We have a defendant out on bond on a charge of agg. sexual assault of a child. Bond conditions require defendant not to have any contact with the victims. The defendant has been attempting to make contact with the victim. Can the defendant be arrested for the violation of the bond conditions without a hearing? Or do we need to have a hearing first to prove up the violation of the bond conditions, have the judge revoke the bond, and then have him arrested?

Usually, my judges prefer to have us file a motion and set a hearing in a few days to give the defendant notice. However, on a few rare occasions my judges have agreed in cases of domestic violence and/or when there is evidence that the defendant may attempt to flee or retaliate and they let us go ahead and have the defendant arrested prior to the hearing. Once he is arrested, I think it it a good idea to give him a hearing within 24-48 hours.

I will be happy to provide a sample motion and order for either scenario.

If you dont mind sending the motion and order on the second sceanrio, I would appreciate it. Email address is in my profile.

You have mail. Good luck!

I think that it is esential that you file a motion to avoid an ex parte communtication with the court. And I think it would be necessary for the judge to hear evidence before taking action.

I researched this issue a while back and found no definitive answer. I called around, and learned that in Bexar County, for example, if a DWI defendant's interlock provider reports that the defendant has refused to provide a breath sample after the car is started, or otherwise violates their rules, the judge is notified. The judge then has the option to do nothing or to issue a capias for the defendant's re-arrest. Nueces Co. I understand, also does not set such cases for a hearing before seeking a capias.

This makes sense. A defendant violating bond--whether its because he's fixing to blow town, he's intimidating witnesses, or he's driving while intoxicated--needs to be put back in custody, pronto. If he wants to contest the reason for the bond revocation, he can ask for a hearing after the fact.

Every person in jail awaiting trial or out on bond, awaiting trial is in a temporary condition. Eventually his case will be reached for trial, and his case resolved. Being under arrest does not involve any life-long stigma. And a defendant has a remedy if his case takes too long to go to trial: he can ask for a speedy trial, and will usually get one.

Every person out on bond has had his case looked at by either a magistrate or a grand jury, which then made the determination that P/C exists to believe that person committed the crime charged, and that he should be put in custody. The quid pro quo when a defendant makes bond is that he agrees to abide by a set of conditions until his case is resolved in court. If he fails to abide by the conditions of his release, he needs to go back to jail. It is illogical that the revocation of a bond requires more proof and a higher standard of due process than that required of the grand jury or the magistrate in the original decision to hold the defendant in custody. Since the decision to issue an arrest warrant is typically made ex parte, and can be based on hearsay and other evidence that does not meet the rules of evidence for a trial, it stands to reason that the magistrate can lift the bond and order the re-arrest of the defendant using the same kind of ex-parte evidence that got the defendant arrested in the first place.

As a practical matter, I don't see how big cities like San Antonio could do it any other way. If they had to have a contested hearing every time they get word that a defendant is violating the conditions of his bond, they'd either have to tie up their courts with nothing but bond revocation hearings, or just blow off the conditions of bond. In that case, "conditions of bond" would in truth be simply "bond suggestions."

[This message was edited by Terry Breen on 01-14-10 at .]

I would file a motion, too, but doesn't that trigger an arrest warrant being filed? I agree with Terry, the motion presents the allegations, and then the judge issues the warrant. What happens when your defendant knows he's now facing jail time, and probably significant jail time and absconds or just says, "no, I don't feel like going to court that day."?

42.12 section 21 says "at any time during supervision the judge may issue a warrant for the arrest..." and then later talks about the right to a hearing, and if the defendant has not bonded out, then it needs to be within 20 days.

Without an arrest and a bond, what teeth does the judge use to get the defendant to court? If defendant does not comply with the summons, there is not an FTA criminal case, or bond forfeiture, because he is already released from the bond.

If you have good, reliable information that he is violating conditions of his bond, why not notify his bondsman? Bondsman can file ATGOB (is it still called that?) and have warrant issued. Just wondering....

Article 16.16 seems to contemplate the issuance of a warrant upon filing of the motion.

Article 17.40, by contrast, seems to require a hearing prior to action on the violation of the condition.

sorry, my cites were probation revocation. disregard. is it Friday yet?