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.