This is the first in a series of Blog posts addressing Bail in criminal actions coming out of State Courts in Texas. These posts will include discussions of what Bail is, Rules for Fixing Bail Amounts, and a discussion about Personal Bonds.
What is “Bail?”
Per Article 17.01 of the Texas Code of Criminal Procedure, “‘Bail’ is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.” CCP art. 17.01. Now that we know what Bail is, that begs the question of why we need it. Trammel v. State indicates that the “purpose of bail is to secure the presence of an accused upon trial of an accusation against him…” 529 S.W.2d 528, 529-30 (Tex.Crim.App.1975).
The underlying purpose of Bail is to ensure the accused will be present at their trial. By requiring a defendant to post funds to ensure their release, the rationale is that with “skin in the game,” an individual will show up for to court for their case. If an individual does not show up to their scheduled Court date, their bond is subject to forfeiture.
That being said, most folks lack the resources to post their bond independently. This is where Bail Bonds come into play. The CCP defines a Bail Bond as “a written undertaking entered into by the defendant and the defendant’s sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation…” CCP art. 17.02. By entering into an agreement with a Bonding Company (bondsman), defendants have a contractual agreement with an individual that represents a surety. If an individual enters into an agreement with a Bonding Company, the requirements between an individual and their bonding company are of a contractual nature. While it is the responsibility of the Defendant to show up to Court, the Bonding Company is also required to keep the Defendant in the loop about Court dates. In the event that a defendant does not show up to Court, the Bond written by the Bonding Company is subject to forfeiture. This is all incentive for the bonding company to ensure their client’s compliance with showing up to Court.
The primary concern of Bail and Bail Bonds is to ensure that citizens accused in criminal proceedings go to Court.