A New Frontier
On this day, 17 years ago. The El Paso Court of Appeals held that not all “split bonds” are invalid in Frontier Ins. Co. v. State, 64 S.W.3d 481 (Tex. App.—El Paso 2001).
In the case, a defendant charged with possession of between 50 and 2,000 of marijuana. A magistrate set bail at $40,000, but set a $20,000 surety bond and a $20,000 personal bond. The defendant posted both bonds. Later, after the defendant did not appear for trial, both bonds were forfeited. The surety appealed the forfeiture saying that split bonds were invalid. The Court of Appeals held that the “split bond” was not invalid pursuant to statutory requirement that Defendant be allowed to make cash bond in lieu of surety bond.
The Court reasoned that while personal bonds and bail bonds are “distinct undertakings,” they were no mutually exclusive and incompatible. The Court was not persuaded by an Attorney General Opinion stating that a split bond was invalid. In Opinion No. JC-0215 (2000), the Attorney General one of the central arguments against a split bond was that the portion that required backing by a surety precluded the option of the defendant posting cash-which violated Art. 17.02 of the C.C.P. The Court, however, found that, in Frontier, nothing prevented the defendant from posting cash in lieu of surety. Likewise, the Court was not moved by an argument that personal bonds and surety bonds were incompatible because a personal bond leads to release “without sureties or other security” under Art. 17.03, C.C.P., and a bail bond does require security.
Keep in Mind
1. This Split Bond is not a Differential Bond
Bonds are found to be illegal when they are differential. Sometimes the term “split bond” is used interchangeably with “differential bond.” They are distinct. In fact, Frontier, has only been cited one time, and it was distinguished by In re Tharp, 251 S.W.3d 598. In Tharp, a differential bond was invalid because a trial court set bond in which a surety bond was 10 times the amount of the cash bond.
2. The “Personal Recognizance Bond” Misperception is Widespread
In light of the recent article on personal bonds in The Recorder (which I blogged about here), it was very interesting to see the Court refer to a $20,000 personal recognizance bond. Remember: that can’t exist. A person released on his or her own recognizance does not provide any security that they will show up for court–rather, they are merely recognizing their obligation to later appear in court. Personal bonds, on the other hand, are forms of security. It is not just a promise, but rather it is a person agreeing to be personally responsible for the bail amount set by the judge or magistrate should the person later fail to appear in court.
3. Your Mileage May Vary
Reasonable minds may disagree—in this case, the Court disagreed with the Attorney General. Then, the court in Tharp distinguished its matter from Frontier. The use of split bonds may not fly in your jurisdiction. Remember, if we are requiring a bond (other than personal), we generally cannot require a cash only bond (see Checklist 1-1 of TMCEC Bench Book). We are setting bail at the amount we think reasonable, and then the defendant can choose how they will post bail bond (cash or surety).
Let me know your thoughts!