# THE AT&-ORNEYGENERAL OF ?rExAs AUSTIN. 

# T- 78711 January 10, 1974

The Honorable. Tom Hanm Criminal District attorney Jefferson County P. 0. Box 2553 ,Beaumont, Texas 77704 Opinion No. .H- ,208

Dear Mr. Hanna: Re: The expenses ofa :re~arrest ofa defendant ona bond forfeiture or affidavit of surety to surrender.

You have as’hed’ our’opinion onfifive questions ~relating to the.co’sts of ’ rea~rrests of,‘defendants‘on bond forfeitures and ‘affidavits of suretj’to surrender. Your first question is:

“Is a county or county sheriff’s department entitled’ to reimbursement from bail bondsmen and/or attorneys, as sureties, for costs incurred by such department in the rearrest ofa defendant within the state after’ a bond forfeiture? ”:~ Article 17.08, Vernon’s Texas Code of Criminal Procedure, provides in part: ” A bail bond shall be sufficient if it contains the

following requisites:

. . . 

### !'6.The bond shall’also be conditioned that the principal and sureties, if any, will pay aDnecessary and reasonable expenses incurred by any and.all sheriffs or other peace officers in r,earresting the principal~in the event he fails to appear before the court or magistrate named inthe bond at then time stated therein. The amount of such expense shall be inaddition to the principal amount specified in the bond. The failure ofany bail bond to contain the conditions specified in this

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paragraph shall in no manner affect the legality ofany such bond, but it is intended that the sheriff or other peace.officer shall look to the defendant and his sureties, if any. for expenses incurred by him, andnot to the State for any fees earned by him in connection with the rearresting of an accused who has violated the conditions of’his bond. ” It is clear that the sureties are liable for rearrest expenses when the bond contain~s language so stating. The statute contemplates that some bonds may not contain rearrest expense provisions. Although the absence of such provisions will not invalidate a bond, we believe the clear import ofthe statute imposes liability on the sureties and defendants for rearrest expenses without regard to the presence of such language inthe bond. Your second question is:

“Is a county or county sheriff’s department entitled to reimbursement from bail bondsmen and/or attorneys, as sureties, for costs incurred by such department in the rearrest ofa defendant within the state on affidavits for release of surety?” The procedure bywhich a surety is relieved ofliability by affidavit is set outin Vernon’s Texas Code of Criminal Procedure, Art. 17.19, which provides:

“Any surety, desiring to surrender his principal, may upon making affidavit of such intention before the court or magistrate before which the prosecution is pending, obtain from such court or magistrate a warrant ofarrest for such principal, which shall be executed as in other cases. ” We believe your question is answered by the opinion ofthe Court of Criminal Appeals inWells v. State, 271S.W. 918 (Tex. Crim. 1925) which was a bond forfeiture case under avirtually identical statute. The Court relied on both the majority and dissenting opinions in Whitner v. State, 41S.W. 595 (Tex. Grim. 1897) and said:

p. 977The Honorable Tom Hanna. page 3 (H-208)

“.
. . Judge Henderson in a dissenting opinion in said case, wherein he contended that the statute contemplated that the sureties should arrest the defendant and surrender him to the sheriff ofthe county where the prosecution is pending, uses the following language: ” ‘This statute is intended to confer a benefit on the surety, but not to entail a loss or expense onthe state. The object of the law, itwould appear, is to give the surety authority, under the statute, to relieve himself ,ofliability under the bond: but, before he is relieved, he must put the state in at least as good a situation as itwas before. ’ “We take it from the extracts ofthe case, supra, that it is clearly shown by the majority ofthe court that you do nothave to follow literally the wordingofthestatute in question, and from the dissenting opinion ofJudge Henderson that the surety has to

-’ put the state inat least as good a position as itwas before, before the surety will be relieved. “We have found no authority contrary to the doctrine above-stated. andwe believe same is the law and against the contention ofthe appellant inthis case. The condition ofbail bonds ,is to the effect that the defendant or principal will remain inappearance before .said court from day to day and from term to term until. - discharged. Now, to take theview ofthe appellant in this case, that all that is necessary to relieve a surety ~onhis bond is to make an affidavit, obtain awarrant of arrest and turn it over to the sheriff; if that were true, it strikes us itwould be entirely useless.to require any bond at all, because ,thedefendant could gowithout the jurisdiction ofthe cc&t, leave the country, and then his sureties could make the affidavit, obtain awarrant and.turn it over to.the sheriff, and no one be liable for the appearance ofthe defendant before the court. If this court should adopt such a construction ofthe above

pa 978The Honorable Tom Hanna, page 4 (H-208)

statutes, itwill be readily seen that there would be very few guilty persons out onbail who would ever appear before the courts ofthis country for trial. I’ (271 S.W. at 919-920). See also Apodaca v. State, 493 S.W. 2d 859 (Tex. Crim. 1973); Thompson v. State, 335 S.W. 2d 226 (Tex. Grim. 1960). Accordingly, we believe a surety may be liable for the expenses of rearrest ofthe defendant, notwithstanding the filing ofan affidavit and issuance ofawarrant under Article 17.19. Your third question is: “Where a county has paid, pursuant to the authority, of Vernon’s Annotated Code of Criminal Procedure, Article 51.10, Sec. 2, the actual and necessary traveling expenses ofan officer commissioned by the Governor to rearrest and return a fugitive from justice. upon whom a bond has been forfeited or affidavit of surrender has been filed, is the county entitled to reimbursement from the bondsmen and/or attorneys, as sureties, for such expenses? ” Article 51.10 provides:

“The officer or person so commissioned shall receive as compensation the actual and necessary traveling expenses upon.requisition ofthe Governor to be allowed by.such Governor and to be paid out ofthe State Treasury upon a certificate ofthe Governor reciting the services rendered and the allowance therefor.

“Sec. 2. The commissioners court ofthe county where an offense is committed may in its discretion, onthe request ofthe sheriff and the recommendation ofthe district attorney, pay the actual and necessary traveling expenses ofthe officer or person so commissioned out ofany fund or funds not otherwise pledged. ” The primary obligation for reimbursing persons who bring fugitives from justice back tothis state, rests onthe Governor, although in rare instances the county may pay the actual and necessary expenses of the

p. 979The Honorable Tom Hanna, page 5 (H-208)

officer. Attorney General Opinion V-587 (1948). Ifa county does reimburse the officer who rearrests a defendant who has forfeited bond or whose sureties have filed an affidavit of surrender and returns him to this State, we believe it may look to the sureties for the expense incurred just as ifthe fugitive had been found within the State. Your fourth question is:

“In the event the bondsmen and/or attorneys are responsible inany ofthe above instances, what expenses are reimburseable? ,Here, we are concerned with costs attributable to mileage, officer’s salary, motel bills, meals andany other expenses incurred by the sheriff’s department in the rearrest of.a defendant. ” The expenses which are reimburseable are those which are “necessary and reasonable”, Article 17.08, Vernon’s Texas Code ofCriminal Procedure, Scott v. State, 102S.W. 2d 434 (Tex. Crim. 1937). Whether aparticular type of - expenditure insnecessary and reasonable in aparticular case requires a finding offact which we are neither permitted nor competent tomake. Therefore, it is impossible to give a categorical list ofthenexpenses which are to be reimbursed. Attorneys General Opinion V-186 (1947). Your final question is: “What course ofaction is available to a county inthe event the bondsmen and/or etfunqrs refuse or fail to provide reimbursement for the costs involved inthese rearrests? ” The basic statute governing this question is Vernon’s Texas Code of Criminal Procedure, Article 22.10. which provides:

“When aforfeiture has been declared upon abond, the court or clerk shall docket the case upon the scire facias or upon the civil docket. in the name ofthe State ofTexas, as plaintiff, and the principal and his sureties, if any, as defendants; and the proceedings had therein shall be governed by the same rules governing other civil suits. I’

p. 980The Honorable Tom Hanna, page 6 (H-208)

It is our opinion that a scire facias proceeding ina bond forfeiture case may include any claim for reimbursement of expenses of rearrest. Opinion C-635 (1966). Attorney Genera 1 In cases where a forfeiture has not been taken (see question 2). we believe the county not only has available the remedy of scire facias but also may institute a civil proceeding to recover any expenses of rearrest. SUMMARY

A county is entitled to reimbursement from sureties for the reasonable and necessary costs of rearrest after a bond forfeitureor an affidavit of surrender under Article 17.19, Vernon’s Texas Code of Criminal Procedure. The expenses may be recovered’ in a scire facias proceeding or in a separate civil action. Very truly yours,

Attorney General of Texas

3 Opinion Committee

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