Tuesday, October 04, 2011

Dallas judges cut breaks for bail bondsmen when clients fail to appear in court

The Dallas News on Sunday published an well-researched report on judges who don't make bail bond companies pay when their clients fail to appear in court, an issue which I'm coming to realize also arises in many other Texas jurisdictions. The story by Kevin Krause and Ed Timms ("Dallas County judges give bail bondsmen financial breaks when clients disappear," Oct 2, behind a paywall) opens:
Some of Dallas County’s criminal court judges have been letting bail bondsmen walk away from hundreds of thousands of dollars in court judgments against them — often with the blessing of the district attorney — and in many cases without scrutiny or explanation for their decisions.

The Dallas Morning News found cases in which felony court judges dismissed six-figure forfeiture cases against bondsmen even though their clients had missed court and apparently hadn’t been recaptured. There may have been a good reason, but the case files didn’t reflect one. And many judges and bondsmen aren’t talking.

Some current and former judges say decisions about bond forfeiture cases are generally made informally through discussions with the various parties, without hearings or motions or any record of such talks.
They say they will usually approve a forfeiture case dismissal only if the DA’s office and the bondsman are in agreement. If not, a hearing will probably be held — usually by the magistrate judges. Such hearings are rare, judges say.

Seven recent felony cases alone resulted in the collective loss of $700,000 in potential bail bond forfeiture revenue to the county, court records show. That’s equal to all of the bond forfeiture revenue the county has received over the past two years combined in felony court.

Those are the latest findings of a continuing examination by The News of Dallas County’s bond forfeiture operations. The News also found that:

In many cases, judges are not initiating forfeiture actions against bondsmen when their clients miss court and disappear.

Dallas County judges are inappropriately dismissing numerous other forfeiture cases after bondsmen request to “go off bond” to avoid liability if their clients miss court.

The DA’s office is agreeing to let bondsmen off the hook for thousands of dollars in forfeitures even after their clients disappear. In one case, a prosecutor signed off on a deal to dismiss a $100,000 forfeiture judgment against a bondsman even though the defendant was a fugitive.

It’s unclear how widespread these practices are because the county doesn’t track them. 
Grits has been researching a similar story- coming soon - related to bail bond forfeitures in Smith County, but in the meantime Krause and Timms seem to have dotted all their i's on this one.

There's little identifiable benefit to eschewing bond forfeitures for anyone but the bail bond industry itself.  Wrote Krause and Timms: "The result of these decisions is that many bondsmen in Dallas County are being allowed to pocket thousands of dollars in fees from defendants for writing essentially risk-free bonds, and they have little incentive to try to track down fugitives they helped release from jail."

The cost to county taxpayers during an era of fiscal austerity is tremendous: "Felony bond forfeiture revenues in Dallas County have fallen almost 70 percent since 2006 and are significantly less than what’s collected in neighboring Tarrant County, which has a smaller population."

There are certainly legitimate reasons for dismissing forfeiture cases for absconders. Under state law, reasons that justify such dismissals are "sickness or some other uncontrollable circumstance, the defendant’s death, the defendant’s incarceration, an invalid bond, or failure by the state to win an indictment of the defendant within a certain time," reported the News.

But in many counties across the state, not just in Dallas, forfeiture amounts are routinely reduced or eliminated by judges or DAs. Under the Texas Occupations Code:
Sec. 1704.205.  BAIL BOND SETTLEMENT. Before a final judgment on a forfeiture of a bail bond:

(1)  the prosecuting attorney may recommend to the court a settlement in an amount less than the amount stated in the bond; or

(2)  the court may, on its own motion, approve a settlement.
So District Attorneys offices can recommend lowering or eliminating forfeiture amounts or judges can do it on their own without any input from the DA. In Dallas it sounds like mostly judges doing it on their own. Further, the crop of new Democratic judges swept into office in 2006 and 2008 appears to have exacerbated the problem. Again from the Morning News:
Felony bond forfeiture revenues in Dallas County have fallen almost 70 percent since 2006 and are significantly less than what’s collected in neighboring Tarrant County, which has a smaller population.

And bond forfeiture set-asides are on the rise.

The News analyzed Dallas County bond forfeiture data dating to 2005 and found that forfeiture set-asides have increased greatly since 2007.

Set-asides numbered about 780 in 2006. And every year since 2007, when a new slate of judges took office, they have totaled more than 2,300. In 2006, the county potentially lost about $4 million worth of forfeited bond money because of set-asides. In 2007, that grew to $8.4 million.

Dallas County District Clerk Gary Fitzsimmons said the actual numbers are even higher because the data collected by the county is not accurate.
In Harris County, according to a knowledgeable source Grits spoke to yesterday, District Attorneys dating back to Carol Vance (1966-'79) have considered the state law allowing reduced or waived forfeiture settlements to be unconstitutional. That's because of a provision in the Texas Constitution, Article III, Section 55, which states that, "The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual to this State, or to any county, or other municipal corporation therein." The only exception is for "delinquent taxes which have been due for a period of at least ten years."

In Harris County, the DA's Office interprets that provision as trumping Sec. 1704.205 of the Occupations Code and thus won't agree to waive or reduce forfeitures as is done in Dallas. The problem is, in counties like Dallas that routinely use authority under 1704.205, nobody has standing to challenge the practice in court. Bail-bond companies themselves obviously have no incentive to do it, and if local officials interpret the Constitution as Harris County does, they simply change their own policies instead of litigating the matter. Since the debt dispute is a civil claim between the bail bondsmen and the county, nobody else has standing to challenge their interpretation, much less a vested interest in doing so. Taxpayers have a theoretical interest at stake, but not a legal one.

The missing, unspoken piece of the puzzle here is the political influence of bail bond companies, whose owners and employees are often reliable contributors to incumbent judges, DAs, state legislators on key committees, and county officials on the local bail bond board. It's a safe bet that if you compiled lists of owners and employees of bail bond companies and cross-checked them with political donors to the various pols involved in the process, they're pumping significant amounts into the campaign coffers of incumbents who affect their business. (As the kids are chanting in the Wall Street protests, "This is what democracy looks like.")

I'd love to see reporters across the state replicate the work done here by Mssrs. Krause and Timms. From their reporting, it sounds like the Harris and Bexar DAs won't reduce or waive forfeitures at all, though individual judges might still do so. But according to an email I received this morning from Ken Good, a Tyler attorney representing bail bond companies, many other counties aren't requiring bail bond companies to forfeit the full amount: "Tarrant County settles for 35% with no defendant. There are other counties [that] do similar. El Paso County will always settle for less than 100% without the body." It'd be a great mitzvah for reporters in other jurisdictions to explore these questions elsewhere in the state.

Other than simply eliminating Sec. 1704.205 of the Occupations Code, which would be fine by me, it's difficult to suggest reforms to fix the situation because the process is so opaque. If anyone at the Legislature wanted to address the matter, the first step might be simply to require data collection on forfeiture reductions and waivers. It'd also be a good idea to make judges put their decisions on forfeiture reductions and their reasons for giving them in writing. As it stands, the process is too murky and smacks of good ol' boy cronyism. Even when everything is on the up and up and the reasons for reductions are legitimate, from taxpayers' perspective the situation just doesn't pass the smell test.


Anonymous said...

I have no compassion whatsoever for bonding companies. But with that said, any effort to raise the cost of doing business for bonding companies will just be passed along to defendants trying to get out of jail.

Gritsforbreakfast said...

No it won't 11:58. Bail bondsmen in Houston forfeit 100% of bonds if defendants don't show, and they charge their clients 10% just like in Dallas.

See this coverage from the Houston Chron last year, where Lise Olsen reported that "Bondsmen make money by collecting 10 percent off the top in fees." That's no different than the rates in Dallas.

Don said...

How would I find out if this is going on in other counties?

Anonymous said...

Of course, if they're not having to pay up when the clients don't show, an important question remains: Why do clients have to pay bail, do business with bail bondsmen, in the first place.

What's going on in Dallas shows what a racket the whole thing is. How many counties do bogus arrests without grounds, in order to enrich bail bondsmen to begin with. Clearly things are very cozy in Dallas.

Anonymous said...

I suspect, if you checked, you would find that these bondsman contributed to the judges campaign fund.

I'm anxious to see your findings regarding Smith County. I'm sure you know about the shenanigans that were going on between a bondsman and the sheriff's department a few years ago. This bondsman was taking sheriff's dept. officials on gambling trips and giving gifts/bribes to jailers for directing customers to him. No surprisingly he had almost all the business.

Anonymous said...

Grits, I'm not so sure you can say that an aggressive bond forfeiture will have no impact on people getting out of jail. How do you know bonding companies won't become more strict in the standards they use in deciding who to underwrite a bond for? Stated differently, might bonding companies be less inclined to take a risk on someone who is a greater flight risk? Just thinking out loud.

Gritsforbreakfast said...

12:43, perhaps that's true, but that would only mean they're aligning the risk-reward ratio more closely to the court's assessment of risk, instead of having bad business decisions subsidized/underwritten by the county. In counties where forfeitures are reduced or waived, counties are privatizing profit and socializing risk. There's a "moral hazard" problem, in the economists' jargon, whereas the private assumption of risk is supposedly the underlying motivation/justification for private bail in the first place.

11:58 said the costs would be passed on to consumers, which I don't think is likely. But certainly it may cause bail bondsmen to be more cautious about who they write bonds for.

Don, start by contacting the local pretrial services division, the court coordinator, or the civil division of the DA's office and just start asking questions.

Anonymous said...

Isn't the Dallas County DA an ex-bail bondsman?

"...forfeiture set-asides have increased greatly since 2007."

When was the Dallas County DA elected?

But surely, these are only coincidences...

Gritsforbreakfast said...

1:18, that's true, but that same year Democrats swept all the judges slots, too, so it's hard to pin down the source of the change. DA's can recommend the change, but judges must sign off on it. Judges can also lower or waive the forfeiture without any input from he DA's Office.

Whether it's accurate I can't say for sure, but in the story Watkins was quoted as saying “'99 percent of the time,' bondsmen go directly to the judge to seek a dismissal, without the prosecutor’s knowledge. 'The DA is not even a part of it,' Watkins said.” Other quotes in the story, though, made it sound like the DA's office was more involved.

ckikerintulia said...

Well,I don't know if this is universal or widespread practice, but bail companies come after the defendant or whoever makes bail/signs bond for defendant. I was courier for a sick wife who sent bond money to get her husband out of jail. But I had to sign for liability for the 90% in case the defendant skipped. Needless to say I was relieved when his issue was finally resolved.

Anonymous said...

I can't wait to find out what is going on in Smith County. Very closed circle between the prosecutors, judges, LEOs and bail bondsmen. We are having several folks running for Sheriff to replace JB Smith who is retiring. (One an BATFE agent, if you can believe that anyone from that agency would currently run for a public office.)

NONE of them, when questioned, express knowledge of the rate of incarceration in Smith County, how many folks in jail, what the crime rate might be, how many illegal aliens there are in the county, et, et. They just want to be Sheriff.

titfortat said...

Ironically, all comments so far have shown not only how little everyone here knows about the bail bond business but how little (I know) about the bail bond business in other Texas counties.

It’s a tough business in Harris County which is why I take such offense when Grits takes his occasional poke at us.

His last poke regarding the dollar amount assessed for court cost when a bail bond is forfeited (which BTW has gone back to over two hundred dollars without yet being justified as to why since the true cost is still unknown) dramatically affects those criminal defendants that are a few minutes late for court. Bond reinstatements have declined and we now have a lot more fugitives that are guilty of being unable to raise the two hundred within 10 days in order to set the bond forfeiture aside. Consequently the court doubles their bond. I’m still completely confused as to how this is seen as a good thing for all those who see themselves as advocates for reform within the criminal justice system, please explain it to all those new fugitives that were simply late for court by 5 minutes. I’m pretty sure they don’t want your kind of help.

Anyway, I’m shocked and infuriated by this information; honestly it feels like a punch in stomach when I see that this gross negligence exists because I do know how difficult this business is and how it infuriates me when comments are made about how well the government could do if given the opportunity when I know firsthand how horribly they have performed in the past when they were given the opportunity in Harris County.

I do however agree wholeheartedly; Why have private bail when what appears to be happening in Dallas and possibly in other counties is tantamount to the exact same thing as pretrial release with a middleman. From the sounds of things the politicians in Dallas have come up with a way for bondsmen to go GREEN. They have their own little Solyndra going and hopefully with enough sun shining on their lucrative green initiative they can file for bankruptcy soon too.

Pretrial release is a joke on taxpayers and this subsidy for bail bondsmen is just shameful, zero accountability is zero accountability.

Bail should be administered and given thoughtfully, and without question those who take on the responsibility of bail should be accountable for their performance.

There are two sides to every coin but the numbers here are too high and the frequency is too telling, if it looks like a dung pile and smells like a dung pile it’s probably a dung pile. Bail Bondsmen in Harris County work very hard, return fugitives to custody, pay their bail bond forfeitures if they fail to perform and this article does not represent how we operate.

Anonymous said...

I've said it before.....

The federal system stopped taking money years ago and it seems to work just fine.

Gritsforbreakfast said...

titfortat, glad to hear there are at least some bail practices you won't defend. Now if you'll stop pretending that bail bondsmen capture and return every fugitive (the majority are re-arrested by law enforcement, turn themselves in, or otherwise return to court through no effort of the bond company), we might even start having rational discussions on this instead of just talking past each other.

As for your complaint about fees, the fallacy in your assumption about this blog is that you seem to think I just want to let every offender go free, that nobody should be in jail, etc.. That's more a function of your biases than reflective of my views. I'm a lifelong citizen of the state who wants the justice system to operate fairly and in the best interests of the citizenry. I care as much about taxpayers as defendants and don't agree with waiving fees for special interests just because they contribute to somebody's campaign. The justice system tends to socialize risk and privatize profits, particularly in your industry. The Dallas example is just an extreme case, but literally BY DEFINITION the entire bail bond industry is nothing but "pretrial release with a middleman." That's your friggin' job description!

As 8:46 aptly points out, the federal system cuts out that middleman and works just fine.

Anonymous said...

How does the federal system work? What's the procedure?

Anonymous said...

I'm not an expert but I'll tell you what little I know about the federal system. The judge holds a pretrial release hearing and in most cases the defendant will be released with bond conditions. I think about the only time the defendant would not be released is if they were an extreme flight risk or were a danger. I observed one of these proceedings involving two young hispanics who were caught transporting a significant amount of cocaine. This was in Arkansas and they lived in Texas. The parents of one were present and the judge required them to take responsibility for reporting any violations of the conditions. The two men were cousins but there was no one there for the other defendant. The probation officer had talked to his father and learned the defendant had a drug problem since he was a teenager so the judge required him to wear an ankle monitor. They were allowed to return to their homes but told they had to remain in the Western District of Texas except for returning to court when required in Arkansas. The judge admonished them that they could not go to Mexico to visit relatives. That was pretty much it. No money was required. It appears that there was some investigation by the probation officer prior to this hearing, talking to family, getting history information. So the judge actually knew something about them before releasing them.

titfortat said...

Actually I have never once that I am aware of insinuated that your position is to let everyone go free and in fact I agree with you on almost every other issue you bring to light here; there is much needed reform within the criminal justice system and most of that that I agree with would be very detrimental to my business.

Detrimental as it could well be I believe that a large degree of freedom has been diminished through the criminalization of drugs; I truly believe this to be a health issue and feel very strongly that the poor and minorities have endured long suffering, and injustice because of the direction our politicians have taken us with the WOD to name a big one.

I have donated to your blog and feel that you do a remarkable job in keeping up with it.

There are a great deal of what I consider to be injustices within the criminal justice system and all of them in my opinion are egregious and unfortunately many have been brought about because of the meddling of those who claim to be advocates for reform. Where in many cases the original idea and intent was meant to be a good thing the end result ends up being the exact opposite and incarceration ends up being the result.

The reason I disagree with you on bail issues in general is because in general I feel you are uninformed or should I say possibly under informed and as I readily admit apparently in some cases so am I.

That I know of my comments directed to you specifically have never been of an ugly nature and if ever taken that way it has never been my intention to do so.

The thing that I appreciate most is that you leave your forum open to discussion from all sides and I know of no other way to have a real discussion on issues.

Your comment about how many fugitives that skip bail and are apprehended by law enforcement or are otherwise returned to custody with little involvement coming from bail bond companies is unfounded and simply not true and I have many years of tracking fugitives with which to draw my conclusion, the vast majority of which were running and without my investigation would not have been returned to custody through law enforcement investigation and I’m sorry if you disagree but that is the truth and it is undisputable.

There seems to be an automatic assumption that because I am a bail bondsman I am bias in my opinion, when in fact all studies made both privately and by government have shown that private bail performs much better than any other form of bail. There really is a real reason why these studies show these results and to ignore them or in any way dismiss them would seem to me that the bias points in the other direction.

My concerns are that with almost all things regulated by the government another piece of freedom is taken away, intentional or unintentional it really doesn’t matter once a government bureaucracy takes complete control over anything freedom is not only diminished but it’s the citizens that are left paying for their diminished freedom.

Anyway, that’s my opinion and if it is perceived as a bias one then thank you again for the open forum with which to present it.

Gritsforbreakfast said...

titfortat, sorry if I misrepresented your views, and thanks for the donation and your kind words.

Part of my frustration is that you often conflate two categories of pretrial release: Those required to be released by law and those pretrial services recommend for release. The former category includes lots of homeless (who they can't realistically just hold forever) and other high risk folks, and you're right they have a high FTA rate. The latter have a FTA rate that's very close to bondsmen and the difference, I'm told by Harris County officials, is statistically insignificant. So I often feel like we're talking past each other, and if that frustration shows sometimes (and I know it runs both directions) you have my apology.

FWIW, I've been researching bail questions recently including the question of the proportion of absconnders brought in by folks other than bail bondsman, and was planning to file an open records request on the subject next week to get specific information. When I do, let's continue this conversation.

Gritsforbreakfast said...

BTW, t4t, I found your last comment in the spam filter for some reason so the delay in it being published was unintentional.

That spam filter is frustrating- it catches too many real comments but also so many spam comments (sometimes hundreds) I can't afford to turn it off. Just so you know, though, I'm not screening your comments - that was a technical glitch.

titfortat said...

I appreciate your comments as well and thank you.

I don’t take offense, personalities are counterproductive; after 31 years my opinion has been formulated through actual experience and actual events and as I believe you have alluded to before very few understand the inner workings of the bail bond business including most within the criminal justice system. I submit that even less is understood or known about government pretrial release outside of the propaganda they produce.

I truly feel a great deal of misinformation exists and my goal here is simply to try to the best of my ability shed a bit of light on a subject I do know a great deal about in Harris County and I always look forward to the discussion.

The problem with any statistics you may gather about fugitive apprehension pertaining to those who have fled while out on bond is that bail bond investigators do work closely with law enforcement and typically provide the information needed in order to make the apprehension.

This activity is promoted by law enforcement for the most part because they feel that arrests should be made solely by law enforcement. While this isn’t always possible because of the immediate circumstances when it is at all possible private investigators do co-operate with law enforcement and always work to this end if possible. It is doubtful that these inner workings between private investigators and law enforcement are tabulated.

titfortat said...

In response to 8:46 the average cost based on statistics provided by the United State Dept of Justice to provide government pretrial release to criminal defendants between 2001 and 2007 was between $3100.00 and $4600.00 per defendant which doesn’t pass the smell test for the Federal Government not taking in any money, the difference is they are taking it from you and not the defendant.

These same defendants if allowed to be released through private bail would have cost a fraction of that per defendant and cost you the taxpayer zero.

The rebuttal argument from the other side would be that it costs a great deal more to keep criminal defendants incarcerated, however during this same time frame based on recommendation input from government pretrial release, incarceration (without) the possibility of bail (the vast majority being those charged with drug related crimes and not capital offenses) has risen steadily from 53% in 2001 to 64% in 2007.

What is most amazing to me is the preconceived notion by those who claim to be advocates for change within the criminal justice system that more freedom exists because of the use of government pretrial release, that they promote political ideals to help reduce incarceration, that they in any way provide protection to the poor, that they do anything to reduce jail overcrowding, and that they in any possible way save taxpayers a penny.

Henderson Bondsman said...

That is horribly unfair if true. If a bail bonds company in Las Vegas was getting similar preferential treatment, I'd be furious! There would be a public outcry here in Las Vegas to abolish the private surey bail bonds industry in general.