Bail bond system rife with controversy about preferential treatment

Posted Monday, Apr. 02, 2012

By Yamil Berard

Third of three parts

Attorney-bond agent Jim Shaw is glad to tell you why he does not have to make good on the $100,000 bond for a client who skipped out nearly nine years ago.

When the bond forfeiture hearing was set, Shaw asked for proof that his client, Jose Arevalo, hadn't shown up in court. By law, the court bailiff must call out the suspect's name in the hallway outside the courtroom three times.

Shaw says the roll call didn't happen, and the county litigator could not prove that it did.

So, Shaw said, he was released from the liability.

"The judge entered a judgment saying this bond is discharged under section something ..." Shaw said.

The case is notorious around the Tarrant County Courthouse -- and not only because Arevalo, suspected of drug dealing, is still on the loose, or because District Attorney Joe Shannon disputes whether Shaw got a favorable judgment.

Bail bondsmen point to it as an example of how attorneys who write bonds can wiggle out of paying forfeitures, either because of legal maneuvers or because of unfairness in the county's bail bond system.

Bail bondsmen want all bond agents to play by the same rulebook and want the county bail bond board and judges to blow the whistle on those who don't.

"If you write bonds, you gotta pay the fiddler. You've got to pay it," said bail bondsman Ronnie Long, president of the Fort Worth chapter of the Professional Bondsmen of Texas.

Chief among their complaints is that a handful of attorneys tend to manipulate the rules on the county payment schedule on forfeited bonds. The schedule allows bond agents to get cut-rate deals on bond forfeitures if they settle up fast when their client goes missing. But after 270 days, state law says the bond agent shall pay the full amount on felony bonds.

Long and others say some attorneys get passes that are not permitted under the schedule.

"It's not fair for a lawyer to get a different schedule than we do," he said.

That calls into question whether judges and county officials favor some bond agents, whether they are attorneys or bondsmen, the critics say.

"You wonder about the fairness of the system. Is it the good ol' boy system?" said Mark T. Holtschneider, general counsel for a surety bond company in Maryland. "If it is not fair, it is not fair to the people getting the bonds, not fair to the criminal justice system and not fair to taxpayers."

Knowing how they can work the system, some bond agents don't bother trying to find suspects who jump bail, Long said. They could be in Mexico, Canada, Bora Bora -- who knows? The bond agents don't care; they wait for the suspect to return and get re-arrested, he said.

Attorneys who write bonds say the dispute is about competition, and at a recent meeting of the county bail bond board, they confronted County Commissioner J.D. Johnson, the board's chairman, to say that all the griping is the result of bondsmen losing business.

The attorney group, which included Shaw, compared it to a battle of the lions versus the hyenas.

"The bail bonds people are just jealous and greedy that their pie is getting cut smaller and smaller," Shaw said. "The pie is only a certain size."

An edge in deflecting forfeiture judgments

Bondsmen say that Shaw is among a handful of attorney-bond agents who have a track record of not having to pay full amounts on forfeited bonds -- a golden child, they call attorneys like him. Shaw had gone years without payment on some bonds, then in 2010, he paid $190,793 on eight forfeitures, some of which dated back more than four years, county records show.

Bondsmen said the payments came after several of them took their grievances about inequities to Shannon.

Shannon said that attorneys and bail bondsmen equally try to manipulate the county's policy, in various ways. At times, bail bondsmen have hired attorneys to work the system.

His office also points out that judges make the ultimate decision in what bond agents must pay for forfeitures.

An informal survey by the Star-Telegram indicated that attorneys may hold somewhat of an edge in being able to deflect bail bond forfeiture judgments that demand full payment in felony cases.

Attorneys are ordered to pay full judgments in about 17 percent of cases, while bail bondsmen paid in full in about 22 percent of cases, according to a review of more than 500 felony cases over the past three years in which suspects were missing for more than 270 days. In cases where the defendant is eventually found, bond agents may have to pay only court costs, interest and various fees.

Johnson said he isn't qualified to determine whether favoritism is occurring. But he said he wants an even playing field.

Attorneys may have an advantage over bail bondsmen because of their courthouse connections, which could help them to try to win sympathy from judges, some bondsmen say.

But attorneys aren't the only ones working the sympathy angles, said Mark Scott, an attorney-bondsman. Many bail bondsmen also try to schmooze, plead, beg and cajole.

"It's not unusual to see bail bondsmen roaming the halls in the back," Scott said. "They take it upon themselves to be pretty friendly with everybody."

Attorneys may gain advantage by using the legal process to drag out or contest forfeiture hearings, as Shaw did.

Shannon said such tactics don't mean that Shaw or any other attorney is a golden child.

Shaw himself says he's more a thorn in the district attorney's side.

The Arevalo case is an example.

While Shaw says the judge, then-state District Court Judge Elizabeth Berry, discharged the bond, Shannon's office says that the bond was first declared insufficient in 2004, then sat in limbo until a bond forfeiture was declared in June 2007.

At that point, Shannon said, the judge made a clerical error. That made her declaration of the bond forfeiture invalid because she did not also set the hearing date.

"She never intended to take him off the bond," Shannon said.

A second bond forfeiture lawsuit in the case is being reset for May, he said.

"He's doing his lawyer thing," Shannon said, referring to Shaw. "They try every legal technicality they can to avoid paying."

The bigger the dollars, the bigger the fight, First Assistant District Attorney Marvin Collins said.

Writing bonds and defending the client

Bondsmen said that attorneys willing to bend ethical rules come out even further ahead when it comes to competing for business. Bondsmen raised a ruckus about a Fort Worth attorney who was requiring bond clients to hire him as a legal representative without making that clear when the defendant bonded out.

The bail bond board revoked the attorney's bond privileges.

Attorneys say that shrewd bondsmen are trying to use that single case in a strategy to drive attorneys out of the bond market. The bondsmen sought a rule that would have required attorneys to get written consent to also represent clients before they bonded them out of jail. What they got was a rule that added language to the bond document making clear that the client was hiring legal representation as well.

While there may be pitfalls for attorney-bond agents, they can serve their clients very well, supporters say.

"It gets done down there [at the courthouse] every single day, and most lawyers do it very well," said Atticus J. Gill, a criminal defense attorney on the county bail bond board. "There are plenty of lawyers who write bonds that I'd be comfortable sending someone in my family to write the bond and do the criminal case as well, without question."

But critics said it is impossible to assure that ethical dilemmas won't come up for the attorney-bond agent. They say that's why most states don't allow attorneys to write bail bonds or severely limit their ability to do so.

"Texas is one of a kind," said Dennis Bartlett, executive director of the American Bail Coalition, the nation's largest group of commercial bonding agencies. "It's a very unusual arrangement."

The No. 1 concern is that attorneys will compromise a rudimentary ethical standard: to zealously advocate for a client.

If a defendant doesn't show up for court, leaving the attorney-bond agent on the hook for the bond, the attorney may have to withdraw from representing the client.

That's because when the defendant disappears, an arrest warrant is issued. Then the attorney has a client on the loose, in defiance of the law, and the attorney is supposed to turn him in while also being his advocate.

Gill said that's "a position that is not in the best interest of your client."

Judge Timmie White of the Tarrant County Magistrates Courts said that over the years he has repeatedly seen bail agents -- both attorneys and bail bondsmen -- dupe ambivalent clients to get them to court. Sometimes, the clients are told to appear to sign a document to dispense a charge. But when they show up, a bailiff handcuffs them and leads them to jail.

Or say an attorney is representing a client and hears from a relative that the guy is about to jump bail. That sets in motion all kinds of dilemmas for an attorney-bond agent.

"You've got somebody that you think might run, and your job is to defend him," White said. "Your loyalty is divided trying to do what's best for him. ... [But] you're scared he's going to run, and [you] may lose $5,000 or $10,000."

There are other issues as well with attorney-bond agents, critics say. For example, the attorney who bonds a client out of jail for a DUI might not have expertise in defending that kind of case. And a state bar ethics opinion says that it's wrong for an attorney-bond agent to stipulate to clients that if they skip out, the attorney will be authorized to enter a no-contest plea to the criminal charge.

White said the tricks of the bail bond business may not be for everyone. That's a lesson he learned when he was an attorney in private practice and decided to write bail bonds.

His first client: a prostitute.

He bonded her out. She gave him a fake name and a fake address.

"She got out of jail, laced up her tennies and I never saw her again," White said. "In all my life, I still haven't seen her."

He was forced to pay a $500 bond forfeiture laced with unsolicited wisdom from an amused judge: "You just learned your first lesson as a bail bondsman: You never bond hookers."

After that, White wrote a limited number of bonds, but only for the honestly employed.

"I always felt the people best at keeping up with the defendants were the bondsmen," he said.

Yamil Berard, 817-390-7705

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