                THE AT&-ORNEYGENERAL
                          OF ?rExAs
                      AUSTIN. T-   78711

                                    January     10, 1974




 The Honorable. Tom Hanm                                       Opinion No. .H- ,208
 Criminal District attorney
 Jefferson County                                              Re:     The expenses of a : re~arrest
 P. 0. Box 2553                                                        of a defendant on a bond for-
 ,Beaumont, Texas 77704                                                feiture or affidavit of surety
                                                                       to surrender.
 Dear   Mr.    Hanna:

      You have as’hed’ our’opinion onfifive questions ~relating to the .co’sts of
’ rea~rrests of,‘defendants‘on  bond forfeitures  and ‘affidavits of suretj’to
  surrender.    Your first question is:

          “Is a county or county sheriff’s   department entitled’
          to reimbursement      from bail bondsmen and/or attorneys,
          as sureties,   for costs incurred by such department in
          the rearrest   of a defendant within the state after’ a
          bond forfeiture?   ” :~

     Article    17.08,   Vernon’s    Texas     Code of Criminal       Procedure,   provides   in
 part:

               ” A bail bond shall be sufficient           if it contains   the
          following requisites:

           . . .

              !'6. The bond shall’also    be conditioned that the
          principal and sureties,   if any, will pay aDnecessary
          and reasonable   expenses incurred by any and.all
          sheriffs or other peace officers in r,earresting   the
          principal~in the event he fails to appear before
          the court or magistrate    named in the bond at then
          time stated therein.    The amount of such expense
          shall be in addition to the principal amount
          specified in the bond.   The failure of any bail
          bond to contain the conditions specified in this




                                              p. ,976
The Honorable    Tom Hanna.        page 2   (H-208)




        paragraph shall in no manner affect the legality
        of any such bond, but it is intended that the sheriff
        or other peace.officer    shall look to the defendant
        and his sureties,   if any. for expenses incurred by
        him, and not to the State for any fees earned by
        him in connection with the rearresting      of an
        accused who has violated the conditions of’his
        bond. ”

    It is clear that the sureties are liable for rearrest    expenses when the
bond contain~s language so stating.      The statute contemplates   that some bonds
may not contain rearrest      expense provisions.    Although the absence of such
provisions   will not invalidate a bond, we believe the clear import of the
statute imposes liability on the sureties and defendants for rearrest       expenses
without regard to the presence      of such language in the bond.

    Your   second question   is:

        “Is a county or county sheriff’s   department entitled to
        reimbursement     from bail bondsmen and/or attorneys,
        as sureties,   for costs incurred by such department
        in the rearrest   of a defendant within the state on affi-
        davits for release of surety?”

    The procedure by which a surety is relieved of liability by affidavit is set
out in Vernon’s Texas Code of Criminal Procedure,    Art. 17.19, which provides:

            “Any surety,    desiring      to surrender his principal,
        may upon making affidavit         of such intention before the
        court or magistrate    before      which the prosecution   is
        pending,  obtain from such         court or magistrate   a
        warrant of arrest for such         principal, which shall be
        executed as in other cases.         ”

     We believe your question is answered by the opinion of the Court of
Criminal Appeals in Wells v. State, 271 S. W. 918 (Tex. Crim.    1925) which
was a bond forfeiture  case under a virtually identical statute. The Court
relied on both the majority and dissenting opinions in Whitner v. State,
41 S. W. 595 (Tex. Grim. 1897) and said:




                                     p.   977
The Honorable   Tom Hanna.   page 3    (H-208)




           “.   . . Judge Henderson    in a dissenting opinion
       in said case, wherein he contended that the statute
       contemplated   that the sureties should arrest the
       defendant and surrender him to the sheriff of the
       county where the prosecution      is pending, uses
       the following language:

            ” ‘This statute is intended to confer a benefit on
       the surety,   but not to entail a loss or expense on the
       state.    The object of the law, it would appear, is to
       give the surety authority,    under the statute, to relieve
       himself ,of liability under the bond: but, before he is
       relieved,   he must put the state in at least as good a
       situation as it was before. ’

           “We take it from the extracts of the case,     supra,
       that it is clearly shown by the majority of the court
       that you do not have to follow literally the wording-
       of thestatute   in question, and from the dissenting
       opinion of Judge Henderson that the surety has to         -’
       put the state in at least as good a position as it was
       before,   before the surety will be relieved.

            “We have found no authority contrary to the doctrine
       above-stated.   and we believe same is the law and against
       the contention of the appellant in this case.      The con-
       dition of bail bonds ,is to the effect that the defendant
       or principal will remain inappearance       before .said
       court from day to day and from term to term until. -
       discharged.     Now, to take the view of the appellant in
       this case, that all that is necessary    to relieve a surety
       ~onhis bond is to make an affidavit,    obtain a warrant of
       arrest and turn it over to the sheriff; if that were true,
       it strikes us it would be entirely useless.to     require any
       bond at all, because ,the defendant could go without the
       jurisdiction   of the cc&t,   leave the country,   and then
       his sureties could make the affidavit,     obtain a warrant
       and. turn it over to .the sheriff,  and no one be liable for
       the appearance     of the defendant before the court.     If
        this court should adopt such a construction      of the above




                                  pa 978
The Honorable    Tom Hanna,      page 4   (H-208)




        statutes,  it will be readily seen that there would be
        very few guilty persons out on bail who would ever
        appear before the courts of this country for trial. I’
        (271 S. W. at 919-920).

See also Apodaca v. State, 493 S. W. 2d 859 (Tex. Crim.       1973); Thompson
v. State, 335 S. W. 2d 226 (Tex. Grim. 1960).    Accordingly,     we believe a surety
may be liable for the expenses of rearrest    of the defendant,    notwithstanding
the filing of an affidavit and issuance of a warrant under Article 17.19.

    Your third question    is:

       “Where a county has paid, pursuant to the authority, of
       Vernon’s Annotated Code of Criminal Procedure,
       Article 51.10, Sec. 2, the actual and necessary       tra-
       veling expenses of an officer commissioned        by the
       Governor to rearrest      and return a fugitive from
       justice. upon whom a bond has been forfeited or
       affidavit of surrender has been filed, is the county
       entitled to reimbursement      from the bondsmen and/or
       attorneys,   as sureties,   for such expenses? ”

   Article   51.10 provides:

             “The officer or person so commissioned      shall
        receive as compensation    the actual and necessary
        traveling expenses upon.requisition   of the Governor
        to be allowed by.such Governor and to be paid out
        of the State Treasury upon a certificate   of the Governor
        reciting the services  rendered and the allowance therefor.

           “Sec. 2.   The commissioners     court of the county where
       an offense is committed may in its discretion,      on the request
       of the sheriff and the recommendation     of the district attorney,
       pay the actual and necessary   traveling expenses     of the officer
       or person so commissioned    out of any fund or funds not
       otherwise pledged. ”

     The primary obligation for reimbursing   persons who bring fugitives
from justice back to this state, rests on the Governor, although in rare
instances the county may pay the actual and necessary   expenses of the



                                     p.   979
The Honorable    Tom Hanna,          page 5   (H-208)




officer.   Attorney General Opinion V-587 (1948).    If a county does reimburse
the officer who rearrests   a defendant who has forfeited bond or whose sureties
have filed an affidavit of surrender and returns him to this State, we believe it
may look to the sureties for the expense incurred just as if the fugitive had been
found within the State.

    Your   fourth question     is:

        “In the event the bondsmen and/or attorneys are responsible
        in any of the above instances,  what expenses are reimburse-
        able? ,Here,    we are concerned with costs attributable to
        mileage,   officer’s salary, motel bills, meals and any other
        expenses incurred by the sheriff’s   department in the rearrest
        of.a de fendant. ”

     The expenses which are reimburseable         are those which are “necessary     and
reasonable”,    Article 17.08,  Vernon’s   Texas Code of Criminal Procedure,       Scott
v. State, 102 S. W. 2d 434 (Tex. Crim.     1937).   Whether a particular   type of -
expenditure ins necessary    and reasonable   in a particular case requires a finding
of fact which we are neither permitted nor competent to make.           Therefore,   it is
impossible   to give a categorical  list of then expenses which are to be reimbursed.
Attorneys General Opinion V-186 (1947).

    Your   final question    is:

        “What course of action is available to a county in the event
        the bondsmen and/or etfunqrs refuse or fail to provide
        reimbursement  for the costs involved in these rearrests?   ”

    The basic statute governing this question           is Vernon’s   Texas   Code of Criminal
Procedure,   Article 22.10. which provides:

            “When a forfeiture has been declared upon a bond, the
        court or clerk shall docket the case upon the scire facias
        or upon the civil docket. in the name of the State of Texas,
        as plaintiff, and the principal and his sureties, if any, as
        defendants; and the proceedings   had therein shall be governed
        by the same rules governing other civil suits. I’




                                         p. 980
    The Honorable   Tom Hanna,    page 6    (H-208)




         It is our opinion that a scire facias proceeding  in a bond forfeiture case may
    include any claim for reimbursement       of expenses of rearrest.   Attorney Genera 1
    Opinion C-635 (1966).     In cases where a forfeiture has not been taken (see
    question 2). we believe the county not only has available the remedy of scire
    facias but also may institute a civil proceeding to recover any expenses of
    rearrest.

                                 SUMMARY

                A county is entitled to reimbursement      from sureties
           for the reasonable   and necessary    costs of rearrest  after
           a bond forfeitureor    an affidavit of surrender under
           Article 17.19, Vernon’s    Texas Code of Criminal Procedure.
           The expenses may be recovered’        in a scire facias proceeding
           or in a separate civil action.

                                                Very   truly yours,




                                                Attorney   General    of Texas




3
    Opinion Committee




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