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 of a : re~arrest 

of a defendant on a 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 of a 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 in the bond at then 

time stated therein. The amount of such expense 

shall be in addition to the principal amount 

specified in the bond. The failure of any bail 

bond to contain the conditions specified in this 

p. ,976 
The Honorable Tom Hanna. page 2 (H-208) 

paragraph shall in no manner affect the legality 

of any 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, and not 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 of the 

statute imposes liability on the sureties and defendants for rearrest expenses 

without regard to the presence of such language in the 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 of a defendant within the state on affidavits for release of surety?” 

The procedure by which a surety is relieved of liability by affidavit is set 

out in 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 of arrest for such principal, which shall be 

executed as in other cases. ” 

We believe your question is answered by the opinion of the Court of 

Criminal Appeals in Wells v. State, 271 S. W. 918 (Tex. Crim. 1925) which 

was a bond forfeiture case under a virtually identical statute. The Court 

relied on both the majority and dissenting opinions in Whitner v. State, 

41 S. W. 595 (Tex. Grim. 1897) and said: 

p. 977 
The 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 of the 

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 on the 

state. The object of the law, it would appear, is to 

give the surety authority, under the statute, to relieve 

himself ,of liability under the bond: but, before he is 

relieved, he must put the state in at least as good a 

situation as it was before. ’ 

“We take it from the extracts of the case, supra, 

that it is clearly shown by the majority of the court 

that you do not have to follow literally the wordingof thestatute in question, and from the dissenting 

opinion of Judge Henderson that the surety has to -’ 

put the state in at least as good a position as it was 

before, before the surety will be relieved. 

“We have found no authority contrary to the doctrine 

above-stated. and we believe same is the law and against 

the contention of the appellant in this case. The condition of bail 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 the view of the appellant in 

this case, that all that is necessary to relieve a surety 

~onhis bond is to make an affidavit, obtain a warrant of 

arrest and turn it over to the sheriff; if that were true, 

it strikes us it would be entirely useless.to require any 

bond at all, because ,the defendant could go without the 

jurisdiction of the cc&t, leave the country, and then 

his sureties could make the affidavit, obtain a warrant 

and. turn it over to .the sheriff, and no one be liable for 

the appearance of the defendant before the court. If 

this court should adopt such a construction of the above 

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

statutes, it will be readily seen that there would be 

very few guilty persons out on bail who would ever 

appear before the courts of this 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 of the defendant, notwithstanding 

the filing of an affidavit and issuance of a warrant 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 of an 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 of the Governor 

to be allowed by.such Governor and to be paid out 

of the State Treasury upon a certificate of the Governor 

reciting the services rendered and the allowance therefor. 

“Sec. 2. The commissioners court of the county where 

an offense is committed may in its discretion, on the request 

of the sheriff and the recommendation of the district attorney, 

pay the actual and necessary traveling expenses of the officer 

or person so commissioned out of any fund or funds not 

otherwise pledged. ” 

The primary obligation for reimbursing persons who bring fugitives 

from justice back to this state, rests on the Governor, although in rare 

instances the county may pay the actual and necessary expenses of the 

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

officer. Attorney General Opinion V-587 (1948). If a 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 if the fugitive had been 

found within the State. 

Your fourth question is: 

“In the event the bondsmen and/or attorneys are responsible 

in any of the above instances, what expenses are reimburseable? ,Here, we are concerned with costs attributable to 

mileage, officer’s salary, motel bills, meals and any other 

expenses incurred by the sheriff’s department in the rearrest 

of.a de fendant. ” 

The expenses which are reimburseable are those which are “necessary and 

reasonable”, Article 17.08, Vernon’s Texas Code of Criminal Procedure, Scott 

v. State, 102 S. W. 2d 434 (Tex. Crim. 1937). Whether a particular type of - 

expenditure ins necessary and reasonable in a particular case requires a finding 

of fact which we are neither permitted nor competent to make. Therefore, it is 

impossible to give a categorical list of then expenses which are to be reimbursed. 

Attorneys General Opinion V-186 (1947). 

Your final question is: 

“What course of action is available to a county in the event 

the bondsmen and/or etfunqrs refuse or fail to provide 

reimbursement for the costs involved in these rearrests? ” 

The basic statute governing this question is Vernon’s Texas Code of Criminal 

Procedure, Article 22.10. which provides: 

“When a forfeiture has been declared upon a bond, the 

court or clerk shall docket the case upon the scire facias 

or upon the civil docket. in the name of the State of Texas, 

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

It is our opinion that a scire facias proceeding in a 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 

p. 981