WHERE DID THE MONEY GO?
Bail and bond issues
In the end, we will not remember
the words of our enemies,
But the silence of our friends.
MARTIN LUTHER KING, JR.
In Texas, the right to bail is guaranteed by the Texas Constitution. However, the Constitution does not state a bail amount. In certain circumstances, bail can be denied altogether.
Article One, Section 11 of the Texas Constitution states “All prisoners shall be bailable by sufficient sureties.” However, this same section outlines certain circumstances where bail may be denied. These circumstances include capital cases when the proof is evident (the presumption of innocence does not apply here), violent or sexual offenses, felony offenses when the person has been convicted of two or more felony offenses arising from different transactions, accusations of a felony while out on bail for a prior felony for which there’s already an indictment, accusations of a felony involving a deadly weapon after being convicted of a prior felony. The presumption of guilt must be evident and great in all of these cases and there must be grounds that there are no conditions of release that would assure the safety of the community or any person.
The denial of bail is not usually an issue in DWI cases; however, if an accident is involved resulting in a death or a person charged with DWI is arrested for new DWI charges, bail may be denied. In these situations, bail is still possible but the attorney must be able to present a plan to the court that guarantees the safety of the community. Usually, it will involve treatment and monitoring by either an ankle monitor, SCRAM, ignition interlock device, and/or pre-trial release programs.
A police officer may arrest a person without a warrant for crimes committed in his presence. In the alternative, an officer may also arrest a person when there has been a warrant issued for the person’s arrest. If a warrant has been issued, the issuing judge sets a bond amount when signing the warrant. In DWI cases, the arrest is usually the result of the officer witnessing the alleged crime occurring.
In these cases, a judge is usually not immediately available to set bond. As such, most counties have a set bond schedule they use. Thus, bond is set according to what charges the police officer thinks is appropriate. The usual amount for a misdemeanor District Court DWI is $1000. If you have more than one charge, there will be additional bond required for each charge.
In the county courts, the amount of the bond is generally the amount of the maximum fine and court costs allowed under the law. Each charge against a person will have a separate bond amount. The bond may be posted in cash or by retaining a bondsman to post the bond amount.
Any judge can release you on a personal bond without any person acting as a surety or without making you put money down as a security for showing up in court. The personal bond may not be revoked with a warrant unless the judge who issued the warrant can show good cause.
If the bond is posted in cash, this money is not lost as long as the defendant appears for his court appearances. At the end of the case, the cash bond is returned to the person posting the bond. However, some courts will apply the cash bond towards payment of any court costs or fines assessed against you.
Although they will take the fines and costs out of the bond, regardless of who posted the cash bond, the court clerk will only return the remainder of the cash bond to the person posting the bond. Be sure to keep your cash bond receipt until the case is closed and to know whose name is on the bond.
If a bondsman is retained, they will charge a premium of ten to twenty percent of the amount of the bond plus any bond posting fees charged by the jail. For example, if the bond is $1000, a bondsman will charge usually in the range of $150 to $225 which includes his percentage plus jail fees. The bondsman’s percentage will depend on the amount of risk involved in writing the bond. This percentage is the fee or retainer that is paid to the bondsman, who then posts the full amount of the bond. It is not refundable. The person paying the bondsman is paying him to place a guarantee with the court that the bondsmen will pay the full amount of the bond if the accused doesn’t appear in court.
Most bonding companies will, in return, want a guarantee from the person arranging the bond that the accused will appear. This assurance is usually in the form of a cosigner on the bond or posting collateral. Any cosigners are responsible to the bondsman for the amount of the bond if you don’t appear in court and the bond is then forfeited.
Almost all of the bonding contracts limit the length of the bond to one year. If the case is not resolved within the year, the bondsman will want a renewal fee paid. The longer the case takes, the longer the bondsman’s capital is tied up, which results in a decreased ability for the bondman to post new bonds. All bonding companies will have certain requirements pertaining to how often and in what form you must stay in contact with the bonding company.
In cases where the person has posted bond based on the charges the officer arrested you for, the bond amount may increase or decrease when charges are later filed by the prosecutor’s office. The police officers are not attorneys and do not prosecute cases. As such, they will often either add too many charges or undercharge the defendant. After the arrest, the officer will complete his report and will forward that report to the prosecutor’s office where a prosecuting attorney will make a decision as to the appropriate charges based upon the evidence presented to him.
The prosecutor may decide not to charge the left of center ticket that was the probable cause for the DWI stop which will result in the bond decreasing. The prosecutor may find prior convictions making the case a felony resulting in the bond increasing. Occasionally, the prosecutor will decline the charge and thus, the bond previously posted is exonerated, but this is rare. If the bond increases, the bondsman will require an additional proportionate fee be posted. If the bond decreases or is exonerated, you will not get a refund because the bondsman had to post the full amount to get you out of jail that night.
Be aware that every court and jurisdiction will have different rules and procedures concerning bonds. Some jurisdictions will allow a “P.R. bond” when a person is charged with DWI after 24-72 hours. This means the person is released on his own recognizance. If he fails to appear, he can be charged with further crimes for not appearing. One municipality requires that the surety bond posted by the bondsman be replaced with a cash bond before the case can proceed. Some municipalities allow local bar members to sign for a P.R. bond for their clients.
In serious cases where the bond can be thousands of dollars, an attorney may be able to get the bond reduced depending on the facts of the case. This reduction in bond can be achieved by agreement with the prosecutor or lowered by a judge in certain circumstances. The issues the judge and/or prosecutor will look at are the risk to the community, the defendant’s ties to the community (i.e. owns home, employed, family in community, etc.), risk of flight, the facts and seriousness of the alleged crime and possible punishment.
It is not uncommon for judges to set additional bond conditions that include attendance at AA meetings, DWI classes, drug and alcohol assessment evaluations, restricted hours that require you to be at home or work at all time, and many others.
Some courts require the person out on bond to take medications (antabuse) to prevent the defendant from drinking alcoholic beverages while out on bond. Some defendants are required to meet with Pre-trial Service officers and submit to drug and alcohol testing.
Regardless of the type of bond you are released from custody on you are under the continued supervision of the Court and you better be on your best behavior or suffer the consequences.