Mr. Sam Brown

Attorney General of Colorado — Opinion
October 13, 1975

RE: Bail bond forfeiture

J.D. MacFARLANE, Attorney General

Mr. Sam Brown State Treasurer State Capitol Building Denver, Colorado 80203

Dear Mr. Brown:

This is in response to your inquiry concerning forfeiture of bail bonds and their subsequent payment into the general fund of the State of Colorado.

QUESTION PRESENTED AND CONCLUSION

Can district courts retain funds from forfeited bail bonds for a specific and limited time?

My conclusion is yes, in order to be able to set aside forfeitures as justice requires as permitted by C.R.S. 1973, 16-4-109(3).

ANALYSIS

The problem, as outlined in a letter to this office from Tom Lamm, Esq., results from the situation in which a district court orders a forfeited bond to be set aside because of the return of the defendant to the court’s jurisdiction. In a letter to you dated May 7, 1975, the Attorney General stated that the Treasurer was prohibited by article V, section 33
of the Colorado Constitution from returning forfeited bail money which has been paid into the general fund of the State.

In order to remedy this somewhat inequitable situation, Mr. Lamm has suggested the possibility of the district court retaining the forfeited funds for a specific and limited period of time, so that if the forfeiture is set aside, the forfeited funds, or a part thereof, may be returned to the bail bondsman. C.R.S. 1973, 16-4-109(3) states that

The court may order that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice so requires.

SUMMARY

The authority of the court to set aside a forfeiture implies the authority to return all or a part of the funds. Thus I see no objection to a district court, pursuant to agreement and order, retaining said funds for a specific and limited period of time in order to effect the setting aside of a forfeiture should it so order.

I would suggest, however, that interest earned on said funds should be credited to the general fund pursuant to C.R.S. 1973, 24-36-114.

Very truly yours,

J.D. MacFARLANE
Attorney General

TREASURER, STATE
COURTS, DISTRICT

C.R.S. 1973, 16-4-109(3) C.R.S. 1973, 24-36-114

Colo. Const. art. V, § 33

TREASURY, DEPT. OF All Other Areas

District courts may retain funds resulting from forfeited bail bonds for a specified and limited period in order to be able to set aside forfeitures as justice requires as permitted by C.R.S. 1973, 16-4-109(3).