Can a Texas judge refuse a bail bondsman's affidavit to surrender (go off) a defendant's bond?

Plain-English summary

The Tom Green County Attorney asked the Attorney General whether a court has discretion to accept a surety's affidavit to surrender a bond principal and to require the bondsman to show cause for the surrender. The question grew out of a practical complaint: the county treasurer was hearing that bondsmen were "going off bonds" (surrendering the accused) just because the client had fallen behind on paying the bond fee, even though that was not the reason written on the affidavit, and judges were saying they could not deny a "go off bond."

The AG laid out two statutory tracks. For counties with a population of 110,000 or more (and smaller counties that create a bail bond board), chapter 1704 of the Occupations Code regulates bail bond sureties. Section 1704.207 authorizes a surety to surrender a principal: the surety must notify the principal or the principal's attorney, and must file an affidavit with the court stating the intention to surrender and "the reason for the intended surrender." The statute does not list which reasons are good enough, and it contains no language letting the court refuse a conforming affidavit or deny the surrender. Instead, section 1704.207(b) lets the defendant, the defendant's attorney, or the State contest a surrender they believe was without reasonable cause, and section 1704.207(c) lets the court order a refund of bond fees if it finds the contested surrender lacked reasonable cause.

The second track is the Code of Criminal Procedure. Article 17.19 lets a surety who wants to surrender a principal file an affidavit and obtain a capias or warrant to return the principal to custody; the affidavit must state "the cause for the surrender," and the court "shall" issue the capias if it finds there is cause. Like the Occupations Code provision, article 17.19 does not list sufficient reasons.

On the core question, the AG pointed to the Texas Court of Criminal Appeals decision in McConathy v. State, which held there is no authority for a trial judge to refuse to issue the arrest warrant after the required article 17.19 affidavit is filed. The AG noted that later appellate courts have refined surrounding points (for example, that a surety may go off bond ex parte without a hearing, that the cause stated need not rise to probable cause, and that an affidavit with a factual error can still support the surrender) but none contradicts McConathy. The AG read these authorities together: a court that receives a properly filed surrender affidavit has no discretion to deny the surrender. The check on an unjustified surrender is the principal's after-the-fact contest under section 1704.207(b), with a possible fee refund, not a judge refusing the affidavit at the outset.

What this means for you

This section describes what the opinion holds for each group. It is the AG's 2021 reading of the statutes and case law, persuasive but not binding.

Judges and magistrates

The opinion's position is that a court has no discretion to refuse a surety's surrender affidavit that meets the statutory requirements, or to deny the surrender, under either Occupations Code section 1704.207 or Code of Criminal Procedure article 17.19. Under article 17.19, the court "shall" issue the capias if it finds cause, and McConathy v. State holds there is no authority to refuse once the affidavit is filed.

Bail bond sureties and bondsmen

The opinion describes the surrender mechanism as one the surety can use by filing the required affidavit stating the reason or cause, without a hearing. It also flags the consequence: a principal can contest a surrender as without reasonable cause, and a court that agrees may order the bondsman to refund all or part of the bond fees.

Defendants and defense attorneys

The opinion treats the principal's contest under section 1704.207(b) as the avenue to challenge a surrender believed to lack reasonable cause, with a potential refund of bond fees under section 1704.207(c) if the court agrees.

Common questions

Q: What does "going off bond" mean?
A: It is when a bail bond surety surrenders the accused (the bond principal) back into custody, which relieves the surety of liability on the bond.

Q: Can a judge refuse to let a bondsman go off bond?
A: In the AG's view, no. The opinion says neither Occupations Code section 1704.207 nor Code of Criminal Procedure article 17.19 gives the court authority to refuse a conforming affidavit or deny the surrender, and it cites McConathy v. State to that effect.

Q: Does the bondsman have to prove a good reason first?
A: The affidavit must state a reason or cause, but the AG noted courts have held the cause need not rise to probable cause and that the surrender can occur without a hearing. There is no up-front showing the judge weighs before allowing it.

Q: What if the bondsman surrendered the defendant just over a late payment?
A: The opinion's answer is that the remedy is the principal's contest under section 1704.207(b). If the court finds the surrender was without reasonable cause, section 1704.207(c) lets it order the bondsman to refund all or part of the bond fees.

Q: Which counties does the Occupations Code chapter apply to?
A: Chapter 1704 applies in counties with a population of 110,000 or more, and in smaller counties that choose to create a bail bond board.

Background and statutory framework

Two statutory schemes govern surrender of a bond principal. The Occupations Code's chapter 1704 regulates bail bond sureties in counties of 110,000 or more (section 1704.002), defines "bail bond" and "bail bond surety" (section 1704.001), and provides for a county bail bond board (section 1704.101(3)). Section 1704.207 sets out the surrender procedure: notice to the principal, an affidavit stating the intention and reason, a principal's contest for surrenders without reasonable cause, and a possible fee refund. Separately, chapter 17 of the Code of Criminal Procedure governs bail in all criminal proceedings (articles 17.01 through 17.50; article 1.02). Article 17.16 lets a surety discharge liability by surrendering the accused into custody, and article 17.19 lets a surety file an affidavit stating the cause and obtain a capias (defined in article 23.01) for the principal's return; the court "shall" issue it on finding cause.

The AG relied on McConathy v. State (Texas Court of Criminal Appeals, 1977) for the holding that a trial judge has no authority to refuse the arrest warrant once the affidavit is filed, and read it alongside Pfeil v. State and Seneca Ins. Co., Inc. v. Ross (on the two ways a surety can end liability), Apodaca v. State (filing the affidavit does not discharge the surety until the principal is in custody), Dunn v. Brown (surrender may be ex parte without a hearing), Maya v. State (the mere filing without presentation does not satisfy the article 17.19(b) affirmative defense), Spears v. State (the cause need not rise to probable cause), Robbins v. Roberts (an affidavit with a factual error can support the surrender, with a fee refund), and Hernandez v. State (McConathy's conclusion fits counties subject to chapter 1704).

Citations and references

Statutes:

• Tex. Occ. Code § 1704.207 (surrender of principal)
• Tex. Code Crim. Proc. art. 17.19 (affidavit and capias to surrender principal)

Key cases:

• McConathy v. State, 545 S.W.2d 166 (Tex. Crim. App. 1977) (no authority for a trial judge to refuse the arrest warrant after the surrender affidavit is filed)
• Seneca Ins. Co., Inc. v. Ross, 507 S.W.3d 798 (Tex. App.—El Paso 2015, no pet.) (a surety can accomplish a surrender by filing an affidavit in the proper court)
• Robbins v. Roberts, 833 S.W.2d 619 (Tex. App.—Amarillo 1992, no pet.) (reasonable-cause determination comes after surrender; judge has no authority to refuse a conforming affidavit)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0392
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0392.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

November 15, 2021

The Honorable Chris Taylor
Tom Green County Attorney
122 West Harris
San Angelo, Texas 76903

Opinion No. KP-0392

Re: Whether a court has discretion to accept an affidavit of surety to surrender a principal and to require a bondsman to show cause for the surrender (RQ-0410-KP)

Dear Mr. Taylor:

You ask whether a court has discretion to accept an affidavit of surety to surrender a principal and to require a bondsman to show cause for the surrender.¹ Your question concerns the practice of "going off bond," by which a surety on a bail bond surrenders the accused, who is the bond principal, thereby relieving the surety of the bond's liability. See generally Maya v. State, 126 S.W.3d 581, 583–84 (Tex. App.—Texarkana 2004, no pet.) (discussing affidavits to "go off" bond). You explain that the "Tom Green County Treasurer has been receiving increasing complaints that Bondsmen [are] going off bonds just because someone fell behind on paying their bill." Request Letter at 1. You note that "this is not the reason" stated on the affidavit. Id. You state that judges at all levels are telling you that "they cannot deny a go off bond." Id.

I. Statutory Context

A. Occupations Code section 1704.207

In a county with a population of 110,000 or more, chapter 1704 of the Occupations Code governs bail bond sureties.² See TEX. OCC. CODE § 1704.002(1); see also id. § 1704.002(2) (applying chapter to counties with population less than 110,000 who choose to create a bail bond board). Chapter 1704 defines a "bail bond" as "a cash deposit, or similar deposit or written undertaking, or a bond or other security, given to guarantee the appearance of a defendant in a criminal case." Id. § 1704.001(1). A "bail bond surety" is a "person who: (A) executes a bail bond as a surety or cosurety for another person; or (B) for compensation deposits cash to ensure the appearance in court of a person accused of a crime." Id. § 1704.001(2). Chapter 1704 provides for a county bail bond board to supervise and regulate the bonding business in the county. See id. § 1704.101(3).

Chapter 1704 expressly authorizes the surrender of a principal in section 1704.207. See id. § 1704.207. Section 1704.207 requires the surety to notify the principal or his or her attorney of the surety's intention to surrender the principal. Id. § 1704.207(a)(1). It also requires the surety to file an affidavit with the court or magistrate before which the prosecution is pending that includes a statement of the surety's intention to surrender the principal and "the reason for the intended surrender." Id. § 1704.207(a)(2). Section 1704.207 does not include a list of reasons justifying the surrender. See id. § 1704.207.

Section 1704.207 contains no language authorizing the court to refuse to accept an affidavit that otherwise satisfies the statutory requirements. See id. Nor does it contain language authorizing the court to deny the surrender. See id. Instead, it allows a principal who believes the surrender was without reasonable cause to contest to the surrender. Id. § 1704.207(b) (providing that when the defendant, the defendant's attorney, or an attorney for the State "determines that a reason for the surrender was without reasonable cause" they may contest the surrender before the court). In such a contest, "[i]f the court finds that a contested surrender was without reasonable cause, the court may require the person who executed the bond to refund to the principal all or part of the fees paid for execution of the bond." Id. § 1704.207(c).

B. Code of Criminal Procedure article 17.19

Beyond the regulation of sureties, chapter 17 of the Code of Criminal Procedure governs bail in all criminal proceedings. See TEX. CODE CRIM. PROC. arts. 17.01–.50; see also id. art. 1.02 (applying procedures in the Code of Criminal Procedure to all criminal proceedings). Two provisions provide for the surrender of a principal.³ See Pfeil v. State, 40 S.W.2d 120, 123 (Tex. Crim. App. 1931) (recognizing two statutory provisions allowing for a surety to surrender a principal); Seneca Ins. Co., Inc. v. Ross, 507 S.W.3d 798, 802 (Tex. App.—El Paso 2015, no pet.) (describing generally the two ways a surety can end its financial liability on the bond).

Article 17.19 authorizes a surety "desiring to surrender his principal" to file an affidavit of the surety's intention to make a surrender in the court where the prosecution is pending in order to obtain a capias⁴ or warrant for the return of the principal to custody. TEX. CODE CRIM. PROC. art. 17.19(a); Apodaca v. State, 493 S.W.2d 859, 860 (Tex. Crim. App. 1973) (recognizing that the filing of the affidavit and issuance of the warrant does not discharge the surety until the principal is in custody). Under article 17.19, the surety must file an affidavit similar to the affidavit required by Occupations Code section 1704.207. Compare TEX. CODE CRIM. PROC. art 17.19(a)(1), with TEX. OCC. CODE § 1704.207(a)(2). The surety must state in the affidavit "the cause for the surrender." TEX. CODE CRIM. PROC. art. 17.19(a)(5). Like section 1704.207, article 17.19 does not contain a list of reasons sufficient to surrender the principal. See id. art. 17.19. Article 17.19 requires that the court shall issue the capias "if the court finds that there is cause for the surety to surrender" the principal. Id. art. 17.19(b) (providing similarly that in a proceeding pending before a magistrate, the magistrate shall issue a warrant for the arrest of the principal if "there is cause").

¹ See Letter from Honorable Chris Taylor, Tom Green Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 3, 2021) ("Request Letter").

² Tom Green County's population is 119,200.

³ Article 17.16 authorizes a surety to discharge his or her liability on a bond by surrendering the accused into custody or informing the sheriff that the accused is in custody elsewhere. See TEX. CODE CRIM. PROC. art. 17.16. Because you tell us the complaints you received involve the late payment of a bill, we focus on article 17.19, which does not involve the circumstances required in article 17.16.

⁴ A capias is a writ that is "(1) issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial, or by a clerk at the direction of the judge;" and "(2) directed 'To any peace officer of the State of Texas,' commanding the officer to arrest a person accused of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ." Id. art. 23.01.

II. Texas Court of Criminal Appeals Decision in McConathy v. State and its Progeny

In McConathy v. State, 545 S.W.2d 166 (Tex. Crim. App. 1977), the Court of Criminal Appeals concluded that no authority existed "for the trial judge to refuse the issuance of the arrest warrant after the requisite affidavit" to surrender the principal was filed pursuant to article 17.19. McConathy, 545 S.W.2d at 168. Though other appellate courts have clarified certain matters relating to the surrender of the principal, we find none that contradicts or disputes the Court of Criminal Appeal's conclusion in McConathy.

Shortly after McConathy, the Eastland Court of Appeals recognized that articles 17.16 and 17.19 permitted a "surety to relieve himself of his obligation under the bond at any time, ex parte, without any form of hearing." Dunn v. Brown, 584 S.W.2d 535, 537 (Tex. App.—Eastland 1979, no writ). The Texarkana Court of Appeals concluded that the mere filing of an affidavit to go off bond, without any requirement that the affidavit be affirmatively presented for signature or refusal, was insufficient to satisfy the elements of the affirmative defense in article 17.19(b). See Maya, 126 S.W.3d at 584; see also TEX. CODE CRIM. PROC. art. 17.19(b) (creating an affirmative defense to liability on a bond that the court or magistrate refused to issue a capias or warrant for the arrest of the principal, and after such refusal the principal failed to appear). The Waco Court of Appeals concluded that article 17.19 contained no requirement that the cause required in a surrender affidavit "rise to the level of probable cause." Spears v. State, No. 10-08-00396-CR, 2009 WL 5155573, at *2 (Tex. App.—Waco, Dec. 30, 2009, no pet.) (not designated for publication).

Pursuant to these authorities, a court in receipt of a properly filed surrender affidavit has no discretion to deny the surrender. See Seneca, 507 S.W.3d at 802 (stating that "a surety can accomplish a surrender by filing an affidavit in the proper court"); Robbins v. Roberts, 833 S.W.2d 619, 621, 623–24 (Tex. App.—Amarillo 1992, no pet.) (allowing an affidavit that contained a factual error to support the surrender, but requiring a refund of the bond premium and noting that the language of section 1704.207's predecessor provides for a "determination of reasonable cause after the surrender [and that] the trial judge has no authority to refuse the surrender when the surety has submitted the requisite affidavit").⁵

⁵ In McConathy, the Court of Criminal Appeals also concluded that "all statutes dealing with the surrender of the principal must be read in light of" section 1704.207's predecessor statute. McConathy, 545 S.W.2d at 168; see also Hernandez v. State, 600 S.W.2d 793, 798 (Tex. Crim. App. 1980) (clarifying that McConathy's conclusion is fitting for counties to which chapter 1704 applies), Robbins, 833 S.W.2d at 622 (agreeing that the remedy in section 1704.207's predecessor works in conjunction with the criminal procedure articles). Thus, in a county subject to chapter 1704, section 1704.207's method to contest the reasonableness of cause in an affidavit filed under section 1704.207 is also the method to challenge cause in an affidavit filed under article 17.19.

S U M M A R Y

Occupations Code subsection 1704.207(a) and Code of Criminal Procedure article 17.19 authorize a bond surety to surrender a principal after filing an affidavit, which among other things, states the cause for the surrender. The Texas Court of Criminal Appeals has determined that these statutory provisions contain no authority for the trial judge to refuse the surety's affidavit to surrender a principal. Instead, the mechanism by which to challenge a surety's reasonable cause is a principal's contest under Occupations Code subsection 1704.207(b).

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

JOSH RENO
Deputy Attorney General for Criminal Justice

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee