Bail Bond Cosigner: Your Role and Your Risks

How a Texas bail bond works

Bail is the security a defendant gives that they will appear and answer the accusation in the proper court (Code of Criminal Procedure art. 17.01). A bail bond is a written undertaking by the defendant and the defendant's sureties for the defendant's appearance (art. 17.02). A defendant may instead deposit cash with the court in the amount of the bond, without sureties (art. 17.02).

Most commercial bonds involve a bond company that acts as surety. Under Occupations Code chapter 1704, a person who executes a bail bond as a surety or cosurety for another person is a bail bond surety, and a license is generally required to act as one (1704.001, 1704.151). The chapter applies in counties with a population of 110,000 or more, and in smaller counties that create a bail bond board (1704.002).

The cosigner is a different role. You usually sign the bond company's own agreement, which may call you an indemnitor. That agreement, not the statute, sets what you must repay and what collateral you pledge. The statutes speak mostly to the bond and the surety, so read the agreement closely and keep a copy.

Example, for illustration only: a judge sets bail at $50,000 and the family uses a bond company. The family pays the company's fee and may pledge collateral such as a car. If the defendant attends every hearing, the company may not keep the collateral more than 30 days after the owner asks for it in writing and shows the cases have ended (1704.301). Whether any part of the fee is refundable depends on the agreement.

If the defendant misses court

When a defendant who is bound by bail fails to appear, the court takes a forfeiture of the bail (art. 22.01). The court enters judgment that the State recover the bond amount from the defendant and the sureties. The judgment states that it will be made final unless good cause is shown why the defendant did not appear (art. 22.02). A final judgment is collected by execution as in civil actions (art. 22.14).

Before final judgment, the court shall, on written motion, remit the bond amount to the surety, less court costs, the county's reasonable costs to secure the defendant's return and interest, if the defendant is released on new bail in the case or the case is dismissed. For other good cause the court may remit all or part of the amount (art. 22.16). The State must bring an action to forfeit a bond within four years after the missed appearance (art. 22.18).

After a forfeiture, the court may exonerate the defendant and the sureties only as chapter 22 provides (art. 22.125). The causes listed in art. 22.13(a) include:

• the death of the defendant before the forfeiture;
• sickness of the defendant or an uncontrollable circumstance that prevented appearance, if the failure to appear was not the defendant's fault and the defendant appears before final judgment or shows sufficient cause for not appearing;
• incarceration of the defendant in any U.S. jurisdiction at the time of the missed appearance or within 180 days afterward (misdemeanor) or 270 days afterward (felony). The surety still owes court costs, the county's reasonable costs to secure the defendant's return and interest on the bond amount from the judgment nisi until the defendant is incarcerated (art. 22.13(a)(5), (b));
• a bond that is not a valid and binding undertaking in law.

How a cosigner can try to end the role

Before a forfeiture, the surety (the bond company) can relieve itself of the bond by surrendering the defendant to the sheriff of the county where the case is pending (art. 17.16(a)(1)). It can also file an affidavit asking the court for a warrant, after notifying the defendant's attorney and, in a felony case, the prosecutor. If the court or magistrate finds cause, it issues a capias or arrest warrant, which a peace officer, a security officer or a private investigator licensed in Texas may execute (art. 17.19; Occupations Code 1704.207).

These steps belong to the surety. A cosigner cannot use them directly, but can ask the bond company in writing to act and can give it the facts. If a surrender is found to be without reasonable cause, the court may order the surety to refund fees to the defendant (Occupations Code 1704.207(b)–(c)).

The options below come from practice and from your agreement. They are not rights in the statutes, so ask the bond company what it will accept and get any release in writing.

• Ask the company whether it will accept a replacement cosigner and what it needs to release you.
• If you believe the defendant may miss court or has broken the bond conditions, tell the company in writing and give the facts.
• Help the defendant reach every hearing: confirm dates with the defense lawyer, arrange transport and keep contact details current.
• If the defendant misses court, call the defense lawyer and the company at once. A quick return can matter (art. 22.13 and 22.16, above).
• Keep a record of messages, medical records and efforts to find the defendant. Sickness or an uncontrollable circumstance has to be shown to the court (art. 22.13(a)).
• If you owe money to the company after a forfeiture, ask about a payment plan and get its terms in writing.

If immigration authorities are involved

A criminal bail bond is separate from an immigration bond. For ICE detention and immigration bond, see ICE detention bond.

Article 17.16(a-1) adds a limit for Texas criminal bonds: a surety cannot use the incarceration affidavit to be relieved of the bond if the accused is in federal custody to determine whether the accused is lawfully present in the United States.

Questions to ask before you sign

Put each question below to the bond company, in writing where possible. The chapters cited in this guide do not set the bond fee or the form of the agreement, so the agreement's terms matter.

• What is the fee, how is it paid and is any part refundable?
• What collateral is required, where is it kept and how and when is it returned?
• What do I owe if the bond is forfeited: the bond amount, court costs, interest, recovery costs?
• What ends my obligation, and will I get written confirmation? By statute the person who executed the bond is relieved of liability on the date the case is dismissed or the defendant is acquitted or convicted (Occupations Code 1704.208).
• Can the company surrender the defendant, and will it tell me first?
• Can I be replaced as cosigner, and who decides?

Time limits at a glance

These are the time limits in the Texas statutes cited above.