By LeRoy Nellis
I. Introduction
The institution of bail serves as one of the oldest mechanisms balancing the presumption of innocence with the state’s interest in ensuring a defendant’s appearance at trial. In Texas, as in most jurisdictions, the right to reasonable bail is constitutionally protected under Article I, Section 11 of the Texas Constitution, while also being constrained by both public safety and judicial discretion.
However, the continuation of a cash bond after a defendant’s rearrest raises a legally complex issue: does the original bond remain valid, or does it become void due to the breach of underlying conditions?
This paper examines, through the lens of Texas criminal procedure, federal constitutional standards, and case law, the precise legal mechanisms by which a cash bond may be voided following rearrest. It argues that under Texas law, a rearrest—especially for a new offense—operates as both a violation of bond conditions and a repudiation of the bond contract, thereby justifying its voidance.
II. The Legal Framework of Cash Bonds in Texas
A. Definition and Nature of Cash Bonds
Under Article 17.02 of the Texas Code of Criminal Procedure (TCCP), a cash bond is a deposit of lawful U.S. currency made by the defendant or on the defendant’s behalf, to secure their release pending trial. The bond serves as a guarantee of appearance and compliance with conditions set forth by the court.
Unlike a surety bond—which involves a third-party guarantor—a cash bond is wholly the defendant’s asset and thus directly forfeitable upon breach.
B. Contractual Character of Bonds
In Texas jurisprudence, a bond is treated as a contract between the state and the defendant, governed by both statute and the terms agreed upon at release. As established in Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980), the execution of a bond “creates a tripartite contract” involving the state, the principal (defendant), and the surety (if applicable), binding the defendant to conditions beyond mere appearance.
Therefore, when a defendant is rearrested, they may be viewed as having breached the bond contract, giving the court authority to revoke or void the existing bond.
III. Rearrest as a Breach of Bond Conditions
A. Statutory Authority for Rearrest and Bond Revocation
Under Article 17.09(3) TCCP, a court retains continuing jurisdiction to increase or revoke bail at any time “for good cause shown.” This includes the defendant’s rearrest for a new offense or violation of bond conditions, such as committing an additional crime while on release.
Texas courts have interpreted “good cause” broadly to encompass any conduct that undermines the purpose of bail, including noncompliance with pretrial supervision terms or new criminal acts (Ex parte Spaulding, 612 S.W.2d 509 (Tex. Crim. App. 1981)).
B. The Concept of Voidance vs. Forfeiture
It is important to distinguish between forfeiture and voidance:
Forfeiture occurs when a bond is enforced for breach, typically for failure to appear, and the cash is surrendered to the state.
Voidance, however, renders the bond legally null—as though it never existed—often due to supervening illegality or mutual mistake.
When a defendant is rearrested for a new offense, the original bond becomes void not by forfeiture but by operation of law, since continued release under that bond would conflict with public safety and judicial discretion.
IV. Judicial Interpretation: Texas Case Law
Texas courts have repeatedly addressed whether a bond remains effective following a defendant’s rearrest. Three decisions are particularly instructive.
A. Ex parte Vance (1980)
In Vance, the defendant was arrested for a felony, released on bond, and later rearrested for a different charge. The Texas Court of Criminal Appeals held that the trial court possessed inherent authority to revoke and void the prior bond, reasoning that “the state is not bound to perpetuate an agreement whose foundational trust has been breached.”
The court analogized bond conditions to a fiduciary relationship—once the defendant undermines that trust through rearrest, the bond’s purpose collapses.
B. Ex parte Spaulding (1981)
In Spaulding, the defendant’s bond was revoked after a new indictment was issued. The court upheld the revocation, noting that the issuance of a new warrant and subsequent rearrest terminates any continuing bond unless specifically renewed by judicial order.
The opinion emphasized that “a rearrest is a legal act incompatible with continued release on the same obligation.”
C. Ex parte Milburn (1984)
Milburn expanded on prior rulings by clarifying that even absent a conviction for the new offense, the fact of rearrest itself constitutes sufficient grounds for voiding the original bond. The decision underscored that the mere return to custody “revokes the liberty purchased by bond.”
V. Federal Constitutional Framework
A. The Eighth Amendment and Reasonable Bail
The Eighth Amendment prohibits “excessive bail,” but it does not guarantee an absolute right to bail. The U.S. Supreme Court in United States v. Salerno, 481 U.S. 739 (1987), held that pretrial detention based on future dangerousness does not violate the Eighth Amendment if accompanied by due process safeguards.
Applied to Texas law, rearrest implies new grounds for judicial reassessment of bail conditions, and voiding the existing cash bond can thus be constitutionally permissible if supported by legitimate state interests.
B. Due Process Protections
A defendant rearrested while on bond is entitled to procedural due process—including notice and a hearing—before permanent bond revocation (Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977)).
However, temporary voidance pending a new hearing has been deemed constitutional, as the state’s interest in preventing crime outweighs the defendant’s temporary liberty interest (Barker v. Wingo, 407 U.S. 514 (1972)).
VI. The Interplay Between Texas and Federal Jurisdiction
While bail regulation is primarily a state function, federal constitutional standards—particularly due process and equal protection—serve as constraints on Texas’ discretionary authority.
A defendant claiming improper voidance of a cash bond may seek federal habeas corpus relief under 28 U.S.C. § 2254, alleging violations of procedural fairness. Yet, federal courts typically defer to state bond determinations unless the proceedings were “fundamentally unfair” (Gerstein v. Pugh, 420 U.S. 103 (1975)).
VII. Policy Considerations and Critiques
A. Balancing Liberty and Public Safety
The automatic voidance of a bond upon rearrest prioritizes public safety but risks undermining the presumption of innocence. Critics argue that rearrest alone, absent conviction, may not justify nullifying a financial bond that was lawfully executed.
B. Judicial Discretion and Inequality
Empirical studies in Texas reveal disparities in bail revocation practices across counties. The Texas Judicial Council (2022) reported that wealthier defendants more easily navigate bond voidance by posting new cash bonds, while indigent defendants face de facto pretrial detention upon rearrest.
C. Proposals for Reform
Scholars have proposed statutory clarification under Art. 17.09 to require explicit judicial findings before voiding a bond. Some suggest integrating risk assessment tools rather than relying solely on rearrest as a proxy for danger.
VIII. Conclusion
Under Texas law, a cash bond is voided upon rearrest not as a punitive measure, but as a legal and procedural necessity reflecting breach of the bond’s conditions and the reassertion of state custody. Federal law recognizes this authority, provided procedural due process is respected.
The principle reflects a deeper tension within the criminal justice system: the attempt to reconcile liberty with accountability, and trust with enforcement. Ultimately, the voidance of a bond upon rearrest represents a reaffirmation that bail is not a right of perpetuity, but a privilege grounded in continued compliance and judicial confidence.
Select References
Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980).
Ex parte Spaulding, 612 S.W.2d 509 (Tex. Crim. App. 1981).
Ex parte Milburn, 700 S.W.2d 552 (Tex. Crim. App. 1984).
United States v. Salerno, 481 U.S. 739 (1987).
Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977).
Gerstein v. Pugh, 420 U.S. 103 (1975).
Texas Code of Criminal Procedure, Art. 17.02–17.09.
Texas Judicial Council, Bail Practices Report (2022).
LeRoy Nellis 
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