Section 11.88 Generally—Statutes—Court Rules

• Library: Insurance Practice 2015

A bail bond is an enforceable contract between the government and the principal and the surety to ensure the prompt appearance of a defendant during criminal proceedings as directed by the court. It should be construed to give effect to the reasonable intention of the parties.

Enforcement of bail bond conditions varies from state to state depending on statute, court rule, and interpretation of case decisions and precedent. Federal courts follow local state statutes and rules.

In federal criminal bond cases, Federal Rule of Criminal Procedure 46(e)(1)–(4) should be consulted. Federal forfeiture decisions do not favor relief for compensated bail bond sureties.

The factors that federal district courts consider in deciding whether to remit judgment on appearance bond forfeitures, in whole or in part, include:

willfulness of the defendant’s breach; any explanation or mitigating factors; whether sureties were professionals or the defendant’s friends or family members; participation of the surety in apprehending the defendant; appropriateness of the bond amount; and cost, inconvenience, or prejudice to the government.

United States v. Lacey, 982 F.2d 410 (10^th Cir. 1992); Fed. R. Crim. P. 46(e)(1)–(4).

Sections 374.700–374.755, RSMo 2000 and Supp. 2003, regulate the licensing and conduct of bail bond agents under the supervision of the division of insurance.

A bail bond is not punitive, and it is not intended to be a substitute for a fine or a revenue device to enrich the government’s coffers. Carbo v. United States, 82 S. Ct. 662 (1962); United States v. Bass, 573 F.2d 258 (5^th Cir. 1978).

When a state pursued judgment against a bond company but did not pursue judgment against the criminal defendant on a personal recognizance bond, the appellate court held that equity, due process, and basic fairness required remittitur to the surety. The court was troubled by the apparent double standard applied by the state. Gramercy Ins. Co. v. Tex., 834 S.W.2d 379 (Tex. App. 1992).

Normally, liability of bail terminates with the pronouncement of judgment or sentence on the defendant when the recognizance does not contain a condition requiring the defendant to abide a final order or judgment of the court, and if convicted, to surrender himself or herself in execution of the order or judgment. Therefore, the court cannot make a different arrangement with the defendant after establishment of guilt to extend the surety’s obligation to cover payment of a fine at some future...