Altice, J.
….
In 2013, the Vanderburgh Superior Court awarded Garner a civil judgment against Gregory Kempf in the amount of $20,600. Garner has been unable to collect on the judgment.
On July 30, 2015, criminal charges were filed against Kempf in an unrelated matter in Vanderburgh Superior Court, and a $5,000 bond was posted on Kempf’s behalf. The next day, Garner filed a motion for proceedings supplemental in the civil case seeking to garnish the bond proceeds and naming the Vanderburgh County Clerk (the Clerk) as a garnishee defendant. On the same date, Garner served a copy of the motion on the Clerk along with a letter advising the Clerk that Garner held a lien against the bond proceeds and that the Clerk could be held liable if it released the funds to anyone else. Garner did not, however, file anything in the criminal matter or otherwise give the criminal court notice of the lien. The Clerk did not make a note of the lien on the Chronological Case Summary (CCS) in the criminal case, and there is no indication that the criminal court had any knowledge of its existence. The parties do not dispute that Garner notified Kempf of the lien. On July 31, 2015, the civil court issued an order requiring Kempf and the Clerk to appear at a hearing on the motion for proceedings supplemental on August 26, 2015.
On August 13, 2015,2 Kempf asked the criminal court to release the bond proceeds to his criminal defense attorney, and Kempf’s attorney filed a written motion to that effect the next day. The criminal court, apparently still unaware of Garner’s pending motion for proceedings supplemental, granted the request and ordered the proceeds of the bond released to Kempf’s defense attorney on August 14, 2015.
….
[I.C. § 35-33-8-7(b)] places no limitations on the rights of creditors. Instead, it places a limitation on the ability of a criminal court to declare bond proceeds forfeited. Specifically, where a criminal court has notice of an unsatisfied civil judgment or a pending civil action “arising out of the same transaction or occurrence forming the basis of the criminal case,” the criminal court may not declare bond proceeds forfeited. Instead, the criminal court must order the clerk to continue to hold the bond proceeds, and payment of the civil judgment must be made from those funds before any remainder may be forfeited. Essentially, by protecting the bond proceeds from forfeiture where the criminal court has notice of a pending civil action or unsatisfied civil judgment arising out of the same circumstances giving rise to the criminal case, I.C. § 35-33-8-7(b) provides an additional safeguard for the victims of the crime for which the defendant is being prosecuted. The statute does nothing, however, to undermine the general law applicable to other types of creditors seeking to garnish bond proceeds posted in unrelated criminal cases.
Ind. Code § 34-25-3-1 specifically provides that “all officers who may collect money by virtue of their office, including . . . clerks of the circuit and superior courts” are subject to garnishment “in the same manner as and to the same extent that other persons are subject to garnishment.” (emphasis supplied)…t is undisputed that Garner took the steps required of him under the garnishment statutes to preserve his claim to the bond proceeds in this case…Upon receiving such notice, it was incumbent upon the Clerk to take steps to preserve the property in its possession. I.C. § 34-25-3-3 (providing that “[f]rom the day of the service of the summons, the garnishee is accountable to the plaintiff in the action for the amount of money, property, or credits in the garnishee’s possession or due and owing from the garnishee to the defendant”). [Footnote omitted.] The Clerk could have satisfied this obligation by making a notation of the lien on the CCS in the criminal case and bringing the lien to the criminal court’s attention upon receiving the order to release the funds to Kempf’s attorney.
The trial court essentially concluded that it was Garner’s duty to provide notice of the lien to the criminal court. The parties have not directed our attention to any authority supporting the trial court’s conclusion that Garner was required to take an additional step not set forth in the garnishment statutes to preserve his claim to the bond proceeds, and any such requirement would appear to conflict with I.C. § 34-25-3-1. The Clerk’s failure to fulfill its duty as a garnishee defendant prevented Garner from collecting on his lien and, consequently, the Clerk is liable to Garner in the amount thereof. [Footnote omitted.] We therefore reverse and remand with instructions for the civil court to enter judgment accordingly.
Judgment reversed and remanded with instructions.
Bradford, J., concurs.
Pyle, J., dissents with opinion.
Pyle, Judge dissenting.
I respectfully dissent from the majority’s opinion… Because bail statutes are criminal statutes which must be strictly construed, I would conclude that the absence of legislative authorization allowing unrelated third parties to bring civil judgments into criminal courts to attach bond money means that there is no error in this case. See Hook v. State, 775 N.E.2d 1125 (Ind. Ct. App. 2002). Despite any local rule to the contrary, Garner was without authority to seek attachment of the bond money in this criminal case.
In addition, allowing third parties to bring civil judgments into criminal courts also ignores the common law governing bail bonds….
Here, Kempf’s bond money was to serve the specific purposes listed in INDIANA CODE § 35-33-8-1. Fees could be deducted and/or attached only as authorized by statute. Otherwise, once the specific purpose was accomplished upon the disposition of the criminal case, any remaining balance must be returned to Kempf.