Many criminal defendants can post bail
(pay money or use property)
to ensure a court appearance.
Bail can be forfeited if a defendant fails to show up for court.
Bail is the security given by a person to assure a defendant’s appearance before the proper court whenever required. There are five types of bail bonds: Commercial Surety (Insurance Company), Cash, Property, Personal Surety and Release on Own Recognizance. When a criminal defendant fails to appear for a scheduled court date and the court issues an Attachment for the defendant’s arrest, the Clerk of Court mails a Notice of Attachment to the defendant and surety. The defendant has 180 days from the date the Clerk mails the Notice of Attachment to either reappear in court or be arrested on that attachment to stop the bond from becoming collectible. If the defendant is not arrested or does not reappear, the State sets the matter for a Rule to Show Cause and attempts to forfeit the bond. If a surety wishes to get off a bond, a surety must either surrender the defendant in open court or at the jail. The defendant is then taken into custody and may be eligible to post a new bond.
The Bond Forfeiture Division forfeits a criminal defendant’s bond based on his/her failure to appear. There are five types of bonds: Commercial (Insurance Company/Bondsman), Cash, Property, Personal Surety and Release on Own Recognizance. When a criminal defendant fails to appear in court for a scheduled court date, the State files a Judgment of Bond Forfeiture, forfeiting the bond posted by the defendant and/or surety. The defendant and the surety will receive certified mail from the Clerk of Court, informing them that the defendant has missed his/her court date and that a judgment of bond forfeiture has been granted. There will also be a letter from the Clerk, explaining that if the defendant wish to cancel the judgment he/she must contact the District Attorney’s Office and pay a fee. A judgment of bond forfeiture can be cancelled, based on the defendant’s reappearance or incarceration, (within six months as allowed by law). A Judgment of Bond Forfeiture can be cancelled for the cancellation costs if the defendant either reappears in court or is located in jail within 180 days from the date the Clerk mails the notice of judgment. If the defendant is located in a jail of another jurisdiction, the surety/defendant, must provide a Letter of Incarceration within that 180 day period to the Court and/or the District Attorney’s Office. Furthermore, if a defendant is located in another jail, the surety must also pay the costs of extradition to satisfy the judgment of bond forfeiture. If a defendant is rearrested based on his/her failure to appear in the jurisdiction where the bond is posted, and within the one hundred and eighty days from the date the clerk mailed notice, the judgment can be cancelled. This also relieves the surety of all obligations under that bond. However, if the defendant just reappears in court and is allowed to remain on that bond, the surety is still responsible for the defendant on the bond. In the event the surety wants to get off a bond either prior to forfeiture or even after forfeiture, the surety has two options: 1) surrender the defendant in open court or 2) surrender the defendant at the jail (for a fee of $25). When a bond forfeiture judgment becomes collectible, a defendant and surety owe the amount of the judgment plus judicial interest that accrues from the date the judgment is granted. These judgments are recorded in land records. Thus, in the event a defendant or surety is trying to buy, sell, dissolve immovable property (real estate), this judgment will come up against his/her name.
The Asset Forfeiture Division initiates forfeiture proceedings against any property used in connection with a drug transaction and/or drug offense. These items can include property that is used to facilitate a drug transaction, property furnished in exchange for drugs and/or proceeds from the distribution of drugs. All of these items would be subject to seizure under La R.S. 40:2601 et seq.
How do I get my property back?
A claimant/owner/interested party must file a claim within 30 days allowed by law from the date he/she is served with the Notice of Pending Forfeiture. A claim must be in the form of an Affidavit, and it must contain specific allegations as to how the property seized was not used to facilitate the drug transaction.
If I file a claim, do I automatically receive my property?
No. The claim does not automatically stop forfeiture proceedings. The claim preserves the claimant’s interest in the property. Once a claim has been filed, the State files a Petition for Forfeiture. The Petition is then served on the claimant or his/her attorney and this starts the civil suit between the State and the property seized.
Is the forfeiture separate from the criminal matter?
Yes. The proceeding on the property is a civil proceeding initiated by the State against the property being used in connection with the drug transaction.
What happens if a claim is not filed within 30 days?
The State files an Application for Forfeiture, along with the Exhibits and requests that the Court order the property be forfeited due to the defendant’s failure to file a claim within the 30 days allowed by law.
A property owner/interest holder/lienholder has 30 days from the date the Notice of Pending Forfeiture is served to file a claim on property seized. The Notice of Pending Forfeiture states how a claim should be filed. It must be in Affidavit form, and it has to be sent certified mail to the District Attorney’s Office and the seizing agency within 30 days from the date of service of the Notice of Pending Forfeiture.
In the event property has been seized pending forfeiture, an individual can follow the steps provided on the Notice of Pending Forfeiture to file a claim or contact an attorney.
Does my bond obligation end when the defendant appears at the first court date on the bond?
No, unless the State has dismissed or refused the charges at this time. The bond obligation continues until the disposition of the case. Therefore, when someone signs a bond for the release of a criminal defendant, the bond is for the duration of the case. A disposition in a case means the case is closed either by a guilty plea, verdict from a judge or jury, or dismissal/refusal by the state.
Can a bond be reforfeited?
A bond can be reforfeited if the first Judgment of Bond Forfeiture has not become collectible AND the surety is renotified of the defendant’s next court date. In this situation, the first Judgment is able to be cancelled based on the defendant’s incarceration or reappearance within the time delays allowed by law. The surety must also receive service of the next court date.
To forfeit a bond and issue an attachment does there have to be actual service?
No. The only notice a surety will receive is the original notice on the bond, unless it is a reforfeiture situation as above. Therefore as long as a defendant is showing up for court and has shown up since the original court date on the bond, no further notice is necessary to forfeit the bond. Also, notice to attach and forfeit a bond is perfected by personal service by the Sheriff at the address on the bond OR by first class mail. Thus, the only address that is necessary to attach and forfeit a bond is the address on the bond. The address on the bond cannot be changed unless the defendant or surety file paperwork with the Clerk to change this address.
REMEMBER in the event a defendant or surety’s address changes from the address given at the jail on the bond, he/she must notify the Clerk of Court in writing. The address on the bond is presumed to be correct until the case is disposed of or a written change is made to the Clerk record.