The Surety Bond Guide in Austin TX

Table of Contents

  • What is the Law on Surety Bonds
  • Why Do Surety Bonds Exist
  • Who Really Makes Money Off of Surety Bonds
  • A History of Surety Bonds in Austin
  • How Surety Bonds Work Surety Bonds Are The Most Popular Way to Get Out of Jail
  • The Ultimate Surety Bond Scam

What is the Law on Surety Bonds?

Under the Code of Criminal Procedure, Chapter 17 is the authority on Surety Bonds. Article 17.02 defines a “surety bond” as a contract between the arrestee and the surety. A magistrate judge may authorize the arrestee be released with a personal bond under Article 17.03. This is the most common way to get out of jail. Article 17.04 specifically sets out that no surety is required.

Article 17.033 clarifies what will happen in the case if there is no probable cause found by the magistrate with twenty four hours of arrest for a misdemeanor. It explicitly states that if the arrestee is unable to pay cash or surety bond, then he must be released on a personal bond. In addition, a judge must release a person under a person if he similarly cannot afford cash or surety for a felony if the judge has not found probable cause within forty eight hours.

Article 17.05 states that the jail can accept the surety bond. Article 17.06 states that corporations can be surety securing the bond obligation for the court. Article 17.07 specifies that the surety bond company shall file their power of attorney naming who is in charge of posting bonds for them in Austin. They are allowed to limit the scope of their authority as with any other power of attorney document. The law reiterates that any surety bonds posted by the bondsman are binding on the surety themselves. Rarely are there redundant provisions in the law, but they wanted to make it crystal clear this is a very serious legal matter.

Article 17.08 states the requirements of a surety bond. First, it must be made out to the State of Texas. Second, the arrestee and the surety must promise that the person accused will go to court to face the allegations. Third, it must state what they are being charged with, a misdemeanor or a felony. Fourth, the surety must sign the bond and jot down their address. Fifth, the law states that the bond must state the courthouse and the court date when the defendant must appear. It is nice to say that when the case is closed, either by conviction or dismissal, the surety is dissolved from their responsibilities. Lastly, the statute states that if the arrestee doesn’t show up to court, then the surety needs to pay for the sheriff’s and police officers the fair cost to re-arrest the delinquent defendant.

Article 17.09 protects a defendant in the course of their case from excessive bail. This is common among lawyers who advocate in court for decreasing bail for violent offenses. The main argument is that similar cases had lower bond amounts, or other cases were less serious and had lower bond amounts. Or that lowering the bond amount would still secure the defendant’s appearance in court. Or the arrestee is not a flight risk. And he is not dangerous to the community. The judge in the case is very powerful in this respect. Additional safety measures prevent a second bond amount to be required for one case. This makes sense because it would ride the line between cruel and unusual punishment even in the pretrial stage.

Article 17.10 lays out the requirements on who can be a surety. You must be an adult who has not been convicted of a misdemeanor involving moral turpitude or a felony. A crime of moral turpitude can be anything related to theft or fraud. It implies that someone is dishonest with money and can’t be trusted for important financial matters. Article 17.11 expands on what is required for a surety. It says that your assets must be worth at least twice the bond amount. And it says that you cannot write any additional bonds if you are in default with at least one bond. This is a very fair rule. A bank wouldn’t allow a borrower to take out another loan if they can’t pay the first mortgage. In the same line of reasoning, they are requiring the surety that they don’t owe the county any more before they take on more debt. Article 17.13 requires the sureties to take an oath promising that they can pay the bond amount from their own property if it comes down to it.

Article 17.151 is the defendant’s best friend. This guarantees them the right to get out of jail if the government is not ready to proceed to trial. The judge must first reduce the bond amount required. And if the person can’t afford that either by paying themselves or through a surety bond, then the judge must release them under a personal bond. This is very powerful indeed and reflects the power of the person’s right to a trial under the federal constitution. For a Class C Misdemeanor, the time limit is a week. For a Class B Misdemeanor, the time limit is half a month. For a Class A Misdemeanor, the time limit is a month. For a Felony, the time limit is three months. Of course, other offenses currently charged are taken into consideration and all pending charges must qualify for pretrial release.

Article 17.16 lets the surety off the hook if they get the defendant to a court or to the county jail. If the arrestee is in another county jail, then the surety must file an affidavit to the sheriff’s office and to the prosecutor’s office telling them the accused is in outside custody. However, detention by Immigration and Customs Enforcement does not qualify if the sole purpose is to decide whether the defendant is a lawful resident. Once the jail verifies this information, they must tell the judge, who in turn is required to issue an arrest warrant, commonly called a capias. However, the surety must pay for all fees associated with the transportation of the defendant back to the local county jail.

Article 17.19 also allows the surety to file for a warrant with the court. This is what allows bounty hunters to get people back to jail, something normally the only sheriff officers have the right to do. Citizen’s arrest is also a related topic that is making headlines, especially after the Ahmaud Arbery shooting by a former investigator for the district attorney’s office.

During magistration, the judge can set any conditions of the bond they see fit to protect the community and to ensure the defendant appears for court dates. If a condition is violated, Article 17.40 provides that the violation only needs to be proved by a preponderance of the evidence, or more likely than not. Once the judge finds the violation occurred, the surety bond will be revoked and an arrest warrant will be issued right away, most times for double the original bond amount. After the accused is back in jail, the surety is relinquished of any liability at that point. This is a sneaky way for them to charge the defendant’s family again for another surety bond all over again. Repeat customers are the dream of any business.

Why Do Surety Bonds Exist?

Surety bonds were started up in the west coast by mob bosses in the early 1900’s. These were tools used for people to return to work fast. This is still the case to this day.

During this era of exploring the western US, this was a very individualistic pursuit for many. And where they were working, they didn’t have family members or friends or anyone close around for that matter. If someone got arrested by the police, then they didn’t have anyone to lean on to help them pay the full bond amount. In addition, bond amounts started getting more expensive, out of reach for the normal working-class person. These two circumstances gave rise to the surety bond fee that people pay to get out of jail.

There were alternatives that could work equally as well. But this was a highly profitable business for those involved on the surety end. They weren’t gonna let anything stop them from going out of business. There were a few states that banned this business altogether because there was such a high risk of succumbing to corruption.

There were two events that spawned higher bond amounts. The first was defendants who were released on bond during the pretrial phase of their case. They committed serious crimes when they were out on bond. This made judges consider the safety of the community in the bond decision process. Furthermore, there was the perception during this time that drugs were bad — really bad. So in response, judges raised bond amounts for people accused of such possession charges. In combination, the result was high bond amounts.

Surety bond businesses were happy. Higher bond amounts meant they made more money. During this same time period, courts were funding their own departments to advocate for people’s releases for low-level offenses. The surety bond businesses wanted to put a stop to this activity. So they formed the American Bail Coalition.

This powerful group partnered up with the American Legislative Exchange Council, a very strong lobby group. Their goal was to eliminate the spread of pretrial services in America. This was successful. Most bondsmen operate individually. But for the most part, big surety bond businesses back them.

Surety bond businesses indirectly influence politicians who make decisions on minimizing the rules and regulations that apply to a bondsman. Of course, they want higher bond amounts too because that helps their bottom line. And they want to reduce pretrial service funding and make it more difficult for arrestees to qualify for a personal bond.

Who Really Makes Money Off of Surety Bonds?

Most people are in the pretrial phase of their case. These are people who have pled not guilty and many of those people will want to assert their constitutional right to request a jury trial by their peers. Yet most people can’t afford to pay the entire bond amount in cash. The bond system in Austin is complicated and there are many options for people to get out of jail along with pros and cons for each, but most people think they must pay a surety bond if they want to fight their case from the outside.

Traditional surety bond services are for car and home insurance. If something were to happen like a flood or hurricane, then the catastrophic event happened that is covered under your policy, and the surety bond business will pay for the damages and to fix your car or house. The surety bond business is the insurer and the first remedy.

In contrast, the surety bond service is backwards. When a family member co-signs for the surety bond for Johnny Smith who is in jail, they are promising they will pay for the entire bond amount if Johnny doesn’t show up to court. If Johnny gets re-arrested or shows back up to court again, then the bondsman can withdraw as their surety citing the reason that Johnny failed to meet his end of the bargain of the contract.

Now, if Johnny doesn’t show up to court, then the family member has to pay. The bond business will sue the family member in the civil court for the surety bond amount. This will cause the family’s credit score to suffer and is an incentive to pay back the bond agent. The bond agent is required to store money in a build-up fund, in the event that something like this happens.

If the family member is insolvent, then the bond agent has to pony up the money to the county. But the bondsman is the gatekeeper for who they let co-sign, and people are required to have collateral, good credit, or a good job to even qualify for a surety bond. Collateral is the most secure form of property protecting the financial liability of the bondsman.

The likelihood that a bondsman will deplete their build-up fund is very low. Because they make huge profits off of everyone that goes to court. Most bond business owners drive nice cars and live in nice houses, so the business is pretty stable.

Worst case scenario, if the bond agent loses their license and goes out of business, then, and only then, does the surety bond business backing the bondsman have to pay the county for the surety bond amount. This is a good business model to be the last one who has to pay.

A History of Surety Bonds in Austin

The main concern of the judge releasing an arrestee from jail is whether or not they will skip town and not come back to court to answer the charges against them. This is especially a serious concern the more serious the charges are.

Here is a brief overview of the history behind surety bonds.

At the very beginning of the criminal justice system in America, people who were arrested could ask friends and families to promise to pay a bond amount if they did not show up to court. But over time, there were fewer and fewer people who could get family and friends to act as their insurance policy if they didn’t go to court. This is understandable because this is a lot of personal liability for someone else’s case.

The rationale behind a bond amount and having people pay upfront for their freedom is negative motivation. If you don’t come back to court, then you lose the money you paid for your freedom. The hope is that most people will not want to lose their money, so they come back to court.

The pure form of a bond amount is a cash bond. This is the person (or their family or friends) paying the entire bond amount in full upfront before the person is released from jail. You don’t need a surety because your money is paid in full to the jail. There are no middlemen involved in this system. This is the cheapest way to get out of jail because if you go to all of your required court dates, you get the money back (minus a small administrative fee).

Most people can’t afford to pay thousands of dollars upfront unless they sell their home or valuable assets. So surety bonds are a mix between paying partial money upfront and signing the rights over your collateral so it can be sold to pay for your full bond amount if you just disappear and don’t show up for court. That hybrid model is called a surety bond. Surety bonds are exactly what they sound like. There is an insurance business that insures the full surety bond amount if the person doesn’t come back to court. Most surety bond companies charge between 10-20% of the surety bond amount and require family or friends to cosign or sign over collateral.

The caveat is the surety bond can meet their obligation to the court if they pay the full surety bond amount, which is a lot of money, or return the person to court. This is why there are so many TV shows on bounty hunters. These people return people to court. They go to the person’s house or place of work, and call the cops on them, or arrest them themselves and take them to jail.

The business model of the surety bond company could not work if they paid 10 times the amount they were paid for their service. If they had 1 person out of every 10 that did not show up to court, that would wipe out the profit for 10 other people they got out of jail. They maximize their profit this way, by bringing the person back to court. Most people on the run get arrested anyway on their own, so this satisfies the return to custody as well.

Judges set the surety bond amounts too high so that people couldn’t get out of jail. This was a form of financial oppression for the poor. So people protested. Wouldn’t most people that were arrested come back to court on their own anyways? This is exactly what got written into the law in 1966. The Bail Reform Act that passed that was a big step in the right direction. “Any person charged with an offense …. shall …. be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required.” But it still allowed for the judge to set cash bond or surety bond to be required as a condition of release.

In the 70’s and 80’s, people were scared in their communities due to the increasing violence that was occurring. The Bail Reform Act of 1984 let the court use flight risk or public safety risk as a reason to keep someone in jail. This is still the system that is used today in Austin. Judges denying people’s release on a Personal Bond due to being a flight risk or a public safety risk. And they sit in jail because they can’t afford a cash bond or surety bond. But things have improved in 2020 because Austin Pretrial Services is now interviewing people with a Financial Workup that the judge can see and take into consideration when setting their surety bond amount. So if they do not qualify for a Personal Bond, then they can still afford to get out of jail.

How Surety Bonds Work

There are different ways to get released from jail after being arrested. When it comes to Austin bonds, a surety bond is one of these options. With a surety bond, the surety company secures the bond amount between the arrestee and the Austin Court. The bondsman is the middle man and will charge a percentage of the surety bond amount that must be secured before release. If the arrestee doesn’t show up to court and the bondsman doesn’t pay the bond amount either, then the surety bond company is liable for the full bond amount.

Surety bonds are legally binding contracts, essentially insurance policies, among the arrestee, the court, the bondsman, and the surety bond company. If a defendant skips court and the bondsman neglects to pay the bail amount, the state can go to the surety bond company to get what it is owed. In Austin, bondsman can’t legally write bonds unless they have a contract with a surety bond company. In exchange for a contract, the surety bond company charges the bondsman 10 percent on each. So for every $5,000 bond, the bondsman gets $500 and gives $50 to the surety bond company.

If a court date is missed, Austin bondsman will try to track down defendants before paying the bond amount to the court. The court can give them time to do this. In Texas, bondsman can hire bounty hunters to track down the delinquent arrestee. Bounty hunters get paid a percentage of the bond amount that otherwise would have to be paid to the courts.

Surety bonds disproportionately discriminate against minority groups and people in poverty. These two groups are historically disenfranchised, and the surety bond is no exception. Minority groups are targeted by police and as a result, are arrested more commonly than their American counterparts. The wealth gap is exposed especially when someone is incarcerated. Their family members can either post their surety bond amount or they are unable to. Families that can post their loved one out of jail increase the chances that their loved one can beat their charge or get a much better result drastically.

Unfortunately, some people’s families can’t scrape together the money to get them out on a surety bond. The result is people take plea deals to get out. The choice between freedom and fighting their case becomes a hard-pressed choice for most of those who are incarcerated. The willpower to fight their case diminishes quickly. The only thing on their mind is just to get out of jail as quickly as possible. By any means necessary. People stop thinking clearly about their long term consequences and how their future might be negatively impacted by a criminal conviction. They only see short term solutions. Unfortunately, most people who can’t afford a surety bond plead guilty to get the time already served in jail as punishment.

Surety Bonds Are The Most Popular Way to Get Out of Jail

This is made prevalent by movies and even passed as common knowledge. When people are in fear, they are more inclined to view solutions as binary. Black and white. This is easier for the brain to process fight or flight situations into choosing one option over another. Stay in jail or pay a surety bond for freedom.

Surety bonds play on that perception that surety bonds are the only way to get out of jail. Rarely do these insurance agents tell their customers who are friends and family of the person in jail that they have options, including more cost effective ways to get out of jail, including verifying their loved one’s information to Pretrial Services to facilitate an approved bond so they can get out for free. This is a paid service by the county, so why not take advantage of it?

Additional cheap ways to get out of jail is to post a cash bond. It’s simple. You go to court, you get your money back. You skip court, the county keeps your money. Obviously, this incentivizes people to show up to court for minor charges where their money is more important than the possible punishment, which can be very low.

The last cost-effective way to get out of jail is to hire an attorney. If you get arrested and accused of a crime, most people would hire counsel to represent them. Everyone knows if they get injured, they go to a doctor. And if they want to get out of jail, they should go to a surety bond. And if someone gets arrested, they should go to a lawyer.

In Austin, there is a unique mix of the last of these two. An attorney can both help you get out of jail AND help you with your case. The reason this is cost-efficient is the lawyer applies the amount you would have paid to a surety bond towards your legal defense. For a DWI, the surety bond amount could be $500, and if you pay them, your money’s gone the moment you step outside of the jail doors. But if you pay a lawyer, that $500 will get you out of jail too, and also be applied towards your legal fee. If they charge you $3500 to represent you, then you just paid 15% of your entire fee. This saves you money. The only downside is you picked counsel based on a rushed decision process. The lawyer who helps you avoid paying a surety bond might not be the best attorney for your defense in court. But you are not stuck with a lawyer if you find a more qualified one. All you have to do is file a motion to substitute counsel and all is well.

In conclusion, there are many alternative ways of getting out of jail without using a surety bond. The top two ways are to hire a lawyer or to pay a cash bond.

The Ultimate Austin Surety Bond Scam

You may think getting out of jail with a surety bond is the way to go. Pay a percentage of the bail bond amount, and that’s all you have to worry about. Unfortunately, that isn’t the end of the story. Not only can a surety bond from an Austin bondsman cost 10-15% of your bond amount, but there is also a $60 processing fee in addition to the premium. There are some other potential fees that you should be aware of before you make the decision to get released on a surety bond.

Something to keep in mind is that a surety company is a business. While their goal, like most businesses, is to make money; they also have to pay their employees, rent and utility bills, and advertising costs. They have to pay fees to get licensed and fees to insurers to back their business. It’s highly doubtful that the company you get your surety bond through is going to eat these expenses. What they will do, however, is pass them along to their clients.

Before you get scammed by a surety bond company, find out if the following additional fees will be tacked on after you pay the premium of a surety bond. Some possible fees include a travel fee (depending on the time of night they have to come to the jail), a credit card processing fee (which could be very high depending on the premium), or a co-signer fee (if you want to change the co-signer while you are out on a surety bond).

If someone posted the surety bond for you, then for whatever reason they wanted to back out, that could result in a cancellation fee. If your surety bond company needs to go to court for you for some reason, expect a fee for that too. If you are a higher risk client, you may have to check in with the surety bond company, and it’s safe to say that probably won’t come for free. And if you don’t come back to court, your surety bond company will do what they need to do to find you, then charge you for it afterward.

An alternative way of getting released from jail is through a lawyer. If you can’t get out on a personal bond (the free way) on your own, an attorney can help you get one. This is something to think about before you decide to get a surety bond. A lawyer won’t charge you the definite $60 processing fee that a surety bond company will charge. And a lot of the times, the fees that you pay a lawyer to help you get released can be carried over to the fees they charge to represent you. And this representation is a must when it comes to your criminal case.

If calling a surety bond company to help you get released from jail is still an option you want to pursue, make sure you do your due diligence and ask about all of the fees associated with a surety bond before you sign a contract. Being arrested is hard enough as it is, you don’t want to get tricked by a surety bond company to make it even worse.