Untitled Texas Attorney General Opinion ( 2000 )

OFPlCL OF THE ATTCIRNE” GENERAL. STATE OF TEXAS
JOHN CORNYN
August 3 I,2000
The Honorable Bill G. Carter Opinion No. JC-0277
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether a municipal court may allow criminal
P.O. Box 2910 defense attorneys to post bail bonds without showing
Austin, Texas 78768-2910 proof of their solvency under articles 17.11, 17.13
and 17.14 of the Code of Criminal Procedure, and
related questions (RQ-0219-JC)
Dear Representative Carter:
You ask several questions about the posting of bail bonds by attorneys in municipal court,
and particularly ask whether a municipal court may permit an attorney to act as a surety on a bail
bond for a client without providing evidence ofthe sufficiency ofthe security offered. We conclude
that a municipal court must require from an attorney, who acts as a surety on a bail bond for a client,
evidence of the sufficiency of the security offered, as provided by articles 17.11, 17.13 and 17.14
of the Code of Criminal Procedure. We also conclude that article 22.02 of the Code of Criminal
Procedure requires a municipal court to enter ajudgment nisi ifthe court determines that a defendant
has failed to make a court appearance as required by a bail bond. What constitutes a “reasonable
time” for a defendant to appear in court after his or her name is called before a judgment nisi must
be entered under article 22.02 will depend upon the facts of the particular case.
As background to your questions, you explain that, to your knowledge, “it is currently the
practice of a municipal court in at least one city to allow criminal defense attorneys to post bail
bonds ‘on their bar cards.“’ Request Letter.’ Attorneys are not required to show proof of their
solvency or to submit a list of non-exempt property subject to execution. In addition, judgments nisi
are not generated on bail bond forfeiture cases where the criminal defense attorneys are sureties. See
id. You also state that the municipal court in question is located in a county with a bail bond board.
See id. We answer your questions generally and not with respect to the practices of any specific
court or with respect to any specific factual situation.
First you ask whether a municipal court may allow criminal defense attorneys to post bail
bonds “on the strength oftheir bar card alone” without showing proof oftheir solvency under articles
17.11, 17.13 and 17.14 ofthe Code ofcriminal Procedure. See id. at 1. We note that an attorney’s
‘Letter from Honorable Bill G. Carter, Texas House of Representatives, to Honorable John Comyn, Texas
Attorney General, at 1 (Apr. 3, 2000) (on file with Opinion Committee) [hereinafter “Request Letter”].
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“bar card” is a membership card that the State Bar issues to attorneys licensed to practice law in
Texas who have paid the requisite membership fees. A bar card evidences an attorney’s membership
in the State Bar and nothing more. See TEX. STATE BAR R. art. III, 3 4, reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G app. (Vernon 1998). For the reasons explained below, we conclude that
a municipal court must require from an attorney who acts as a surety on a bail bond for a client
evidence of the sufficiency of the security offered, as provided by articles 17.11, 17.13 and 17.14
of the Code of Criminal Procedure.
Chapter 17 of the Code of Criminal Procedure governs the taking of bail bonds. That
chapter, as a general matter, gives a judge or magistrate discretion to release a defendant on a
personal bond. See TEX. CODECRIM. PROC. ANN. arts. 17.03, ,031, .032, .04 (Vernon Supp. 2000);
see also Tex. Att’y Gen. Op. No. K-0215 (2000) at 2 (“While the Code of Criminal Procedure does
not define the term ‘personal bond,’ the term ‘obviously means’ a defendant’s personal ‘promise to
pay a specified sum’ plus necessary and reasonable expenses incurred in locating and arresting him
or her, should the defendant ‘fail to appear as required.“‘). When a bail bond is taken, however,
article 17.11 provides that “[elvery court, judge, magistrate or other officer taking a bail bond shall
require evidence of the sufficiency of the security offered.” TEX. CODE GRIM. PROC. ANN. art.
17.11, § 1 (Vernon 1977). Articles 17.11, 17.13 and 17.14 set forth the criteria for determining
whether security is sufficient and means for testing the sufficiency of security. See id. arts. 17.11,
§ 1 (providing that one surety on a bail bond is sufficient “if it be made to appear that such surety
is worth at least double the amount of the sum for which he is bound, exclusive of all property
exempted by law from execution, and of debts or other encumbrances; and that he is a resident of
this state, and has property therein liable to execution worth the sum for which he is bound”); 17.13
(permitting a court or officer taking a bail bond to obtain an affidavit to test sufficiency of security);
17.14 (authorizing court or officer taking a bail bond to require further evidence of sufficiency of
security before approving bail bond).
The judge of a municipal court is a magistrate for purposes of the Code of Criminal
Procedure, see id. art. 2.09 (Vernon Supp. 2000). Thus, the judge of a municipal court, as a
magistrate, is authorized to take a bail bond under article 17.11. See id. art. 17.11, § 1 (Vernon
1977) (“[elvery court, judge, magistrate or other officer taking a bail bond”). Furthermore, the
provisions of chapter 17 of the Code of Criminal Procedure apply to the taking of bail bonds in
municipal court. See id. art. 17.38 (the rules of chapter 17 apply to “all such undertakings when
entered into in the course of a criminal action, in every case where authority is given to any
court, judge, magistrate, or other officer, to require bail of a person accused of an offense, or of a
witness in a criminal action”); see also Tex. Att’y Gen. Op. No. JM-461(1986) (noting that chapter
17 of the Code of Criminal Procedure controls taking of bail bonds in municipal court). Thus,
chapter 17 authorizes and applies to the taking of baiI bonds by a municipal court.
You note that the municipal court at issue is located in a county with a bail bond board. See
Request Letter, supra note 1, at 1. Chapter 1704 of the Occupations Code generally requires the
licensing of bondsmen in a county with a bail bond board. See TEX. Oct. CODE ANN. 5 1704.15 1
(Vernon 2000). The provisions of chapter 17 of the Code of Criminal Procedure governing the
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sufficiency of security do not apply to licensed bondsmen when they post bond pursuant to chapter
1704. See Font Y. Carr, 867 S.W.2d 873, 882 (Tex. App.-Houston [Ist Dist.] 1993, writ dism’d
w.0.j.) (“When a bondsman has met [the licensing] requirements [of former article 2372p-3 of the
Revised Civil Statutes, the statutory predecessor to chapter 1704 ofthe Occupations Code], a sheriff
may not question his solvency or refuse his bonds” under article 17.14 of the Code of Criminal
Procedure); Tex. Att’y Gen. Op. Nos. DM-483 (1998) at 5; JM-1057 (1989) at l-2 (sheriffmaynot
refuse to accept bond of licensed bondsman). Chapter 1704 is not relevant to your query, however,
because the licensing requirements of chapter 1704 do not apply to an attorney licensed to practice
law in this state who acts as a surety for a person he or she represents in a criminal case. See TEX.
Oct. CODE ANN. 5 1704.163(a) (Vernon 2000). An attorney who acts as a surety on a bail bond
pursuant to this exemption, or any person who acts as a surety on a bail bond in a jurisdiction not
subject to chapter 1704 of the Occupations Code, is subject to the security requirements set forth in
articles 17.11, 17.13, and 17.14 of the Code of Criminal Procedure. See Tex. Att’y Gen. Op. No.
DM-483 (1998) at 6 (“sufficiency ofthe security offered by an attorney exempt from licensure under
former article 2372p-3 [now chapter 1704 of the Texas Occupations Code] is governed by articles
17.11, 17.13, and 17.14 [ofthe Code of Criminal Procedure]“); see also Font, 867 S.W.2d at 882
(noting that article 17.14 of the Code of Criminal Procedure applies in counties where former article
2372~.3, now chapter 1704 of the Occupations Code, does not apply).
In sum, a municipal court taking a bail bond from an attorney who acts as a surety for a client
does so under the authority of article 17.11, and chapter 17 governs the sufficiency of the security
offered. Article 17.11 mandates a court, judge, or magistrate taking a bail bond to require evidence
of the sufficiency of the security offered. See TEX. CODE WM. PROC. ANN. art. 17.11, § 1 (Vernon
1977) (“[elvery court, judge, magistrate or other officer taking a bail bond shall require evidence of
the sufficiency of the security offered”) (emphasis added); see a&o TEX. GOV’T CODE ANN.
5 311.016(2) (Vernon 1998) (the term “‘shall’ imposes a duty ” “unless the context in which the
word appears necessarily requires a different construction or unless a different construction is
expressly provided by statute”). Furthermore, the security requirements of chapter 17 make no
exception for attorneys when they act as bondsmen and clearly apply to them when they act as
sureties for clients. See Tex. Att’y Gen. Op. No. DM-483 (1998) at 6. Therefore, in answer to your
question, a municipal court must require from an attorney who acts as a surety on a bail bond for a
client evidence of the sufficiency of the security offered, as provided by articles 17.11, 17. I3 and
17.14.
In a related question you ask, “Who is responsible for ascertaining the solvency of a surety
and rejecting a surety bond in a municipal court case based on insufficient proof of the surety’s
solvency?’ Request Letter, sup-a note 1, at 2. We assume you ask about a situation in which a
municipal court judge takes a bail bond. Again, article 17.11 vests the responsibility of requiring
evidence of the sufficiency of security offered for a bail bond with the “court, judge, magistrate or
other officer taking [the] bail bond.” TEX. CODE GRIM. PROC. ANN. art. 17.11, 5 1 (Vernon 1977).
Accordingly, the duty to ascertain the sufficiency of security offered by a surety in the situation you
describe lies with the judge of the municipal court taking the bail bond.
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You ask two questions about entry of judgments nisi in municipal court cases where an
attorney has acted as surety on a bail bond for a client. In this regard we note that section 29.003
of the Government Code expressly vests municipal courts with jurisdiction “in the forfeiture and
final judgment of all bail bonds and personal bonds taken in criminal cases of which the court has
jurisdiction.” TEX. GOV’T CODE ANN. 5 29.003(e) (Vernon Supp. 2000).
Chapter 22 of the Code of Criminal Procedure governs forfeiture of bail. When a defendant
bound by a bail bond to appear fails to appear in court “a judicial declaration of such forfeiture shall
be taken in the manner provided in Article 22.02 of this Code and entered by such court.” TEX.
CODE GRIM. PROC. ANN. art. 22.01 (Vernon 1989). Article 22.02 provides that a bail bond is
forfeited if, after the defendant’s name is called, “the defendant does not appear within a reasonable
time after such call is made.” Id. art. 22.02. If the defendant fails to appear, “judgment shall be
entered that the State of Texas recover of the defendant the amount of money in which he is bound,
and of his sureties, if any, the amount of money in which they are respectively bound.” Id. This
judgment must also “state that the same will be made final, unless good cause be shown why the
defendant did not appear.” Id. This judicial declaration of forfeiture is often referred to as a
“judgment nisi.” See State v. Sellers, 790 S.W.2d 316,320 (Tex. Crim. App. 1990); see also id. at
321 (“In effect a judgment nisi serves as documentary evidence of a fact the State must prove to
obtain a favorable judgment in a bond forfeiture case, viz: that the principal did in fact fail to appear
in accordance with his bond. Although a judicial declaration of forfeiture, a judgment nisi alone
authorizes no recovery by the State.“).
Once the trial court enters a judgment nisi, “a citation shall issue forthwith notifying the
sureties of the defendant, if any, that the bond has been forfeited, and requiring them to appear and
show cause why the judgment of forfeiture should not be made final.” TEX. CODE GRIM. PROC.
ANN. art. 22.03 (Vernon 1989). The court may proceed with a trial at which the defendant has the
opportunity to show sufficient cause for his or her failure to appear. See id. arts. 22.125, .14 (Vernon
1989 & Supp. 2000); see also id. art. 22.13 (Vernon 1989) (setting forth causes that will exonerate
defendant and his sureties from liability upon a forfeiture). A provision recently added to chapter
22 states that the court “may exonerate the defendant and his sureties, if any, from liability on the
forfeiture, remit the amount of the forfeiture, or set aside the forfeiture only as expressly provided
by this chapter.” Id. art. 22.125 (Vernon Supp. 2000). It also states that a court “may approve any
proposed settlement of the liability on the forfeiture that is agreed to by the state and by the
defendant or the defendant’s sureties, if any.” Id.
With respect to these judicial declarations of forfeiture, or judgments nisi, you ask if a
municipal judge may “waive the entry of ajudgment nisi in a case where a criminal defense attorney
is the surety on a bail bond and the defendant principal fails to appear” or, alternatively, if “the
judge [is] required to enter a judgment nisi in accordance with article 22.02 of the Texas Code of
Criminal Procedure.” Request Letter, supra note 1, at 1. We believe that, once a judge has found
that a defendant has failed to appear as required by a bail bond, chapter 22 does not give the judge
the discretion to refrain from entering a judgment nisi. Article 22.0 1 provides that when a defendant
“bound by bail to appear” fails to do so, “a judicial declaration of [] forfeiture shall be taken.” TEX.
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CODE GRIM. PROC. ANN. art. 22.01 (Vernon 1989) (emphasis added). In addition, section 22.02
provides that if a defendant does not appear within a reasonable time after his or her name is called,
“judgment shall be entered.” Id. art. 22.02 (emphasis added). These statutes use the word “shall,”
indicating amandatory duty to act; the context inwhich the word appears does not require a different
construction. See TEX. GOV’T CODE ANN. 5 311.016(2) (Vernon 1998) (the term “‘shall’ imposes
a duty” “unless the context in which the word appears necessarily requires a different
construction or unless a different construction is expressly provided by statute”); see also State ex
rel. Healey v. McMeans, 884 S.W.2d 772,774 (Tex. Crim. App. 1994) (An act is ministerial “when
the law clearly spells out the duty to be performed with such certainty that nothing is let? to the
exercise ofdiscretion orjudgment.“); State ex rel. Vance v. ROW, 57 1 S.W.2d 903,908 (Tex. Crim.
App. 1978) (holding that article 22.02 of the Code of Criminal Procedure “mandates the entry of
judgment in the full amount of the bond except where exoneration is proper under Art. 22.13 [] or
remittitur is discretionary under Art. 22.16 [I. On the basis of the facts and the applicable law, the
entry ofjudgment in this case was strictly ministerial in nature.“). Accordingly, we conclude that
once a municipal court determines that a defendant has failed to appear as required by a bail bond,
the court is required to enter a judgment nisi.
You also ask what constitutes a “reasonable time” under article 22.02. Again, under that
provision a judicial declaration of forfeiture shall be entered if, after his or her name is called, “the
defendant does not appear within a reasonable time.” TEX. CODE GRIM. PROC. ANN. art. 22.02
(Vernon 1989) (emphasis added). We believe that these words vest courts with some discretion to
determine whether or not a defendant has appeared as required by a bail bond, and that whether an
amount oftime is reasonable in any given case will depend upon the circumstances. See, e.g., State
v. Meador, 780 S.W.2d 836, 837 (Tex. App.-Houston [14th Dist.] 1989) (given that defendant
appeared three to five minutes late, but had timely made all previous court appearances in the cause
and in prior criminal cases, had made all court appearances in an unrelated case and returned on time
to begin serving his sentence, and had never forfeited a bond in a prior proceeding, appellate court
concluded that the defendant’s appearance, albeit late, was nonetheless within a reasonable time as
provided by the article 22.02, and concluded that the defendant’s tardiness did not entitle trial court
to revoke the bond). Because what is a “reasonable time” will depend upon the facts of the
individual case, a precise definition of “reasonable time” is beyond the purview of an attorney
general opinion.2
‘See, e.g., Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M-187 (1968) at 3 (“[Tlhis office is without authority to make fachzd
determinations.“); O-291 1 (1940) at 2 (“[T]his presents a fact question which we are unable to answer.“).
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SUMMARY
A municipal court must require from an attorney who acts as
a surety on a bail bond for a client evidence of the sufficiency of the
security offered, as provided by articles 17.11,17.13 and 17.14 of the
Code of Criminal Procedure. If a municipal court determines that a
defendant has failed to make an appearance as required by a bail
bond, article 22.02 of the Code of Criminal Procedure requires the
court to enter a judgment nisi. What constitutes a “reasonable time”
in which a defendant must appear in court before a judgment nisi
must be entered under article 22.02 will depend upon the facts of the
particular case.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee