Honorable Wallace Shropahlre    Opinion NO. c-638
County Attorney
Travis County                   Re: The meaning of the word
Austin, Texas                       "default" es used In Sec-
                                    tion 2 of Article 17.11 of
                                    the 1966 Code oftCriminal
Dear Sir:                           procedure.
        You have requested an opinion of this office concem-
lng the time a surety will be considered to be in default on
a bail bond under the provisiona of Section'? of Article 17.11,
1966 Code of Cr+.nal procedure.
        Section 2 of th~lsArticle provides ea fol$owe:
          "Prdvldad,however, any person,who.has
       signed a8 a,surety on a ball bond and la In
       default thereon ~shallthereafter be dlequall-
       fled to sl&n as ,a surety so l&g as he Is in
       default on said bond..  It shall be f;heduty
       of the clerk of thencourt wherein,such surety
       1s In default on a bail bond, to notify ln
       writing the sheriff, ohlef'of police,.or
       other peace officer, of suehdefault."
        Sectlon~2~of Article 277 of the old Code of Crlmirial
Procedure also used the terr default In the same context as
Se&ion 2 of Article 17.11 and the requirementsof the two
prOviSions are 8Ub8tentieliy  identical. There are.no eppel-
late deCi8iOn8 of this State which construe the meaning of
the word "default" es used in Article 277 or states when a
surety is in default on a bail bond.
        In your opMon request you suggest the three follow-
ing pO88ibl~itleswhen a surety might be considered to be in
default:
       1. Default occur8 when the bond lb forfeited
          In accordem+ with ArtlCle 22.,02,V.C.C.P.
        2. Default occurs when citation 18 ls8ued
           notifyingtBe 8uretl.erthat the bond has
           been forfeited, and requlrlng them to ap-
           .peati
                and chow cause why the judgment of

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Honorable Wallace Shropshlre, page 2 (c-638)


             forfeiture should not be made final in
             accordance with Article 22.03, V.C.C.P.

        3.   Default occurs at the time when the judg-
             ment of forfeiture becomes final in ec-
             cordence with Article 22.14 or Article
             22.15, V.C.C.P., end the judgment there-
             on is unsatisfied.
        It is the opinion of this office that default occurs
only after the judgment of forfeiture Is made final in eccord-
ante with provisions of Articles 22.14 or 22.15, 1966 Code of
Criminal Procedure and the judgment thereon is unsatisfied.
       The Court in Easterwood v. Willingham, 47 S.W.28 383
(Tex.Clv.App. 1932), stated:
           "The term 'default' may be defined es a
        failure of a party to perform a legal duty."
Default Is "an omission of that which ought to be done; spe-
cifically, the omission or failure to perform a legal duty."
Black's Law Dictionary, Fourth Edition, page 505.
        It is only after the judgment of forfeiture becomes
final that a surety has a legal duty to perform. Under the
first two possibilities you pose, even though the defendant
has not appeared as required, the surety may avail himself
of the statutory ceuses which would exonerate him from any
liability on the forfeiture of~the defendant's ball if ~pre-
sented and found to be true et the show cause hearing.
                           SUMMAHY
           A surety will be considered to be in de-
        fault on a bell bond, asthe term is used in
        Section 2 of Article 17.11, 1966 C.C.P., only
        after the judgment of forfeiture has been made
        final in accordance with the provisions of
        Article 22.14 or Article ,22.15, 1966 C.C.P.,
        and the judgment is unsatisfied.
                              Yours very truly,
                              WAGGOWEB CABE
                              Attorney General of Texas




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Honorable Wallace Shropshlre, page 3 (c-638)




                             By:
                                   A8si8tedT   Attorney General

RWIQ/br
APPROVED:
OPIIVIOFJ
        COMMITTEE
W. V. Geppert, Chairmen
Kerns B. Taylor
Milton Richardson
Malcolm Quick
Edward Moffett
APPROVED FOR THE ATTOW     GRWERAL
By: T. B. Wright




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