2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 3 - Bail
Section 31-3-2 - Failure to appear; forfeiture of bail bonds.

A. Whenever any person fails to appear at the time and place fixed by the terms of recognizance, the court may issue a warrant for his arrest.

B. Whenever a person fails to appear at the time and place fixed by the terms of his bail bond, the court:

(1) may issue a warrant for his arrest; and

(2) may declare a forfeiture of the bail. If the court declares a forfeiture, it shall:

(a) declare such forfeiture at the time of nonappearance;

(b) give written notice thereof to the surety within four working days of declaration; and

(c) issue a bench warrant for the person's arrest.

C. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

D. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default, and execution may issue thereon. By entering into a bail bond, the obligors submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as their agent upon whom papers affecting their liability may be served. Liability of the surety may be enforced on motion without the necessity of an independent action.

E. Notice of the motion to enter a judgment of default may be served pursuant to the rules of criminal procedure or may be served on the clerk of the court, who shall forthwith mail copies to the obligors at their last known address. The notice shall require the sureties to appear on or before a given date and show cause why judgment shall not be entered against them for the amount of the bail bond or recognizance. If good cause is not shown, the court may then enter judgment against the obligors on the recognizance, for such sum as it sees fit, not exceeding the penalty fixed by the bail bond or recognizance.

F. When a judgment has been rendered against the defendant or surety for the whole or part of the penalty of a forfeited recognizance, the court rendering such judgment shall remit the amount thereof when, after such rendition, the accused has been arrested and surrendered to the proper court to be tried on such charge or to answer the judgment of the court, provided that the apprehension of the accused in some way was aided by the surety's efforts or by information supplied by the surety.

G. If any amount remains unpaid ten days after entry of judgment, the court may issue execution for satisfaction of judgment.

H. In the event that an obligor does not possess property in this state sufficient to satisfy a judgment against it for the whole or part of the penalty of a forfeited recognizance, the court entering judgment against the obligor on the recognizance shall send written notification to the superintendent of insurance. Immediately upon receipt of such written notification and pursuant to Section 46-6-4 NMSA 1978, the superintendent of insurance shall inform the obligor that unless the judgment is paid or an appeal, writ of error or supersedeas is taken within thirty days of the rendition of the judgment or decree, such obligor shall forfeit all right to do business in this state. If timely appeal, writ of error or supersedeas is not taken, the superintendent of insurance shall immediately take whatever steps necessary to revoke the right of the obligor to do business in this state.

History: 1953 Comp., § 41-3-2, enacted by Laws 1972, ch. 71, § 9; 1973, ch. 215, § 1; 1987, ch. 228, § 1; 1993, ch. 159, § 1.

Repeals and reenactments. — Laws 1972, ch. 71, § 9, repealed 41-3-2, 1953 Comp., relating to defendant being permitted to send for counsel, and enacted a new 31-3-2 NMSA 1978.

The 1987 amendment, effective June 19, 1987, added all of the language following "bail" in Subsection A(2), made minor stylistic changes in Subsection D, and substituted "shall remit" for "may in its discretion remit or reduce" in Subsection E while adding the proviso at the end of that subsection.

The 1993 amendment, effective June 18, 1993, rewrote former Subsection A as present Subsections A and B and redesignated former Subsections B through G accordingly.

Notices required when bond forfeited. — If the district court decides that a bail bond is subject to forfeiture, then the district court must serve the surety with two notices: a notice of the declaration of forfeiture of the bond and another notice of a hearing to show cause why judgment should not be entered for the amount of the bond. State v. Pacheco, 2008-NMCA-055, 143 N.M. 851, 182 P.3d 834.

Four day notice of forfeiture. — Where the district court issued a notice of forfeiture of a bail bond on Thursday, December 8 and ordered the surety to appear and show cause on Tuesday, December 13 why judgment should not be entered on the bond, and the surety received the notice of forfeiture on Wednesday December 14, the district court provided the surety with notice of forfeiture within the required four day period. State v. Pacheco, 2008-NMCA-055, 143 N.M. 851, 182 P.3d 834.

A bail bond may not be forfeited for violations of conditions of release other than failure to appear. A statute controls over a bail bond form. State v. Romero, 2007-NMSC-030, 141 N.M. 733, 160 P.3d 914.

Compiler's notes. — Many of the following annotations are from cases which were decided under former law.

Purpose of bail is to secure defendant's attendance to submit to the punishment to be imposed by the court. State v. Cotton Belt Ins. Co., 1981-NMSC-129, 97 N.M. 152, 637 P.2d 834.

Bail is subject to forfeiture until such time as the defendant surrenders himself to the authorities to serve his sentence. State v. Cotton Belt Ins. Co., 1981-NMSC-129, 97 N.M. 152, 637 P.2d 834.

Court's discretion in ordering forfeiture. — The court must exercise its discretion in determining whether to order forfeiture of the entire amount of the bond. State v. Amador, 1982-NMSC-083, 98 N.M. 270, 648 P.2d 309.

Proper forfeiture of bond. — Where defendant was charged with the felony offense of driving while under the influence of intoxicating liquor, released on bail by the magistrate court in the amount of $5,000 subject to certain conditions, fled to Arkansas after his initial bond hearing, and where appellant bond company, over a year later, took defendant into custody in Arkansas and returned him to New Mexico, the district court did not err in affirming the forfeiture of the bond by the magistrate court where the evidence established that appellant did not take any action in Arkansas prior to the forfeiture hearing in the magistrate court and did not appear at the forfeiture hearing to show "good cause" why the defendant failed to appear at his preliminary hearing, that defendant was not in custody in Arkansas, and that Arkansas did not thwart the efforts of appellant to apprehend defendant; appellant failed to sustain its burden of showing an impediment to defendant's appearance or that defendant was taken into custody prior to the entry of the magistrate court judgment. State v. Naegle, 2017-NMCA-017.

Order forfeiting bond must include finding that defendant failed to appear. — The order forfeiting bond was fatally defective because of the failure to include therein a finding that the defendant (principal on the bond) failed to appear. State v. Barboa, 1958-NMSC-030, 64 N.M. 5, 322 P.2d 337.

And no bail discharge because principal imprisoned in another state. — If the performance of a recognizance is rendered impossible by the imprisonment of the principal in another state, it is not such an act of law as will discharge bail. State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Surety's responsibilities begin upon prisoner's release. — A prisoner released on bail is regarded as being transferred from the custody of the public officials charged with his confinement to that of the sureties on his bail bond or recognizance. The sureties are then charged with the duty of producing him to answer the charges against him at the proper time and are liable for a failure to do so, unless the failure is excused for reasons which the courts regard as adequate. State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Principal must fail to respond before surety found in default. — There must be a finding of a failure of the principal to answer or appear upon the calling of his case for trial or other court action, or otherwise to fail to respond to the court before any default on the undertaking of the surety can be ordered by the court. State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Ceremonial calling dispensed with in principal's absence. — Notice to the surety on a bail bond is sufficient notice to the principal and to require a ceremonial calling out of the principal's name when his absence is obvious and that fact acknowledged in open court by the bail would be useless. Thus the court's order to forfeit the bond was valid. State v. Hathaway, 1970-NMSC-006, 81 N.M. 159, 464 P.2d 889.

Obligation of surety is to suffer forfeiture if the principal does not, after notice to him or the surety, respond to the judgment and sentence and final commitment of the court. State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Authority of magistrate court to set aside forfeiture judgment. — Subsection F is an exception to the "continuing jurisdiction" rule. The language of the subsection clearly indicates that the legislature intended to affirmatively grant magistrate courts the discretion to set aside a forfeiture judgment and remit all or part of the penalty. State v. Ramirez, 1981-NMSC-125, 97 N.M. 125, 637 P.2d 556.

No mitigation of judgment until principal surrenders. — Once judgment of forfeiture is entered and the amount fixed, the court has no occasion to mitigate the amount of the judgment it has previously entered, unless the principal is "surrendered to proper court to be tried on such charges, or to answer the judgment of said court." State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Relief in the form of remittitur is discretionary and will be reviewed only for abuse of discretion. State v. Cotton Belt Ins. Co., 1981-NMSC-129, 97 N.M. 152, 637 P.2d 834.

Action on recognizance civil in nature. — Actions on recognizances, though normally pursued in the criminal causes of action, are actually independent civil proceedings brought by the state against appellants pursuant to statute. State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Effect of prosecution of bond liability. — Where a bond has been declared forfeited on nonappearance of the principal in a criminal case, and the enforcement of the bond liability is prosecuted in a civil action, transfer of the criminal case to another court will not affect the jurisdiction of the first court to determine the enforcement of the forfeiture. State v. United Bonding Ins. Co., 1970-NMSC-017, 81 N.M. 154, 464 P.2d 884.

Security for restitution disallowed. — There is no authorization under this section for requiring security for restitution as a condition of bail pending appeal. State v. Montoya, 1993-NMCA-097, 116 N.M. 297, 861 P.2d 978.

Bondsman thwarted by actions of another jurisdiction. — Considering the purposes of bail and the policy to encourage bondsmen to enter into bail contracts, it is unjust to enrich the state treasury when a bondsman has been diligent in his efforts to apprehend and bring back for trial a defendant but has been thwarted by the actions of another sovereign jurisdiction. State v. Amador, 1982-NMSC-083, 98 N.M. 270, 648 P.2d 309.

Refund of forfeited bond. — Despite the conflict between Rule 7-406 NMRA and Subsection F of this section, a metropolitan court judge may refund a forfeited bond to a bondsman who is able to apprehend a defendant and bring her back to court, as the conflict concerns substantive law over which the statute controls. 1989 Op. Att'y Gen. No. 89-12.

Law reviews. — For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 8 Am. Jur. 2d Bail and Recognizance § 109 et seq.

Insanity of principal as relieving bail for his nonappearance, 7 A.L.R. 394.

Induction of principal into military or naval service as exonerating his bail for his nonappearance, 8 A.L.R. 371, 147 A.L.R. 1428, 151 A.L.R. 1462, 153 A.L.R. 1431.

Variance between name in bail bond and in judgment of forfeiture, 20 A.L.R. 411.

Constitutionality of statute relieving against forfeiture of bail or recognizance, 43 A.L.R. 1233.

Escape of principal during his detention on separate charge as affecting liability of bail, 45 A.L.R. 1037.

Right of bail to relief from forfeiture of bond or recognizance in event of subsequent surrender or production of principal, 84 A.L.R. 420.

Relief from forfeiture, excuse for failure of accused to appear which will entitle surety to, 84 A.L.R. 440.

Arraignment and plea, failure of judgment or order forfeiting bail, or deposit in lieu thereof, to recite, 90 A.L.R. 298.

Failure to appear, and the like, resulting in forfeiture or conditional forfeiture of bail, as affecting right to second admission to bail in same noncapital criminal case, 29 A.L.R.2d 945.

Bail jumping after conviction, failure to surrender or appear for sentencing and the like, as contempt, 34 A.L.R.2d 1100.

Death of principal as exoneration of sureties on bail or appearance bond, 63 A.L.R.2d 830.

Limitation of actions, enforceability of bail bond or recognizance against surety where, at time it was filed, prosecution of principal was barred by, 75 A.L.R.2d 1431.

Governor's authority to remit forfeited bail bond, 77 A.L.R.2d 988.

Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180.

Funds deposited in court in lieu of bail as subject of garnishment, 1 A.L.R.3d 936.

Dismissal or vacation of indictment as terminating liability or obligation of surety on bail bond, 18 A.L.R.3d 1354.

Liability of surety on bail bond taken without authority, 27 A.L.R.4th 246.

Bail: duration of surety's liability on pretrial bond, 32 A.L.R.4th 504.

Bail: duration of surety's liability on posttrial bail bond, 32 A.L.R.4th 575.

Bail: effect on surety's liability under bail bond of principal's incarceration in other jurisdiction, 33 A.L.R.4th 663.

Bail: effect on surety's liability under bail bond of principal's subsequent incarceration in same jurisdiction, 35 A.L.R.4th 1192.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.

8 C.J.S. Bail; Release and Detention Pending Proceedings §§ 118 to 190.