Untitled Texas Attorney General Opinion ( 1974 )

THE AT&-ORNEYGENERAL
OF ?rExAs
AUSTIN. T- 78711
January 10, 1974
The Honorable. Tom Hanm Opinion No. .H- ,208
Criminal District attorney
Jefferson County Re: The expenses of a : re~arrest
P. 0. Box 2553 of a defendant on a bond for-
,Beaumont, Texas 77704 feiture or affidavit of surety
to surrender.
Dear Mr. Hanna:
You have as’hed’ our’opinion onfifive questions ~relating to the .co’sts of
’ rea~rrests of,‘defendants‘on bond forfeitures and ‘affidavits of suretj’to
surrender. Your first question is:
“Is a county or county sheriff’s department entitled’
to reimbursement from bail bondsmen and/or attorneys,
as sureties, for costs incurred by such department in
the rearrest of a defendant within the state after’ a
bond forfeiture? ” :~
Article 17.08, Vernon’s Texas Code of Criminal Procedure, provides in
part:
” A bail bond shall be sufficient if it contains the
following requisites:
. . .
!'6. The bond shall’also be conditioned that the
principal and sureties, if any, will pay aDnecessary
and reasonable expenses incurred by any and.all
sheriffs or other peace officers in r,earresting the
principal~in the event he fails to appear before
the court or magistrate named in the bond at then
time stated therein. The amount of such expense
shall be in addition to the principal amount
specified in the bond. The failure of any bail
bond to contain the conditions specified in this
p. ,976
The Honorable Tom Hanna. page 2 (H-208)
paragraph shall in no manner affect the legality
of any such bond, but it is intended that the sheriff
or other peace.officer shall look to the defendant
and his sureties, if any. for expenses incurred by
him, and not to the State for any fees earned by
him in connection with the rearresting of an
accused who has violated the conditions of’his
bond. ”
It is clear that the sureties are liable for rearrest expenses when the
bond contain~s language so stating. The statute contemplates that some bonds
may not contain rearrest expense provisions. Although the absence of such
provisions will not invalidate a bond, we believe the clear import of the
statute imposes liability on the sureties and defendants for rearrest expenses
without regard to the presence of such language in the bond.
Your second question is:
“Is a county or county sheriff’s department entitled to
reimbursement from bail bondsmen and/or attorneys,
as sureties, for costs incurred by such department
in the rearrest of a defendant within the state on affi-
davits for release of surety?”
The procedure by which a surety is relieved of liability by affidavit is set
out in Vernon’s Texas Code of Criminal Procedure, Art. 17.19, which provides:
“Any surety, desiring to surrender his principal,
may upon making affidavit of such intention before the
court or magistrate before which the prosecution is
pending, obtain from such court or magistrate a
warrant of arrest for such principal, which shall be
executed as in other cases. ”
We believe your question is answered by the opinion of the Court of
Criminal Appeals in Wells v. State, 271 S.W. 918 (Tex. Crim. 1925) which
was a bond forfeiture case under a virtually identical statute. The Court
relied on both the majority and dissenting opinions in Whitner v. State,
41 S.W. 595 (Tex. Grim. 1897) and said:
p. 977
The Honorable Tom Hanna. page 3 (H-208)
“. . . Judge Henderson in a dissenting opinion
in said case, wherein he contended that the statute
contemplated that the sureties should arrest the
defendant and surrender him to the sheriff of the
county where the prosecution is pending, uses
the following language:
” ‘This statute is intended to confer a benefit on
the surety, but not to entail a loss or expense on the
state. The object of the law, it would appear, is to
give the surety authority, under the statute, to relieve
himself ,of liability under the bond: but, before he is
relieved, he must put the state in at least as good a
situation as it was before. ’
“We take it from the extracts of the case, supra,
that it is clearly shown by the majority of the court
that you do not have to follow literally the wording-
of thestatute in question, and from the dissenting
opinion of Judge Henderson that the surety has to -’
put the state in at least as good a position as it was
before, before the surety will be relieved.
“We have found no authority contrary to the doctrine
above-stated. and we believe same is the law and against
the contention of the appellant in this case. The con-
dition of bail bonds ,is to the effect that the defendant
or principal will remain inappearance before .said
court from day to day and from term to term until. -
discharged. Now, to take the view of the appellant in
this case, that all that is necessary to relieve a surety
~onhis bond is to make an affidavit, obtain a warrant of
arrest and turn it over to the sheriff; if that were true,
it strikes us it would be entirely useless.to require any
bond at all, because ,the defendant could go without the
jurisdiction of the cc&t, leave the country, and then
his sureties could make the affidavit, obtain a warrant
and. turn it over to .the sheriff, and no one be liable for
the appearance of the defendant before the court. If
this court should adopt such a construction of the above
pa 978
The Honorable Tom Hanna, page 4 (H-208)
statutes, it will be readily seen that there would be
very few guilty persons out on bail who would ever
appear before the courts of this country for trial. I’
(271 S. W. at 919-920).
See also Apodaca v. State, 493 S.W.2d 859 (Tex. Crim. 1973); Thompson
v. State, 335 S.W.2d 226 (Tex. Grim. 1960). Accordingly, we believe a surety
may be liable for the expenses of rearrest of the defendant, notwithstanding
the filing of an affidavit and issuance of a warrant under Article 17.19.
Your third question is:
“Where a county has paid, pursuant to the authority, of
Vernon’s Annotated Code of Criminal Procedure,
Article 51.10, Sec. 2, the actual and necessary tra-
veling expenses of an officer commissioned by the
Governor to rearrest and return a fugitive from
justice. upon whom a bond has been forfeited or
affidavit of surrender has been filed, is the county
entitled to reimbursement from the bondsmen and/or
attorneys, as sureties, for such expenses? ”
Article 51.10 provides:
“The officer or person so commissioned shall
receive as compensation the actual and necessary
traveling expenses upon.requisition of the Governor
to be allowed by.such Governor and to be paid out
of the State Treasury upon a certificate of the Governor
reciting the services rendered and the allowance therefor.
“Sec. 2. The commissioners court of the county where
an offense is committed may in its discretion, on the request
of the sheriff and the recommendation of the district attorney,
pay the actual and necessary traveling expenses of the officer
or person so commissioned out of any fund or funds not
otherwise pledged. ”
The primary obligation for reimbursing persons who bring fugitives
from justice back to this state, rests on the Governor, although in rare
instances the county may pay the actual and necessary expenses of the
p. 979
The Honorable Tom Hanna, page 5 (H-208)
officer. Attorney General Opinion V-587 (1948). If a county does reimburse
the officer who rearrests a defendant who has forfeited bond or whose sureties
have filed an affidavit of surrender and returns him to this State, we believe it
may look to the sureties for the expense incurred just as if the fugitive had been
found within the State.
Your fourth question is:
“In the event the bondsmen and/or attorneys are responsible
in any of the above instances, what expenses are reimburse-
able? ,Here, we are concerned with costs attributable to
mileage, officer’s salary, motel bills, meals and any other
expenses incurred by the sheriff’s department in the rearrest
of.a de fendant. ”
The expenses which are reimburseable are those which are “necessary and
reasonable”, Article 17.08, Vernon’s Texas Code of Criminal Procedure, Scott
v. State, 102 S.W.2d 434 (Tex. Crim. 1937). Whether a particular type of -
expenditure ins necessary and reasonable in a particular case requires a finding
of fact which we are neither permitted nor competent to make. Therefore, it is
impossible to give a categorical list of then expenses which are to be reimbursed.
Attorneys General Opinion V-186 (1947).
Your final question is:
“What course of action is available to a county in the event
the bondsmen and/or etfunqrs refuse or fail to provide
reimbursement for the costs involved in these rearrests? ”
The basic statute governing this question is Vernon’s Texas Code of Criminal
Procedure, Article 22.10. which provides:
“When a forfeiture has been declared upon a bond, the
court or clerk shall docket the case upon the scire facias
or upon the civil docket. in the name of the State of Texas,
as plaintiff, and the principal and his sureties, if any, as
defendants; and the proceedings had therein shall be governed
by the same rules governing other civil suits. I’
p. 980
The Honorable Tom Hanna, page 6 (H-208)
It is our opinion that a scire facias proceeding in a bond forfeiture case may
include any claim for reimbursement of expenses of rearrest. Attorney Genera 1
Opinion C-635 (1966). In cases where a forfeiture has not been taken (see
question 2). we believe the county not only has available the remedy of scire
facias but also may institute a civil proceeding to recover any expenses of
rearrest.
SUMMARY
A county is entitled to reimbursement from sureties
for the reasonable and necessary costs of rearrest after
a bond forfeitureor an affidavit of surrender under
Article 17.19, Vernon’s Texas Code of Criminal Procedure.
The expenses may be recovered’ in a scire facias proceeding
or in a separate civil action.
Very truly yours,
Attorney General of Texas
3
Opinion Committee
p. 981