David Finney suggests the judgment nisi should not be prosecuted until the period for re-appearance exoneration has passed because the surety will be entitled to a bill of review and remittutur. My question is why prosecute the action at all if the principal is back in custody (near by) within the time specified by 22.13 (a)(5). The costs incurred to secure the return of the principal may be small (or nil) and interest at 5% per annum doesn't seem to justify the effort. Basically you are fighting only over collection of court costs and you have no leverage to secure a settlement. While I guess 17.11 sec. 2 can help in collecting what are going to be relatively small judgments, I am beginning to doubt the efficacy of pursuing these cases. Anyone really enthused about being a court cost collector?
I agree the bail bond lobby has been very effective. However, in Potter County, we pursue the court cost cases for several reasons: 1. Even a little bit of money out of the bonding companys' pockets encourages them to be diligent about keeping up with their people. 2. We've collected a fair amount of money for our county even on court cost only cases. 3. Most judgments are agreed - if the defendant is back in custody within 270 days, everybody knows the amount of the judgment. If the defendant is still out after that, our policy is we want the full amount. Generally, bonding companies agree with that judgment, too. Since we are a bail bond board county, there is some incentive on the part of the bonding companies to reach an agreement to free up some of their collateral for other bonds. In short, we don't feel we spend more time than the money's worth.
The law works better in "board" counties, since the bondsman is actually required to "cover" outstanding bonds. But, where the amount of the judgment is automatically limited, there is no incentive for the bondsman in one of our counties to "agree" to anything so long as the 270 day exoneration applies. Yes, John, I suppose art. 22.01 must be enforced, but I sure have to write a lot of letters, make phone calls, and prepare judgments just to collect court costs (and a small amount of interest). It was more fun when I could actually require some or all of the bond to be paid.
I guess Safety National, PD-0413-07 (5/14/08) makes clear that you do not need to wait to pursue a final judgment in a bond forfeiture proceeding until after the 270 days have expired. But, is anyone changing how they actually handle that issue? Seems even less efficient to get a judgment awarding some or all of the penal amount, then have to deal with a special bill of review. Also, the proposal in Safety National that 22.17 protects the surety seems to ignore the language that "the court in its discretion may deny the bill . . .", since I assume the court would have no discretion if 22.13(a)(5) ends up applying. Thus, to me, the statute does effectively place restrictions on the court's ability to enter judgment (although it may indeed not be undue interference). Didn't 22.17 and local practices on forgiving amounts of bail always give bondsmen an incentive to continue to find their principal? Was the new condition on what the true amount of the bail bond is really necessary?
One final point. Just because the case at hand did not bring into play the "the state's hypothetical regarding Article 22.13 forcing the trial court to wait nine months" does not mean the statute might not become unconstitutional when the facts make the hypothetical "real," does it? Apparently the bail bond lobby has reached not only the Legislature, but has carried its influence over to the CCA. Will Judge Cochran's observations acknowledging the statute has "deficits" Concurrence have any effect?
