Sponsored by the Judicial Education Center and
The New Mexico Municipal Court Clerks’ Association

I. General Bail Information

Sources of Law: The following articles cover the bail bond issues and provide forms for use when a person is released from incarceration either on his or her own recognizance or with money.

Article 3 Bail

Article 51 Bail Bond Company Licensing

Article 4 Rule 8-401- 407 Municipal Court Rules of Criminal Procedure

Article 3 Rules 9-302 - 311 Forms

II. Definitions

Bail Bond: A written agreement executed by the defendant or another surety that the defendant will appear as required those persons (called sureties) must pay to the court the amount of money specified in the order fixing bail. This may be cash, surety, money order, check or property.

Cash Bond: the defendant deposits with the court the amount of bond money set by the court.

Appearance Bond: defendant is released on a written promise to appear. If defendant fails to appear, the amount of bond must be paid to the court.

Surety Bond: for surety bail bond, this is accomplished by depositing, in lieu of cash or other property, a bond or bond certificate which guarantees payment of the amount of the bail bond in the event the person charged fails to appear when required by the court.

Released Own Recognizance: defendant is released on a written promise to appear. No bond is required. Conditions of release are set.

Surety Agent: an individual appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings and who receives or is promised money or other things of value.

Property Bondsperson: a person who pledges United States currency, United States postal money orders or cashier’s checks or other property as security or surety for a bail bond in connection with a judicial proceedings and receives or is promised money or other things of value

Solicitor: a person employed by a bail bondsperson for the purpose of assisting the bail bondsperson in presenting the defendant in court when required, or to assist in the apprehension and surrender of defendant to the court or keeping the defendant under necessary surveillance, and to solicit bail bond business, to sign property bonds and assist in other conduct of the business as authorized by the employer bail bondsperson.

Forfeiture: if the defendant fails to appear as required, the judge may issue a bench warrant and declare a revocation of the bail bond or appearance bond.

Conditions of Release: An order releasing the defendant from custody stating conditions to be followed from the time of release to the time the matter is heard by the court.

Release Order: The form used to notify the defendant of the time to appear in court, the amount of bond, and the conditions the defendant must follow after release from custody. There are three different release forms: "Order Setting Conditions of Release and Appearance Bond" Form 9-302A; "Order Setting Conditions of Release-Bail Bonds" Form 9-303; and "Release Order and Bond" Form 9-302B.

III. Methods of taking or posting bail

If bail is required in a criminal case (in the event the defendant is not released upon his/her own recognizance), it can be posted in one of the following ways:

1. The defendant may post the bond with cash, a personal check, a cashier’s check, or a money order. The court may, by local rule or written policy, determine which of the above payment methods are acceptable.
2. A paid surety (bondsperson) may post bond for a defendant. The following are rules requiring the surety to provide the court with proper forms:

1. There are documents a bonding company must file with the court prior to posting any bonds in the court.

1. Power of attorney for the amount of the bond for the defendant.
2. For property bondspersons, a current list of all outstanding bonds, encumbrances and claims against the property each time a bond is posted, using the court approved form. (see form 9-305)
3. A bail bond form, which conforms to the Supreme Court form 9-304.

V. Setting the Bond

A. The amount of bond required is not limited to the potential amount of any fine to be imposed for the offense charged. The standard used in setting a bond amount is that the amount of the bond must be reasonable in relation to the offense charged and the factors set out below (Municipal Benchbook 3.3-4)

1. The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
2. The weight of the evidence against a person;
3. The history and characteristics of the person including:

1. the person’s character and physical and mental condition;
2. the person’s family ties;
3. the person’s employment status, employment history and financial resources;
4. the person’s past and present residence;
5. the length of residence in the community;
6. any facts tending to indicate that the person has strong ties to the community;
7. any facts indicating the possibility that the person will commit new crimes if released;
8. the person’s past conduct and history relating to drug or alcohol abuse, criminal history and record concerning appearance at court proceedings; and
9. whether, at the time of the current offense or arrest, the person was on probation, on parole, or other release pending trial, sentencing, appeal or completion of an offense under federal, state or local law;

1. the nature and seriousness of the danger to any person or the community that would be posed by the person’s release; and
2. any other facts tending to indicate the person is likely to appear

(Rule 8-401B)

B. The judge may approve a bond schedule for use by the designee in determining the amount of bond a person should be required to post. The judge may appoint a designee to contact in his/her absence, to increase or decrease the amount of bond on the schedule depending on the circumstances noted above.

VII. Conditions of Release

A. Setting the Conditions of Release. The judge or designee should enter an order at the time a defendant is released specifying that the defendant’ release is subject to certain conditions. These "conditions" like bail, are meant to ensure a defendant’s appearance and/or the safety of the community. Conditions of release can be found in forms 9-302, 9-303 and Rule 8-401 ( C ). The judge may design any condition of release that is believed to be reasonably necessary to ensure the defendant’s appearance or to protect the safety of a certain person or the community as a whole. (Municipal Benchbook 3.3-5)

B. Reviewing Conditions of Release. The judge, at any time, may review the conditions of release for the defendant and amend the conditions as he/she sees fit. There may be several reasons for reviewing and amending the conditions of release; for example: the defendant is unable to raise the amount of bond for release or the defendant has violated the conditions of release.

If the defendant is unable to meet the conditions of release, he/she may request a hearing, through a motion to the court, and appeal to the judge for new conditions of release, which may include reducing the bond. (Municipal Benchbook 3.3-7 & 3.3-8)

C. Special Conditions
The court may, by local rule, adopt special conditions of release or hold of a defendant arrested for specified offenses.

1. Intoxication Sobering Period
A defendant arrested for DWI can be held for a specific time period or until the person’s BAC reaches a specified level.

2. Domestic Violence Cases

1. No bond cooling off period. The judge may require that a defendant charged with a Domestic Violence related charge may be prohibited from posting bond for a certain amount of time to allow the defendant a cooling off time. In addition, this allows the victim time to remove her/himself from the home.
2. No contact condition. The judge can order that any defendant arrested on a Domestic Violence charge has no contact with the victim until the defendant is arraigned. At the arraignment, the judge will review the conditions of release.

D. Appeal Bonds

1. If a defendant has posted either a cash or surety bond and files a notice of appeal within 15 days after judgment, the judge should hold the posted bond until the appeal is heard by the district court. A copy of the bond receipt should accompany all information forwarded to the district court.
2. If the defendant has not posted a bond, the judge should set an appeal bond amount sufficient to secure the appearance of the defendant at the district court. This may be the amount of the fine and fees levied at sentencing or any other amount that the judge determines sufficient to insure the defendant’s appearance.

VIII. Accepting a Bond and Conditions of Release

A. Accepting a Surety Bond

1. Bondsman has to present documents noted in Bail Bond Information section.
2. Bondsman must be on approved bonding list.
3. Bondsman must complete form 9-304 (Bail Bond) & 9-305 (list of encumbrances and claims) for each defendant.
4. Complete the Bail Bond Release form 9-303 should be completed for each defendant released on a bail bond. The release order should include any reasonable conditions of release and a date and time for a defendant to appear in court.
5. If the defendant violates the conditions of release or if the surety asks to be released on the bond, he or she can be brought back into court at which time the judge can revoke the conditions of release or set new conditions of release.

B. Own Recognizance, Unsecured or Third Party Responsibility

1. Release on personal recognizance should only be done in those cases where defendant has sufficient ties to the community such as a long-term job, owns property, or family ties. The person should have a fairly clean criminal record with no history of failure to appear and agrees to the checked conditions of release on form 9-302.
2. For an unsecured bond, no bail is required provided that a defendant executes an unsecured appearance bond and agrees to the checked conditions of release on form 9-302.
3. Defendant may be released to the custody of a third party. That person must agree to supervise the defendant and assure that the defendant appears for all court appearances. No bail is required provided that a defendant executes an unsecured appearance bond and agrees to the checked conditions of release on form 9-302. Third party and the defendant should sign this form.
4. If the defendant violates the conditions of release or if the third party asks to be released on the bond, he or she can be brought back into court at which time the judge can revoke the conditions of release, set new conditions of release, or set a bail bond and then the defendant may be taken into custody until the bail bond is posted.

C. Accepting a Cash Bail Bond

1. Posting a cash bail bond is accomplished by depositing an amount of cash equal to the bail as set by the court or is designated in the bond schedule. It can be deposited by the defendant or posted by someone else on the defendant’s behalf.
2. The court may set a policy that the cash bail may be posted by personal check, cashiers check, or money order in addition to cash. The policy on cash bonds may include the acceptance of reasonable denominations of currency and with no acceptance of coin. This policy should be posted in a public view.
3. A receipt should be given to the person posting the cash bond. The receipt should note the name of the defendant and the name and address of the person posting the bond so that the bond may be returned to that person after the defendant is discharged from all obligations.
4. The appearance bond release order (form 9-303) must be completed for each defendant released on a cash bond. The release order should include any reasonable conditions of release and a date and time for the defendant to appear in court.
5. If a personal check is dishonored for any reason, the court could revoke conditions of release and issue a bench warrant. The court could also pursue legal action against the person issuing the check.

IX. Bond Forfeiture Proceedings

When the defendant fails to appear in court for any scheduled appearance the judge should have the clerk start the bond forfeit proceedings.

1. The forfeiture notice should be sent within four days of the failure to appear to the person posting the bond whether he/she is a paid or unpaid surety, if any. The hearing shall be set 30 or more days from the notice. 8-406; 31-3-2 NMSA. (Notice of Forfeiture and Order to Show Cause form 9-307)
2. A bench warrant for the defendant’s arrest must be issued (form 9-212)
3. Forfeiture Hearing

1. The defendant appears at the hearing.

1. A showing of good cause for the initial failure to appear the judge may set aside the bond forfeiture. (Form 9-308)
2. The surety wants to be released from the bond the surety may be released and the defendant is required to post a new bond.
3. In both cases the bench warrant should be quashed.

2. The defendant does not appear prior to or at the hearing

X. Return of Bonds

A. Cash bonds

1.When a cash bond is posted by a defendant and all the requirements have been satisfied the defendant may ask that the bond be converted to pay the fine or should be required to pay the fine prior to the bond being refunded.

2. When a third party posts a cash bond, permission must be granted in writing from the third party for the bond to be used to pay the fines or the bond must be returned to the third party. When the bond is posted, a form may be provided for the third party to sign allowing conversion.

1. Surety Bond. After the defendant has satisfied all requirements, the bondsperson shall be discharged from the bond. 31-3-4E NMSA. Some bonding companies may make arrangements to retrieve the bonding papers from the court. The court should keep a copy of the bond paperwork.

Appendix I: Forms

9-302A Order Setting Conditions of Release and Appearance Bond (Long Form)
9-302B Release Order and Bond (Short Form)
9-303 Order Setting Conditions of Release
Bail Bond
9-304 Bail Bond
9-305 List of Outstanding Bonds
9-307 Notice of Forfeiture and Order to Show Cause
9-308 Order Setting Aside Bail Bond Forfeiture
9-309 Default Judgment on Bond
9-310 Default Judgment on Cash Bond
9-311 Irrevocable Letter of Credit

Appendix II: Quick Reference: Time Limits for Bonds

Bail Bond Forfeiture: Forfeiture may be declared immediately upon failure of defendant to appear or breach of condition. Written notice of the forfeiture is sent to the surety within 4 working days of declaration. NMSA 1978,

Section 31-3-2.

Bail Bond Default Judgment Execution: If forfeiture is not set aside, default is entered. If judgment is not paid within 10 days after it has been filed and served on surety as provided in Rule 8-407, execution may issue. Rule 8-406 (E).

Bail Bond Review of Conditions: A person in detention for 24 hours under conditions of release or bail, upon application, is entitled to have a hearing to review conditions or amount of bail set. Rule 8-401 (E)

Appendix III: Bond Questions and Answers

1. What does the Court do when a defendant does not appear as required?

Mail a Notice of Forfeiture and Order To Show Cause form (9-307) within 72 hours of the failure to appear and set the hearing for 30 days or more. Issue a bench warrant for the defendant’s arrest.

2. What does the court do when the bonding company appears for the forfeiture hearing?

The Court will deposit the forfeited bond into the general fund of the municipality.

3. What does the Court do when the bonding company does not show for the forfeiture hearing?

The Court mails a Default Judgment on Bond (form 9-309), to the bonding company. The bonding company must pay the bond within 10 days. If the bond is not paid in the correct amount of time, the Insurance Corporation Commission should be notified of the failure to pay. (The bonding company’s license information and the power of attorney bond number should be included in the correspondence) The court also notifies the district court that the bonding company has failed to pay on a Default Judgment on a Bond and that the bonding company may not post bonds in the municipal court.

4. What does the Court do when the bonding company appears for the forfeiture hearing and requests an extension of time to bring in the defendant?

The Court may allow more time to bring the defendant to court. The standard allotted time is 30 days.

5. What does the Court do when the bond has been forfeited and paid to the municipality and the bonding company brings the defendant to court three years later and wants the forfeited bond returned?

If the bonding company can prove that it aided in the apprehension of the defendant, the court must return the bond to the company.