Defendant receives jail sentence on misdemeanor, files appeal bond and Notice of Appeal, and Motion for New Trial. Defendant's counsel sets Motion for New Trial for hearing, and it is heard and denied by trial court. Thirty days later, defendant files no record nor brief, and does not show up at the jail. CCP has no ready answer that I can find. Do I file judgment nisi, or just an affidavit saying the bond is deficient because the defendant never followed up on the appeal after the new trial was denied?

One problem in trying to forfeit the bond may be that it likely talks about appearing in accordance with the decision or mandate of the appellate court. I think the argument should be based on the language of 44.04(a) which implicitly states the right to release terminates once "the appeal" is no longer pending (or is determined). Possibly, however, since the appeal was "perfected" you will need to await whatever action the court of appeals takes. Presumably the clerk will have notified the court of the filing of the notice under 25.2(e) and the court will follow 32.1, 35.3(c) and 37.3(a)(2), (b) procedures.

Art. 44.04 is certainly in need of some revision to prevent this type of abuse and to clarify what should happen.

[This message was edited by Martin Peterson on 12-08-04 at .]

If he doesn't follow up on his appeal, the court of appeals will abate to see if he has abandoned the appeal. If he doesn't appear, you could file a motion to hold the bond insufficient. Ultimately, you may be able to have the appeal dismissed, and then have the defendant arrested and the bond discharged. You just have to stay on top of the case. We had some problems a few years ago where no one was following up.

We had our judge find the bond was insufficient since the time had run out after the hearing on the Motion for New Trial. The defendant is in jail now.

The trial court only looses jurisdiction when the record is filed. The trial court can act on its own without an abatement.