We in Nueces County are currently reviewing our procedure for revoking pre-trial bond. When the defendant violates the conditions of bond, we currently get a warrant with no more than the supervision officer's representation concerning the violation and file a motion to revoke, which is not then served on the defendant until after he is arrested and already in custody. Our district judges are concerned about notice to the defendant's attorney and want us to review the procedure. Any suggestions?

Sounds similar to our protocol. Bond supervision officer files the violation. Judge declares bond insufficient. Capias issues. Defendant arrested. Clerk sets for first appearance. Defendant and counsel notified of setting. Hearing on violation.

What do your judges want defense counsel notified of? The warrant?

I think they want notification of the violation prior to the arrest. Our fear is that the attorney will then notify the client, who will drop off the radar and avoid being arrested.

Our office files a motion to revoke bond and the judges have their clerk send a setting notice to both the defendant and the defense attorney informing them of the hearing. The defendant does not get arrested unless the judge grants the State's motion. Though I think the idea of the capias issuing upon the filing of the motion is certainly proper, our judges seem to resist that idea.

The Legislature is moving in the other direction. There is a bill that would make violation of a bond condition in some instances an on-site arrestable act for an officer. No motion to revoke. No notice. The idea is that waiting until everyone comes to court is too late to preserve the State's right to protect the victim and the public and make sure the defendant appears.

Given that a defendant has no right to notice before a warrant issues, what is the argument regarding a right to notice before a warrant re-issues based on a reasonable belief that defendant has violated the bond?

The Leg also has already authorized denial of bail entirely for violation of a bond condition. There is at least one bill to expand that to protect victims of sexual offenses.

A defendant can certainly file a writ of habeas corpus or request a hearing on a decision to revoke a bond. But, notice before issuance of a capias is not required.

If you are filing a motion do you not have an obligation under the TRE to serve a copy on the opposing counsel or if without counsel, the defendant? If I do a Motion to Declare a Bond Insufficent (frequently on the sole allegations made by the bond supervision officer) I will fax a file marked copy to opposing counsel or mail one to the defendant if he's not represented. I also include the method in the Certificate of Service which is included in the Motion.

Abigail
Parker County

We prepare a show cause order and serve the defendant with notice of a hearing date to revoke the bond. At the hearing we put on testimony to prove the bond condition violation. The reason for the hearing is to allow the defendant an opportunity to contest the violation.

There is some interesting language in some cases out of Houston.
Smith v. State, 993 S.W.2d 408 (Tex.App.-Houston [14 Dist.],1999).

Bond Revocation

In Smith's first point of error, he asserts the bond revocation violated the Fourteenth Amendment because he had no prior notice of the potential revocation. We disagree. As to notice, in the original proceeding, the judge explained each of the conditions of the appeal bond and stated on the record, �[y]ou understand that should you violate any one of these conditions that your bond is subject to revocation and your replacement back in jail?� Smith replied, �Yes sir.� Additionally, the trial judge asked Smith if he had any questions and Smith answered �No sir.� As noted above, Smith made no objections to the bond conditions at the time the conditions were imposed. However, when his challenge to the conditions failed on direct appeal, Smith requested a habeas corpus hearing on the bond conditions. At the hearing, Smith presented one defense witness to challenge the bond conditions. The State responded by presenting four witnesses, each detailing Smith's violation of the bond conditions. Smith offered no objection to the State's evidence that he violated the conditions.

The Texas Code of Criminal Procedure expressly permits the court to revoke the bail on a finding by a preponderance of the evidence of a violation of a condition. See TEX.CODE CRIM. PROC. ANN. art. 44.04(c) (Vernon Supp.1999). Smith contests the revocation because, he claims, the hearing was not conducted for the purpose of revocation. However, the statute does not require the State or the trial court to give notice or a hearing, much less that the *412 hearing be entitled a �revocation hearing.� See Robinson v. State, 700 S.W.2d 710, 712 (Tex.App.-Houston [14th Dist.] 1985, no pet.). The statute does require presentation of evidence and that the revocation be based on that evidence.

In Robinson, this court noted that the Court of Criminal Appeals held that an appellant has a liberty interest in bail which requires the protection of the due process clause of the Fourteenth Amendment. See id. at 712-13 (citing Hunter v. State, No. 770-85 (Tex.Crim.App. October 23, 1985), dismissed, May 7, 1986). Therefore, due process requires the trial court to provide a defendant with reasonable notice that it intends to deny bail pending appeal and to allow a defendant a meaningful opportunity to be heard. See id. at 713. By extension, this court concluded that due process protections must be afforded an appellant when a trial court intends to revoke bail pending appeal. See id. As we noted earlier, however, Robinson is premised entirely on Hunter, an unpublished opinion that was subsequently dismissed. In at least one opinion since Hunter was withdrawn, the Court of Criminal appeals has lamented its demise. See Ex Parte Shockley, 717 S.W.2d 922, 923 (Tex.Crim.App.1986) (Miller, J., concurring). Because Hunter is not on the books as published authority, we question the continuing validity of Robinson due to the fact it relied on Hunter exclusively.

[5] Nevertheless, we still agree with the Robinson court that due process protections of notice and a reasonable opportunity to be heard attach to an appeal bond revocation based on an appellant's liberty interest. Here, Smith received notice of the bond conditions when imposed by the trial court and knew that his bond would be revoked if he violated his bond conditions. Further, Smith had notice that the State was seeking to revoke his bond and an opportunity to be heard at the hearing that ultimately resulted in his bond revocation. On rehearing, Smith contends he was entitled to formal notice of the State's intent to revoke his bond. We are not willing, however, to engraft additional procedural requirements, such as the necessity of a written motion to revoke, onto article 44.04(c). See TEX.CODE CRIM. PROC. ANN. art. 44.04(c) (Vernon Supp.1999). We hold that, under the facts of this case, Smith was not denied due process.