Untitled Texas Attorney General Opinion

THEA ORNEY GENERAL OF YYEXAS AUSTIN m.TExas

BVILL WIILSON ATTORNEY CaENERAlr July 2, 1962

Honorable Guilford L. Jones Opinion No. WW-1370 District Attorney 118th Judicial District Re: Whether an appearance or Big Spring, Texas bail bond is valid where executed by the principal in person and executed by one surety in person and as attorney in fact for the other surety and re- Dear Mr. Jones: lated question. You have asked the following questions: "(1) Is an appearance or bail bond valid where executed by the principal in person and executed by one surety in person and as attorney in fact for the other surety? "(2) Is an appeal bond in a criminal case valid where executed by the principal in person and by one surety in person and as attorney in fact for the other surety?" Article 273, Texas Code of Criminal Procedure reads in part as follows: "A bail bond shall be sufficient if it con- tains the following requisites: 'I... “4. That the bond be signed by name or mark by the principal and sureties." In Walker V* State, 6 S.W.2d 356 (Tex.Crim. 192S), the Court of Criminal Appeals considered the statutory provisions relative to the execution of bail bonds and held that the sig- nature or mark of the principal had to be made in person. The Court extended this ruling in Ex parte Meadows, 87 S.W.2d 254 (Tex.Crim. 1935) and held that where the names of the sureties on a bail bond were signed by the attorney in fact for said sureties who was duly authorized in writing to execute bail

Honorable Guilford L. Jones, page 2, Opinion No. WW-1370

bonds generally, this act did not comply with Article 273, 134 of the Texas Code of Criminal Procedure. Non-compliance made the bond void and of no effect. In Wilkins v. State, 91 S.W.2d 354 (Tex.Crim. 1936), the Court held that where an attorney in fact signed the appealbond instead of the surety in person, the bond was defective and therefore, the Court of Criminal Appeals had no jurisdiction. The Court of Criminal Appeals held in Anderson v. State, 166 S.W.1164 (1914) that the bond now required in the appeal of a case from a Justice or Corporation Court to a County Court is nothing more than an appearance bond. See also Xydias v. State, 76 S.W. 761 (Tex.Crim. 1903). In Sheppard v. Gill, 5S S.W.2d~l69 171, (Civ. App. 1933), (affirmed by the Supreme Court, 124 Tex. 603, 90 S.W.2d 563) the Court stated: V.C.P. Art. 273, subdivision 4, requires that a bail bond be signed by sureties. Article 277, C.C.P. provides that one surety shall be sufficient, if it be made to appear that such surety is worth at least double the amount of the sum for which he is bound, .m." In view of the above cases, both your questions are answered in the negative, unless such bond is executed by one surety in person and the bond is accepted and approved as is provided for in Article 277, Texas Code of Criminal Procedure and related statutes. SUMMARY

An appearance, appeal, or bail bond is invalid where executed by the principal in person and executed by one surety in per- son and as attorney in fact for the other surety, unless the surety executing the bond in person is accepted and approved, as is provided for in Article 277, Texas Code of Criminal Procedure and related statutes. Sincerely, WILL WILSON CRL:bjh Attorney General of Texas

BY Charles R. Lind Assistant Attorney General

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Honorable Guilford L. Jones, page 3, Opinion No. WW-1370

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Reeves Elmer McVey Joseph Trimble Robert Rowland REVIEWED FOR THE ATTORNEY GENERAL BY: LEONARD PASSMORE