One of my duties w/the Co. Atty's office is handling the bond forfeiture docket. Being fairly new to it, I am trying to learn it as I go. (Let me apologize now if this should be in the Civil topic - I posted it there to).

Got hit w/this, CCP 17.19(b)(1), the other day by a bond co. They had tried to get off the bond prior to the Defendant's court date and the judge refused. The Def. FTA'ed and we attempted to collect.

Bond Co. used this section and asserted it as an affirmative defense. Judge agreed and I can't say that I can find a different way to read it. Just to make sure I understand:

IF the bond co. tries to get off a bond, for pretty much whatever reason they come up with, they are relieved of any liability, whether the court lets them off or denies it?

That being the case, how do you prevent this from being abused? Let me clarify in that I do not think that this bond co. was abusing the section. I truly believe that the bond co. thought the def. was going to FTA. I am just curious as to why a bond co. wouldn't use this for all of them (other than the fact that would probably be bad for business and/or if the county has a bond board, they would probably frown upon)?

Is this just a loop hole, or am i reading this all wrong? Is there something I am missing? Is there any rational reason for this?

Thanks,

Joel

If the surety's affidavit conforms to the requirements of subsection (a), then the court should not refuse to issue a warrant. Although the warrant may not be needed for the surety to use force to reapprehend his principal, it does enable the surety to enlist the help of others under subsection (e) and thus when the court refuses to provide such help it may be fair for the surety to claim discharge of his obligation. In issuing the warrant, the court is not discharging the surety, but merely (perhaps) helping to assure the principal reappears. Why a judge would refuse to issue a warrant and thereby discharge the bond makes little sense. Once the defense is in place, the surety has no incentive to hunt for the principal. But, perhaps in your case the court failed to find there was cause for the surety to surrender his principal. Especially if that finding was expressly made in response to the affidavit, then (b) provides no defense to liability.

[This message was edited by Martin Peterson on 03-15-05 at .]

Along that line, am I right in assuming that if the court allows the surrender and warrant is issued, would the Bond co. still be on the hook up until such time as the defendant is picked up?

In the case I mentioned, the Bond Co. simply stated that they had tried to call him and had not been able to reach the defendant. There wasn't alot of detail. Which brings up the final question: Does the reason have to be a good one? Statute doesn't really say it does. And if it's not, and that's why the court refuses, then they still have the defense?

Thanks in advance.

Issuing the warrant does not release the surety. Only an actual surrender or affidavit under 17.16 before forfeiture, or exoneration under 22.13, will accomplish that. The degree of discretion available in determining the "cause" finding under 17.19(b)- and whether such finding will prevent reliance by the surety on the defense- is indeed problematic. But see Garza, 919 S.W.2d at 789 and Maya, 126 S.W.3d at 583. That is why I question why a court would not be very lenient in ordering issuance of a warrant or capias, even though many sureties do not comply with subsection (a) in drafting their affidavits. But see Vega, 927 S.W.2d at 85.

Thanks for the reply. And just let me say that I have been a long time reader, even before I saw the light and crossed over to the Good team, and rarely have I posted. But, I always, always enjoy your input. Have learned a ton from you and Mr. Bradley. Thanks again.
Jh