Amendment to Article 17.19 of the Texas Code of Criminal Procedure




HB 2697-

This bill amended article 17.19 of the Texas Code of Criminal Procedure.  Article 17.19 authorizes a surety or bail bondsman to file a request for a warrant with the magistrate or the trial court based upon some action on the part of the defendant.  

The existing statute required the surety or bail bondsman to give notice of the request to the defense attorney if the defendant was represented by counsel.  That notice must comply with Rule 21a of the Texas Rules of Civil Procedure.  Further, the statute requires that  the affidavit set out certain matters regarding the defendant including the reason why a warrant is needed.

Section 17.19 states that if the request for a warrant meets the statutory requirements the trial court or magistrate must or shall issue a warrant of arrest for the defendant.  

If the trial court refuses to issue a warrant, then the surety or bail bondsman has an affirmative defense to any subsequent failure to appear.

The changes to article 17.19 states that if the offense the defendant is charged with is classified as a felony under the Penal Code, then the surety must also give notice to the "attorney representing the state" with jurisdiction in the case of the surety's intention to surrender the principal.  

The attorney representing the state in felony cases is usually the elected district attorney.  Additionally, this is what the legislature was told was the meaning of this phrase.  The problem with this is that the elected district attorney is probably not going to want to receive a large number of surrenders filed in our larger counties.  The Dallas County district attorney's office, which proposed the bill, already has set up a special email address to receive these notices.  Other counties are following suit.

Unresolved Issues:

1.    Article 17.19 of the Texas Code of Criminal Procedure and section 1704.207 of the Texas Occupations Code mirror each other except 1704.207 provides an additional remedy not available in counties that do not have a bail bond board (Criminal Code Counties).  Since only 17.19 was amended, Section 1704.207 does not contain this requirement of notice to district attorneys.  The effect of this is unclear. 

2.    Notice to the defendant's attorney must be done in compliance with Rule 21a of the Texas Rules of Civil Procedure.  However, the new notice to district attorneys does not state that the notice must comply with the same rule.  Rule 21a generally requires that notice be sent in a format in which the surety can document that it was received.  These methods generally include:  certified mail, fax and things like hand delivery where the receiptent signs acknowledging receiving the document.  Generally, send notice by email alone does not comply with Rule 21a.  Therefore, there is an issue of whether sending notice to an email address as requested by the district attorney complies with the requirements of the statute.  It is recommended that the bail industry send notice using the method that the district attorney's office is requesting.  However, if the county has set up an email address exclusive for these notices, the surety should consider also using one of the other methods under Rule 21a to ensure that no question can be raised by the defendant.

3.    If the defendant has been arrested on a probable cause warrant but no charges have been filed to date, it is unclear if the notice applies.

4.    SB 9 sets up a new procedure for filing an appeal of a bail decision.  That change in the law creates an issue of which judge should the 17.19 affidavit be presented to once any appeal is initiated.  Must the 17.19 affidavit  be presented to the original magistrate or to the judge who considered the appeal of the bail decision.  The answer to this question is unclear.

To see the bill CLICK HERE.



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