the court may exonerate the defendant surety from liability on the forfeiture; remit the amount of the forfeiture; set aside the forfeiture; or approve any proposed settlement that is agreed to by the State and defendant surety.
86. What may the court remit to the defendant surety before entry of a final judgment?
The court may remit to the surety all or part of the amount of the bond less court costs, re-arrest costs, and interest on the bond amount after forfeiture.
87. If a court remits the bond to the defendant surety, what may the court keep and not remit?
The costs and interest.
88. If the principal defendant died before the forfeiture of bond, the surety is exonerated from liability.
True.
89. If the principal defendant broke his leg and was in the hospital when he missed his court date for the criminal charge, the surety can send a letter to the court explaining the situation and be exonerated from liability.
False (the principal and/or surety must appear before trial).
90. If no complaint (charging instrument) has been filed against the principal defendant at the time of trial for the bond forfeiture, the court could find that as a cause for exoneration of liability.
True.
91. The court can consider any cause for exoneration.
False (the court may only consider the causes in Article 22.13 of the Code of Criminal Procedure and no others).
92. What can the State do when a defendant surety has been served, but fails to answer within the time limit?
The State can make a motion for a default judgment.
93. When can the court enter a default judgment?
Before the court can enter a default judgment, the citation with the officer’s return must have been on file in the clerk’s office for at least 10 days, exclusive of the date of filing and the date of judgment. Note: If there is more than one surety, each may have been served on different days and therefore may have different deadlines to answer. The clerk should make sure that the deadlines have passed for all defendants.
94. Who prepares the default judgment for the judge’s signature?
The State (prosecutor).
95. What is the State required to do when a default judgment is taken?
The State (prosecutor) must certify in writing to the clerk the last known mailing address of the defendant surety against whom the default is taken.
96. What is the clerk required to do when the court signs a default judgment?
The clerk shall mail written notice of the default judgment to the defendant surety at the address shown in the certificate filed by the State (prosecutor). The clerk must also note on the scire facias docket the date that the notice was mailed.
97. What can the court do when a defendant files an answer but fails to appear at the trial?
The court may enter a default judgment against the defendant surety after the State has presented its evidence.
98. When a court decides to exonerate a defendant surety, what does the court do with the bond?
The court can dismiss with or without costs or dismiss and reinstate the bond.
99. When a court finds no sufficient cause for a defendant’s failure to appear in the criminal case, what does the court do with the bond forfeiture case?
The court makes the judgment on the bond forfeiture case final for the amount of the bond on which the defendant surety is bound.
100. What is a summary judgment?
A summary judgment is a motion filed after the adverse party has appeared or answered when a party to a lawsuit believes that there is no genuine issue of material fact and that the party is entitled to prevail as a matter of law.
101. Who usually files the motion for summary judgment?
In a bond forfeiture case, it is the State (prosecutor).
102. What is the time limit for filing a motion for summary judgment?
The party requesting the summary judgment must file and serve the motion and supporting affidavit at least 21 days before the time specified for hearing on the motion.
103. How long does the surety have to answer the motion for summary judgment?
The surety must answer or file opposing affidavits no later than seven days prior to the hearing.
104. When a motion for summary judgment is granted, what must the prosecutor do?
The prosecutor must prepare the judgment for the judge’s signature.
105. When a motion for summary judgment is denied, what does the clerk do?
If the judge denies the motion for summary judgment, the clerk sets the case on the scire facias trial docket.
106. What is an agreed judgment?
An agreed judgment is one in which the State recommends to the court to settle the bond forfeiture lawsuit for an amount less than the amount of the bond.
107. Who approves an agreed judgment?
The judge.
108. Who can enter into an agreed judgment?
The State (prosecutor), principal defendant, and defendant surety may enter into an agreed judgment without having a trial.
109. If a clerk makes a clerical mistake in the record of the judgment, how is the mistake to be corrected?
The correction must be made in open court by the judge.
110. When a mistake in the record of the judgment occurs, how is the notice to the interested parties served?
The notice can be served by: delivering a copy to the party to be served or the party’s duly authorized agent or attorney of record either in person or by agent or by courier receipted delivery; certified or registered mail to the party’s last known address; telephonic document transfer to the recipient’s current telecopier number; or such other manner as the court in its discretion may direct.
111. Who can file a motion for new trial?
The State (prosecutor) or the defendant surety may file a motion for new trial.
112. How is a motion for new trial made?
The motion must be in writing and signed by the party or his or her attorney.
113. What is the time deadline for filing a motion for new trial on a bond forfeiture case?
The motion must be filed prior to or within 30 days after the judgment.
114. Define special bill of review.
A special bill of review is a proceeding brought for the purpose of reversing a prior judgment of a forfeiture of a trial court after a judgment has become final.
115. How long does a surety have to file a special bill of review with the court?
The special bill of review must be filed within two years of the date of final judgment.
116. Is the court required to have an oral hearing after a special bill of review is filed?
No.
117. When is a surety deemed to be in default of a bond forfeiture judgment?
A surety is considered to be at default when a final judgment is signed. However, Section 1704.212 of the Occupations Code, provides that a surety is not considered to be in default until the 11th day after final judgment is entered.
118. Who is responsible for notifying the sheriff or chief of police of a default judgment?
The clerk.
119. When may a corporation not act as a bail bond surety in a county?
A corporation may not act as a bail bond surety in a county in which the corporation is in default on five or more bail bonds.
120. If a corporation appeals a final forfeiture of a bail bond, what must the corporation do to not be considered in default?
The corporation must deposit cash in the amount of the final judgment with the court in which the bond is executed.
121. Define execution.
Execution means carrying out some act or course of conduct to its completion. Execution upon a money judgment is the legal process of enforcing the judgment, usually by seizing and selling property of the debtor.
122. If there is more than one surety, how are the costs divided?
The costs are divided equally.
123. When is an execution to be returned?
The execution shall be returnable in 30, 60, or 90 days from the time a final judgment is signed. Usually, the prosecutor requests that the execution be returnable in 30 days.
124. What happens to an execution if a motion for new trial or an arrest of judgment is filed?
The clerk shall not issue the writ of execution upon the judgment until 30 days from the time the order overruling the motion is signed or from the time the motion is overruled by operation of law.
125. Who is responsible for making an application for execution?
The State (prosecutor) must make application for the execution.
126. If the State determines that the surety is about to remove out of the county personal property subject to execution, when may execution be issued?
The writ of execution may be issued at any time before the 30th day upon the filing of an affidavit by the State that the defendant is about to remove personal property subject to execution out of the county or is about to transfer or hide such personal property for the purpose of defrauding his or her creditors.
127. What is a writ?
A writ is a written order.
128. What are the requirements for a writ of execution?
The writ of execution requirements are: the style shall be “The State of Texas;” shall be directed to any sheriff or any constable with the State of the Texas;shall be signed by the clerk or judge and bear the seal of the court, if any; shall require the officer to execute it according to its terms; to make costs which have been adjudged against the defendant in execution and the further costs of executing the writ; shall describe the judgment, stating the court in which and the time when rendered, and the names of the parties in whose favor and against whom the judgment was rendered; a copy of the bill of costs taxed against the defendant in execution shall be attached to the writ; and shall require the officer to return it within 30, 60, or 90 days as directed by the State (prosecutor).
129. When an officer receives a writ of execution, what must the officer do?
The officer is required to endorse the writ with the exact hour and day when he or she received it.
130. When a writ of execution is issued upon a judgment for a sum of money, what must it specify?
The writ must specify the amount of money to be recovered and when it was issued and the rate of interest due.
131. What court costs are assessed in a bond forfeiture case?
Civil court costs.
132. What costs are included in the court costs?
Costs include necessary and reasonable expenses in rearresting the defendant and any other costs involved in the bond forfeiture cases such as any costs for service of process.
133. When can interest be assessed?
Interest is assessed and begins to run from the date the judgment nisi is signed by the court.
134. What is the rate of interest that can be assessed?
The interest begins to accrue on the face amount of the bond at six percent per annum from the date of the judgment nisi if no specified rate of interest is agreed upon by the defendant surety or the State (prosecutor).
Flip Cards
Part 4: Personal Bond Forfeiture
135. How is a bond forfeiture on a personal bond processed?
A bond forfeiture case involving a personal bond is processed in the same manner as a bond forfeiture case involving a surety.
Flip Cards
Part 5: Cash Bond Forfeiture
136. How is a bond forfeiture processed when a defendant files a cash bond that does not contain a plea of nolo contendere with the court?
The bond forfeiture is initiated in the same manner as a surety bond−with a judgment nisi. The judgment nisi is entered on the scire facias docket upon the defendant’s failure to appear. If the defendant has provided his or her address on the bond, the court is required to give the defendant notice by regular mail.
137. How does a court serve notice of this type of bond forfeiture on a defendant who has filed a cash bond containing no plea with the court?
Since this notice is sent by regular mail, the clerk should count three days from mailing the notice and then count the 20 days. The defendant’s answer would be due in the court on the Monday after the 20 days. The rest of the case is processed the same as a surety bond forfeiture.
138. What type of notice does the court use to notify the defendant of a cash bond forfeiture?
The notice is by citation, the same as for sureties. The court shall issue the citation and attach a copy of the judgment nisi and the forfeited bond to the notice.
139. When a defendant files a cash bond with the court and also gives a conditional plea of nolo contendere, the court can enter a finding of guilty and forfeit the bond for the fine and court costs.
True.
140. The court must send the defendant notice of this action to the defendant within 10 days from the time the judgment is entered.
False (must be sent immediately).
141. The notice must be sent certified mail.
False (can be sent by regular mail).
142. If a defendant has been in jail, the court must give the defendant credit for the jail-time.
True.
143. If a defendant applies for a new trial after receiving notice, the defendant must file a new bond with the court.
False (the original bond is reinstated).
144. If the defendant applies for a new trial within 10 days of the date of judgment and forfeiture, the court shall allow the defendant a new trial.
True.
145. When a bond is forfeited for the fine and costs, the clerk must remit the costs to the State Comptroller.
True.