Untitled Texas Attorney General Opinion ( 1984 )

The Attornuy General of Texas
JIM MATTOX kcember 21. 1984
Attorney General
~upremo Court Buildlw Ronorable 8. Tati Santieateban Opinion No. J-M-261
P. 0. Box 1254a ChAirmAn
Austin.TX. 79711.2549 Senate Natural Re:wurcee Committee Re: Whether coats may be
51214752591 Texas State Senatt? retained from remitted bail
Telex 910iE74.1287
P. 0. Box 12068, Capitol Station bonda
Telecopier 5121475.0299
Austin, Texas 7i3:711
714 Jackson. SuI1e 7W Deer Senator Sant Leateban:
Dallas. TX. 75202JS08
21U742-9944
You first inquire whether a county treasurer has authority to
retain costs from a bond that is returned to a bondsman pursuant to
4924 Alberta Ave.. Suite 160 article 2372p-3, .section 13(c), V.T.C.S. Section 13(c) of article
El Paso. TX. 799052793 2372p-3 provides that
91545333494
[t]he surety on appearance bonds in criminal
,, Texas, Suite 700
c88e* ahall be absolved of liability upon
“ouston. TX. 770029111 disposition of the case, and disposition aa used
713l2235999 herein shall mean a dismissal. acquittal, or
fInding of guilty on the charges made the basis of
the bond.
806 Broadway. Suite 312
Lubbock. TX. 79401.3479
8081147.5239 ThUA, the queatlon before us relates to the recovery of costs in
criminal cases from remittitura to bondsmen where there is no
forfeiture of the bond. We conclude that, on the disposition of a
4309 N. Tenth. Suite B
criminal case. t’he surety who secures the defendant’s appearance is
McAllen. TX. 78501-1683
51216824547
absolved of liab:Mty and is entitled to A remittitur of the entire
amount of eu unfcrfeited bond.
2UO Main Plaza. Suite 400 A bail bond is strictly a statutory bond. See Sheppard v. Gill,
sa.n Antonlo.TX. 79%2797
58 S.W;2d 168 (Tes. Civ. App. - San Antonio 1933). aff’d, 90 S.W.2d
51212254191
563 (Tex. 1936). Chapters 17. 22. and 44 of the Codeof Criminal
Procedure provide! for the release on bond of a defendant pending trial
An Equal OpPOrtUnitYl or appeal of A conviction and for forfeiture of the bail of a
AffIrmsWe Actlon EmPlOY defendant vho fails to appear as specified by a ball bond. A
defendant may furnish the security for a bail bond either by the
deposit of cash or by the signatures of bondsmen who serve as sureties
on his bond. Article 2372p-3, V.T.C.S., regulates such bondsmen and
the business of wecuting bail bonds.
Sections l?(a) and 13(b) of article 2372p-3 provide for a
remittitur to a ‘bondsman of a portion of the total amount of the
p. 1161
Ronorable 8. TAti SAntiestebrm - PAW 2 (JM-261)
AppeArance bond in certein instances involving the forfeiture of the
bond. See also Code Crln. I?roc. Art. 22.16. Artfcle 17.08 of the
Code of Criminal Procedure, which lists the requisites of A bail bond,
provides In subdivision 6 that A bond ahAl be conditloned on the
defendant’s and aurety’a pa:r:.ng ~11 neceaaery and reAsOnAble expenses
incurred by sheriffs And other peace officers in rearresting A
defendant who ViolAtea the: provisions of his bond And that such
expense is in Addition to the priuCipA1 Amount specified in the bond.
We are not AwAre. however, elf 8tAtutory Authorization which empowers a
county treasurer to retain (:oata from the remfttitur of A bail bond on.
the disposition of A cAae where the defendant complies with the
obligation to Appear And no bond forfeiture occurs.
The domiUAnt conaideratlon in construing A statute is the intent
of the legislature. Calvert.
-- v. Texas Pipe Line Co., 517 S.W.Zd 777
(Tex. 1974). Generally, ,?Ile intent and meaning of A statute is
discerned primarily from thl? language of the statute. City of Sherman
v. Public Utility Cemmissi~n of TeXaS. 643 S.W.2d 681 (Tex. 1983).
Unambiguous statutory language will be enforced AS written. Ex parte
Roloff, 510 S.W.Zd 913 (Tex. 1974).
The clear and un~mbif;u,oua language of section 13(c) specifies
that the end of A bondsmAn’s liability on A bond occurs on the
disposition of the case t’y dismissal, Acquittsl, or A findlng of
guilty on the charges thal: are the bASi8 of the bond. The statute
provides that, At that poiot , the bondsmen is “Absolved” of liability.
“Absolve.” *a * legal term, means “to set free, or release. Aa from
obligcltion, debt, or reapontibility.” Black’s LAW Dictionary 9 (5th
ed. 1979). The 1AnguAge of section 13(c) does not suggest that the
legislature intended that the bondsmAn remain partially liable
following the disposition of the cAae And receive only A partial
remittitur on A bood due tcs e deduction for costs.
Further, statutory And case law specify that the purpose of bail
is to secure the Appearance of A defendant before the proper court to
Answer charges Against him. See Code Crim. Proc. Arts. 17.01, 17.02,
17.08; V.T.C.S. art. 237:lp-?;-$01, 2(S). The court of criminal
Appeals repeatedly h~a reiterated that the primary objective of An
Aupearance bond is to secure the oresence of the defendant in court at
hia trial or if his convictioo ia aubaeauentlv Affirmed. See Swinnea
v. State, 614 S.W.2d 453 (II’ex. Grim. Api. 1981); Rx partey
-81 (Tex. Grim. Ap11. 1980); Rx parted Sandoval. 5’
(TAX. Grim. App. 1979). The court of cr iminal appeals has further
stated that bail is not p:r:lmsrily a revenue measure intended to be a
substitution for A fine, but it is Intended to secure the trial of the
defendant rather than “to turn securities or those of his bondsman
into a penalty.” See Tramnell V. State.
--- 529. S.W.2d 528 (Tex. Crim.
App. 1975); HcCOnathy v. State, -- 528 S.W.Zd 594 (Tex. Crfm. App. 1975).
p. 1162
Honorable R. Tati Sentieate:bem - Page 3 (311-261)
Your second question 1,nqulrea vhether A trial court has authority
to tAx Costa Against A SurHy wheo the surety is absolved of liability
pursuant to article 2372p-:I!, section 13(c). Baaed oo the language of
the same statutes and cases; by which we anaver your first question, we
conclude that the legislature has not authorized the trial courts to
tex coats against A bond8mr.o. Absolved of further liability as provided
by aectioo 13(c).
Additionally, other provisions of the Code of Criminal Procedure
provide for the taxing o,E coats in criminal cases. Arts. 42.15,
42.16. thuaeraua provisions enumerete specific fees to be taxed
AgaiOSt or paid by A def~wisnt 00 COnViCtiOn. See Code Crim. Proc.
arts. 53.01. 53.04, 53.05, 53.06. 1018. 1061. 107mO79. 1083.
The legislature expressly provided that coats be taxed Against
the defendant on conviction. A surety IS not A party to the
def eodent ‘a criminal cha r]le . It is our opioioo that if the
legislature had intended that coats be taxed against the surety or be
withheld from the surety’s remittltur on disposal of the criminal
charge, the legislature world have expressly so provided. We conclude
that, when A surety is absolved of liability under article 2372p-3,
section 13(c), neither a county treasurer oor A trial court is
authorized to withhold costs from A remittitur on a bond or to tax the
coats against the surety, l,eapectlvely.
SUMMARY
A county treawrer is oot authorized to deduct
coats from A bonll returned to A bondsmen pursuant
to article 23721w3, section 13(c), V.T.C.S. A
trial court is ncmt authorized to tax coats against
a bondsmen wher, the bondsman la absolved of
liability pursuant to Article 2372p-3, section
13(c).
J?J/f.&+
Attorney GeOerAl of Texas
TOMGREEN
First AssistAnt Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
p. 1163
Honorable 8. Yetj Santieateban - Page 4 (34-261)
RICK GILPIN
ChAirmen. Opinion Cow&tee
Prepared by Nancy Sutton
ASSietAOt Attorney GenerAI
APPROVED:
OPINIONCOMMITfEE
Rick Gllpin, Chairmao
Jon Bible
Colio csrr
8uSAn GArriaon
Tony Gulllory
Jim Moellioger
Jennifer Riggs
NAnCy Sutton
Bruce Youngblood
p. 1164