Posted 9/3/2015

United States v. Gonzales & Gonzales Bonds and Insurance Agency, Inc., 2015 WL 4940794 (N.D.Cal. August 19, 2015) ruled on cross motions for summary judgment resolving six more “bellweather” bond matters identified by the parties.  The court rejected the surety’s argument that a delivery demand was a condition precedent to the surety’s liability on a voluntary departure bond.  The court also rejected the argument that an alteration of the voluntary departure date was a change in the bond’s condition that discharged the surety.  The court agreed with the surety that if the alien had a legal status at the time of the alleged breach of the voluntary departure bond, the surety was discharged.  The court found that a late voluntary departure was nevertheless a breach and rejected the surety’s argument that a late departure could be substantial performance of the bonded obligation.  The court found that the three day notice rule was violated if the notice to the alien was mailed two days after the notice to the surety even if it was received more than three days after the surety received its notice.  Finally, the court considered supplemental briefing on several issues it decided in a prior order, see 2015 WL 2090395 (N.D.Cal. May 5, 2015).  The court limited the three day notice rule to demands for surrender for removal not merely requests for the alien to appear for an interview or case review.  The court also held that the omission of the alien’s address from the Questionnaire provided to the surety was harmless if the address had not changed from the one on the bond and so was already known to the surety.  The court ruled for the Government on three of the six “bellweather” bonds and for the surety on the other three.

In Taylor v. Bridges, 2015 WL 4897742 (N.D.Miss. August 17, 2015) the plaintiff alleged that a bail bond company and its agents violated his federal civil rights under 42 U.S.C. §1983, and committed various state law torts.  The defendants moved to dismiss the federal civil rights claims because they were not state actors or acting under state law.  The plaintiff, however, had alleged involvement of police officers and the court thought this was sufficient “to support a plausible claim that Johnson and DBB conspired or acted jointly with the West Point Police Officers, and were thus acting ‘under color of state law.’”  The court denied the motion to dismiss.

In People v. Financial Casualty & Surety, Inc., 2015 WL 5033005 (Cal.App. August 26, 2015) the defendant’s probation was revoked, and he was released on bail.  The trial court held a series of probation violation hearings in an apparent attempt to let the defendant show some effort to comply with the conditions of the revoked probation.  Each time the court stated that the probation would remain revoked.  The defendant eventually failed to appear, and the bond was forfeited.  On appeal, the surety argued that the trial court lost jurisdiction to forfeit the bond by effectively reinstating probation.  The Court noted that the trial court “consistently, repeatedly, and expressly stated that Cervante’s probation remained revoked and that the court was not reinstating probation.”  The Court thought that the continued probation hearings were not effectively a reinstatement of the defendant’s probation and, therefore, not an exoneration of the bond under Penal Code §1195.  The Court affirmed the trial court’s denial of the surety’s motion to set aside the forfeiture.

In Snow v. Lambert, 2015 WL 5071981 (M.D.La. August 27, 2015) an indigent defendant charged with two misdemeanors alleged that the Ascension Parish post-arrest detention practices violated her Due Process and Equal Protection rights.  She sued on her own behalf and on behalf of others similarly situated and sought a temporary restraining order and preliminary injunction.  She alleged that she was denied judicial review of the secured bond amount required by the Ascension Parish Bond Schedule in spite of her financial inability to provide a cash or secured bond.  Louisiana law permitted release on unsecured obligations, but the Ascension Parish procedures did not.  The court granted a TRO directing the plaintiff’s immediate release either on her own unsecured recognizance or an unsecured bond or other reasonable and lawful non-financial conditions.

In State v. International Fidelity Insurance Co., 2015 WL 5090311 (Ariz.App. August 28, 2015) the trial court forfeited $95,000 of the $100,000 bond and the surety appealed.  The surety argued that the trial court abused its discretion by considering the State’s expenses in keeping the defendant in jail and by failing to consider the substantial efforts of the surety’s recovery agent to locate and secure the defendant.  The Court agreed and remanded the case for reconsideration of the amount to forfeit.  The Court found that the expenses to keep the defendant in jail would have been incurred anyway and were not a result of his failure to appear and subsequent re-capture.  Therefore, it was an abuse of discretion to consider them in deciding the amount of the bond to forfeit.

In State v. Navarro, Case No. WD-14-81 (Ohio App. August 28, 2015) the bail agent delayed for a year in paying the bond forfeiture despite several trial court orders to pay it “forthwith.”  The trial court revoked the agent’s bond posting privileges and refused to reinstate them after the agent paid the forfeiture.  The Court affirmed the trial court and held, “we find the trial court acted well within its discretion when it denied Bunk and Junk’s motion for reinstatement of previously revoked surety bond posting privileges.”

In Benson v. State, Case No. 03-15-121-CR (Tex.App. – Austin August 31, 2015) the surety appealed from a summary judgment.  The judgment nisi was properly entered, but the surety argued that he had supported an affirmative defense under Tex. Code of Crim. Proc. Art. 22.13(a)(5)(A) by showing that the defendant was charged with a misdemeanor and was incarcerated in another state not later than 180 days after the failure to appear.  The State argued that under Art. 22.13(b) the surety also had to show that the defendant was returned to the county of prosecution.  Article 22.13(b) provides that a surety exonerated pursuant to Art. 22.13(a)(5) “remains obligated to pay” court costs and reasonable costs for the county to secure the defendant’s return.  The Court held, “we conclude that neither article 22.13(a)(5) nor article 22.13(b) requires that the principal be returned to the county of prosecution in order for the surety to be exonerated from liability for a forfeited bond.”  Since the surety had shown at least a material issue of fact on each element of his exoneration claim, the Court reversed the summary judgment and remanded the case.