| 1 | 1 | | By: Patrick S.B. No. 876 |
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| 2 | 2 | | (Fletcher) |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to the discharge of a surety's liability on a bail bond in |
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| 8 | 8 | | a criminal case. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Article 17.09, Code of Criminal Procedure, is |
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| 11 | 11 | | amended to read as follows: |
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| 12 | 12 | | Art. 17.09. DURATION; ORIGINAL AND SUBSEQUENT PROCEEDINGS; |
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| 13 | 13 | | NEW BAIL |
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| 14 | 14 | | Sec. 1. Where a defendant, in the course of a criminal |
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| 15 | 15 | | action, gives bail before any court or person authorized by law to |
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| 16 | 16 | | take same, for the defendant's [his] personal appearance before a |
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| 17 | 17 | | court or magistrate, to answer a charge against the defendant |
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| 18 | 18 | | [him], the [said] bond shall be valid and binding on [upon] the |
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| 19 | 19 | | defendant and the defendant's [his] sureties, if any, thereon, for |
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| 20 | 20 | | the defendant's personal appearance before the court or magistrate |
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| 21 | 21 | | designated therein, as well as before any other court to which same |
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| 22 | 22 | | may be transferred, and for any and all subsequent proceedings |
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| 23 | 23 | | related [had relative] to the charge, and each [such] bond shall be |
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| 24 | 24 | | [so] conditioned as described by this section, except as otherwise |
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| 25 | 25 | | [hereinafter] provided by this article. |
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| 26 | 26 | | Sec. 2. When a defendant has once given bail for the |
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| 27 | 27 | | defendant's [his] appearance in answer to a criminal charge, the |
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| 28 | 28 | | defendant may [he shall] not be required to give another bond in the |
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| 29 | 29 | | course of the same criminal action except as otherwise [herein] |
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| 30 | 30 | | provided by this article. |
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| 31 | 31 | | Sec. 3. If [Provided that whenever], during the course of |
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| 32 | 32 | | the action, the judge or magistrate in whose court the [such] action |
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| 33 | 33 | | is pending finds that the bond is defective, excessive, or |
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| 34 | 34 | | insufficient in amount, or that the sureties, if any, are not |
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| 35 | 35 | | acceptable, or for any other good and sufficient cause, the [such] |
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| 36 | 36 | | judge or magistrate may, either in term-time or in vacation, order |
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| 37 | 37 | | the accused to be rearrested[,] and require the accused to give |
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| 38 | 38 | | another bond in an [such] amount that [as] the judge or magistrate |
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| 39 | 39 | | considers [may deem] proper. When the subsequent [such] bond is |
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| 40 | 40 | | [so] given and approved, the defendant shall be released from |
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| 41 | 41 | | custody. |
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| 42 | 42 | | Sec. 4. (a) The judge or magistrate in whose court the |
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| 43 | 43 | | criminal action is pending shall discharge a surety's liability on |
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| 44 | 44 | | a bond if the surety files with the judge or magistrate a motion for |
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| 45 | 45 | | discharge supported by an affidavit stating that: |
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| 46 | 46 | | (1) more than five years have elapsed since the date on |
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| 47 | 47 | | which the surety posted the bond; |
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| 48 | 48 | | (2) either the defendant has never been required to |
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| 49 | 49 | | appear in court in the criminal action or, during the three-year |
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| 50 | 50 | | period preceding the date of the motion for discharge or on that |
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| 51 | 51 | | date, there was no apparent activity in the criminal action and the |
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| 52 | 52 | | prosecutor did not file a written request to set a date for the |
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| 53 | 53 | | action; |
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| 54 | 54 | | (3) the bond was not forfeited before or on the date of |
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| 55 | 55 | | the motion for discharge; |
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| 56 | 56 | | (4) the surety no longer wishes to be a surety on the |
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| 57 | 57 | | bond; |
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| 58 | 58 | | (5) the surety has served the defendant's attorney, if |
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| 59 | 59 | | the defendant is represented by an attorney, with a copy of the |
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| 60 | 60 | | motion for discharge in the manner provided by Rule 21a, Texas Rules |
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| 61 | 61 | | of Civil Procedure; and |
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| 62 | 62 | | (6) the surety has provided a copy of the motion for |
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| 63 | 63 | | discharge to the prosecuting attorney. |
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| 64 | 64 | | (b) If the judge or magistrate discharges a surety's |
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| 65 | 65 | | liability under Subsection (a) and the indictment, information, or |
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| 66 | 66 | | complaint remains pending against the defendant, the judge or |
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| 67 | 67 | | magistrate may issue: |
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| 68 | 68 | | (1) a capias for the arrest of the defendant; or |
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| 69 | 69 | | (2) a summons for the defendant to appear before the |
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| 70 | 70 | | judge or magistrate for the purpose of giving another bond. |
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| 71 | 71 | | Sec. 5. Notwithstanding any other provision of this |
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| 72 | 72 | | article, the judge or magistrate in whose court a criminal action is |
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| 73 | 73 | | pending may not order the accused to be rearrested or require the |
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| 74 | 74 | | accused to give another bond in a higher amount because the accused: |
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| 75 | 75 | | (1) withdraws a waiver of the right to counsel; or |
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| 76 | 76 | | (2) requests the assistance of counsel, appointed or |
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| 77 | 77 | | retained. |
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| 78 | 78 | | SECTION 2. The change in law made by this Act applies only |
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| 79 | 79 | | to a bail bond that is executed on or after the effective date of |
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| 80 | 80 | | this Act. A bail bond that is executed before the effective date of |
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| 81 | 81 | | this Act is governed by the law in effect on the date the bail bond |
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| 82 | 82 | | was executed, and the former law is continued in effect for that |
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| 83 | 83 | | purpose. |
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| 84 | 84 | | SECTION 3. This Act takes effect September 1, 2013. |
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