Texas Code of Criminal Procedure 17.16 – Discharge of Liability; Surrender or Incarceration of Principal Before Forfeiture; Verification of Incarceration
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(a) A surety may before forfeiture relieve the surety of the surety’s undertaking by:
(1) surrendering the accused into the custody of the sheriff of the county where the prosecution is pending; or
(2) delivering to the sheriff of the county in which the prosecution is pending and to the office of the prosecuting attorney an affidavit stating that the accused is incarcerated in:
(A) federal custody, subject to Subsection (a-1);
(B) the custody of any state; or
(C) any county of this state.
(a-1) For purposes of Subsection (a)(2), the surety may not be relieved of the surety’s undertaking if the accused is in federal custody to determine whether the accused is lawfully present in the United States.
Terms Used In Texas Code of Criminal Procedure 17.16
- Affidavit: means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. See Texas Government Code 312.011
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Arrest: Taking physical custody of a person by lawful authority.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- United States: includes a department, bureau, or other agency of the United States of America. See Texas Government Code 311.005
(b) On receipt of an affidavit described by Subsection (a)(2), the sheriff of the county in which the prosecution is pending shall verify whether the accused is incarcerated as stated in the affidavit. If the sheriff verifies the statement in the affidavit, the sheriff shall notify the magistrate before which the prosecution is pending of the verification.
(c) On a verification described by this article, the sheriff shall place a detainer against the accused with the appropriate officials in the jurisdiction in which the accused is incarcerated. On receipt of notice of a verification described by this article, the magistrate before which the prosecution is pending shall direct the clerk of the court to issue a capias for the arrest of the accused, except as provided by Subsection (d).
(d) A capias for the arrest of the accused is not required if:
(1) a warrant has been issued for the accused’s arrest and remains outstanding; or
(2) the issuance of a capias would otherwise be unnecessary for the purpose of taking the accused into custody.
(e) For the purposes of Subsection (a)(2) of this article, the bond is discharged and the surety is absolved of liability on the bond on the verification of the incarceration of the accused.
(f) An affidavit described by Subsection (a)(2) and the documentation of any verification obtained under Subsection (b) must be:
(1) filed in the court record of the underlying criminal case in the court in which the prosecution is pending or, if the court record does not exist, in a general file maintained by the clerk of the court; and
(2) delivered to the office of the prosecuting attorney.
(g) A surety is liable for all reasonable and necessary expenses incurred in returning the accused into the custody of the sheriff of the county in which the prosecution is pending.