MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary B

By: Representatives Rogers, Mitchell

AN ACT TO CREATE NEW CODE SECTION 83-39-2, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CERTAIN BAIL AGENTS SHALL BE CONSIDERED DESIGNATED AGENTS/OFFICERS OF THE COURTS OF MISSISSIPPI FOR BAIL PURPOSES; TO AMEND SECTION 83-39-1, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF A BAIL ENFORCEMENT AGENT; TO INCLUDE THE DUTIES OF A SOLICITING BAIL AGENT; TO AMEND SECTION 83-39-5, MISSISSIPPI CODE OF 1972, TO REVISE LICENSING REQUIREMENTS FOR BAIL AGENTS; TO AMEND SECTION 83-39-7, MISSISSIPPI CODE OF 1972, TO REVISE QUALIFICATION BOND REQUIREMENTS FOR CERTAIN PROFESSIONAL BAIL AGENTS; TO AMEND SECTION 83-39-21, MISSISSIPPI CODE OF 1972, TO REVISE JUDICIAL PROCEEDINGS CONCERNING REVOCATION OF LICENSES; TO AMEND SECTION 83-39-25, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A PROFESSIONAL BAIL AGENT TO CHARGE THE DEFENDANT A CERTAIN PROCESSING FEE FOR BOND; TO AMEND SECTION 83-39-27, MISSISSIPPI CODE OF 1972, TO REVISE PROHIBITED LICENSEE ACTIVITIES; TO AMEND SECTION 83-39-29, MISSISSIPPI CODE OF 1972, TO REVISE PENALTIES FOR CERTAIN VIOLATIONS BY BAIL AGENTS; TO CREATE A NEW SECTION IN CHAPTER 5 OF TITLE 99, MISSISSIPPI CODE OF 1972, TO CREATE THE OFFENSE OF "FAILURE TO APPEAR"; TO AMEND SECTIONS 83-39-3, 83-39-9, 83-39-11 AND 83-39-15, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following section shall be codified as Section 83-39-2, Mississippi Code of 1972:

83-39-2. Any individual serving as a professional bail agent, a bail enforcement agent, a limited surety agent or a personal surety agent as defined in Section 83-39-1 shall be considered a designated agent/officer of the courts of Mississippi for bail purposes.

SECTION 2. Section 83-39-1, Mississippi Code of 1972, is amended as follows:

83-39-1. The following terms when used in this chapter shall have the following meanings:

(a) "Department" means the Department of Insurance.

(b) "Commissioner" means the Commissioner of Insurance.

(c) "Insurer" means any domestic or foreign insurance corporation or association engaged in the business of insurance or suretyship which has qualified to transact surety or casualty business in this state.

(d) "Professional bail agent" means any individual who shall furnish bail, acting as a licensed personal surety agent or as a licensed limited surety agent representing an insurer as defined by this chapter. The above definition shall not include, and this chapter does not apply to, any individual who acts as personal surety in instances where there is no compensation charged or received for such service.

(e) "Bail enforcement agent" means a person who, as an agent or employee of a professional bail agent or as an independent contractor for compensation or otherwise, solicits, advertises or actively seeks bail bond business for or on behalf of a professional bail agent and who assists the professional bail agent in presenting the defendant in court when required, or who assists in the apprehension and surrender of the defendant to the court or who keeps the defendant under necessary surveillance. Nothing herein shall affect the right of professional bail agents to have counsel or to ask assistance of law enforcement officers.

(f) "Limited surety agent" means any individual who is appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings, and who is duly licensed by the commissioner to represent such insurer for the restricted lines of bail, fidelity and surety, after successfully completing a limited examination by the department for the restricted lines of business.

(g) "Personal surety agent" means any individual who, having posted the necessary qualification bond with the commissioner as required by Section 83-39-7, and duly licensed by the commissioner, may execute and sign bail bonds in connection with judicial proceedings. All new personal surety agents licensed after July 1, 1994, shall complete successfully a limited examination by the department for the restricted lines of business.

(h) "Bail agent" means any person licensed under this chapter and such person shall be considered a professional bondsman, bail bondsman, bondsman or bail agent.

SECTION 3. Section 83-39-3, Mississippi Code of 1972, is amended as follows:

83-39-3. (1) No person shall act in the capacity of professional bail agent, * * * or bail enforcement agent, as defined in Section 83-39-1, or perform any of the functions, duties or powers of the same unless that person shall be qualified and licensed as provided in this chapter. The terms of this chapter shall not apply to any automobile club or association, financial institution, insurance company, or other organization or association or their employees who execute bail bonds on violations arising out of the use of a motor vehicle by their members, policyholders or borrowers when bail bond is not the principal benefit of membership, the policy of insurance or of a loan to such member, policyholder or borrower.

(2) No license shall be issued except in compliance with this chapter, and none shall be issued except to an individual. No firm, partnership, association or corporation, as such, shall be so licensed. No professional bail agent shall operate under more than one (1) trade name. A * * * bail enforcement agent shall operate only under the professional bail agent's name and his trade name. No person who has ever been convicted of a felony or any crime involving moral turpitude during the previous ten (10) years, or who has not been a resident of this state for at least one (1) year, unless presently licensed for bail bonds, or who is under twenty-one (21) years of age, shall be issued a license hereunder. No person engaged as a law enforcement or judicial official or attorney shall be licensed hereunder. No person licensed under this chapter shall act as a personal surety agent in the writing of bail during a period he or she is licensed as a limited surety agent, as defined herein.

(3) The department is vested with the authority to enforce this chapter. The department may conduct investigations or request other state, county or local officials to conduct investigations and promulgate such rules and regulations as may be necessary for the enforcement of this chapter. The department may establish monetary fines and collect such fines as necessary for the enforcement of such rules and regulations. All fines collected shall be deposited in the Special Insurance Department Fund for the operation of that agency.

(4) Each license issued hereunder shall expire annually on the last day of February, unless renewal application has been filed with the department prior thereto, unless revoked or suspended prior thereto by the department, or upon notice served upon the commissioner by the insurer that the authority of a limited surety agent to act for or in behalf of such insurer had been terminated, or upon notice served upon the commissioner by a professional bail agent that the employment of a * * * bail enforcement agent had been terminated by such professional bail agent.

(5) The department shall prepare and deliver to each licensee a certificate showing the name, address and classification of such licensee, and shall certify that the person is a licensed professional bail agent, being either a personal surety agent or a limited surety agent, and the trade name used or a bail enforcement agent. In addition, the certificate, if for a  * * * bail enforcement agent, shall show the name of the professional bail agent, whether personal or limited surety, the trade name used and any other information as the commissioner deems proper.

(6) The commissioner, may suspend or revoke a privilege license for a * * * bail enforcement agent when provided with a court judgment stating he owes any premium * * * to the professional bail agent with whom he is currently licensed or was previously licensed.

(7) The commissioner may suspend or revoke a privilege license for a limited surety agent when provided with a court judgment stating he owes any premium to an insurer with whom he was previously or is currently licensed.

SECTION 4. Section 83-39-5, Mississippi Code of 1972, is amended as follows:

83-39-5. Any person desiring to engage in the business of professional bail agent, * * * or bail enforcement agent in this state shall apply to the department for a license on forms prepared and furnished by the department. The application for a license, or renewal thereof, shall set forth, under oath, the following information:

(a) Full name, age, date of birth, social security number, residence during the previous five (5) years, occupation, the business trade name and business address * * * the applicant will use.

(b) Spouse's full name, occupation and business address.

(c) A photograph of the applicant and a full set of

fingerprints for the initial application only. A photograph of the applicant and a full set of fingerprints are not required for renewal.

(d) A statement that he is not licensed to practice law in the State of Mississippi or any other state and that no attorney or any convicted felon has any interest in his application, either directly or indirectly.

(e) Any other information as may be required by this chapter or by the department.

(f) In the case of a professional bail agent, a statement that he will actively engage in the bail bond business.

(g) In the case of a * * * bail enforcement agent, a statement that he will be employed or used by only one (1) professional bail agent and that the professional bail agent will supervise his work and be responsible for his conduct in his work. A professional bail agent shall sign the application of each * * * bail enforcement agent employed or used by him.

SECTION 5. Section 83-39-7, Mississippi Code of 1972, is amended as follows:

83-39-7. Each applicant for professional bail agent who acts as personal surety shall be required to post a qualification bond in the amount of Five Thousand Dollars ($5,000.00) with the department. Any professional bail agent making application for license renewal, as herein provided, who shall have furnished bail in fifty (50) or more criminal cases shall post such bond in the amount of Ten Thousand Dollars ($10,000.00). The qualification bond shall be made by depositing with the State Treasurer for the commissioner the aforesaid amount * * * in a system established by the department. The qualification bond shall be conditioned upon the full and prompt payment of any bail bond issued by such professional bail agent into the court ordering the qualification bond forfeited. The qualification bond shall be to the people of the State of Mississippi in favor of any court of this state, whether municipal, justice, county, circuit, Supreme or other court. If the license of any personal surety agent is terminated, the qualification bond or the remaining part thereof shall be returned to such agent upon service on the department of a proper court order from a circuit clerk, in the district to his domicile, that orders the department to release the qualification bond upon sworn testimony given by the personal surety agent that he is no longer surety on any bail bond executed by himself or any of his agents.

A personal surety agent shall be allowed to transfer his qualification bond as required by this section to another applicant if the new applicant submits to the department proof that the new applicant assumes in writing all outstanding surety liabilities of such personal surety agent and the new applicant submits the application required by Section 83-39-5 and meets any other requirements of the department.

Upon the death of a personal surety agent, a family member may assume the qualification bond of the deceased if the individual submits to the department proof that the individual assumes all outstanding surety liabilities of the deceased and the individual submits the application required by Section 83-39-5 and meets any other requirements of the department.

The commissioner, upon receipt of proper court order to revoke a professional bail agent's authority to write bonds, shall notify the professional bail agent within five (5) working days of receipt of the revocation order. If after ten (10) working days of such notification the revocation order has not been set aside by the court, then the commissioner shall revoke the authority of the professional bail agent and all agents of the professional bail agent to write bonds and shall notify the sheriff of every county of such revocation. Upon revocation, the commissioner, upon receipt of proper court order to forfeit the qualification bond of the professional bail agent or any part thereof, shall pay the amount ordered by the court or the qualification bond, whichever is smaller, to the court.

The commissioner may reinstate a professional bail agent's authority to write bonds upon the receipt of a new qualification bond in an amount totaling Twenty-five Thousand Dollars ($25,000.00) and receipt of a set aside order from the court that ordered the revocation and shall notify the sheriff of every county of such reinstatement.

83-39-7. Each applicant for professional bail agent who acts as personal surety shall be required to post a qualification bond in the amount of Twenty-five Thousand Dollars ($25,000.00) with the department. Any professional bail agent licensed before January 1, 1998, shall post an additional Five Thousand Dollars ($5,000.000) annually with license renewal until he has a qualification bond in the amount of Twenty-five Thousand Dollars ($25,000.00) beginning with the license renewal application in 1998. The total qualification bond in 1998 shall be Fifteen Thousand Dollars ($15,000.00) for all professional bail agents who were licensed before January 1, 1998. The qualification bond shall be made by depositing with the State Treasurer for the commissioner the aforesaid amount * * * in a system established by the department. The qualification bond shall be conditioned upon the full and prompt payment of any bail bond issued by such professional bail agent into the court ordering the qualification bond forfeited. The qualification bond shall be to the people of the State of Mississippi in favor of any court of this state, whether municipal, justice, county, circuit, Supreme or other court. If the license of any personal surety agent is terminated, the qualification bond or the remaining part thereof shall be returned to such agent upon service on the department of a proper court order form a circuit clerk, in the district of his domicile, that orders the department to release the qualification bond upon sworn testimony given by the personal surety agent that he is no longer surety on any bail bond executed by himself or any of his agents.

A personal surety agent shall be allowed to transfer his qualification bond as required by this section to another applicant if the new applicant submits to the department proof that the new applicant assumes in writing all outstanding surety liabilities of such personal surety agent and the new applicant submits the application required by Section 83-39-5 and meets any other requirements of the department.

Upon the death of a personal surety agent, a family member may assume the qualification bond of the deceased if the individual submits to the department proof that the individual assumes all outstanding surety liabilities of the deceased and the individual submits the application required by Section 83-39-5 and meets any other requirements of the department.

The commissioner, upon receipt of proper court order to revoke a professional bail agent's authority to write bonds, shall notify the professional bail agent within five (5) working days of receipt of the revocation order. If after ten (10) working days of such notification the revocation order has not been set aside by the court, then the commissioner shall revoke the authority of the professional bail agent and all agents of the professional bail agent to write bonds and shall notify the sheriff of every county of such revocation. Upon revocation, the commissioner, upon receipt of proper court order to forfeit the qualification bond of the professional bail agent or any part thereof, shall pay the amount ordered by the court or the qualification bond, whichever is smaller, to the court.

The commissioner may reinstate a professional bail agent's authority to write bonds upon the receipt of a new qualification bond in an amount totaling Twenty-five Thousand Dollars ($25,000.00) and receipt of a set aside order from the court that ordered the revocation and the commissioner shall notify the sheriff of every county of such reinstatement.

SECTION 6. Section 83-39-9, Mississippi Code of 1972, is amended as follows:

83-39-9. The department upon receipt of the license application, the required fee, and proof of good moral character and, in the case of a professional bail agent, an approved qualification bond in the required amount, shall issue to the applicant a license to do business as a professional bail agent * * * or bail enforcement agent as the case may be.

No licensed professional bail agent shall have in his employ in the bail bond business any person who could not qualify for a license under this chapter, nor shall any licensed professional bail agent have as a partner or associate in such business any person who could not so qualify.

SECTION 7. Section 83-39-11, Mississippi Code of 1972, is amended as follows:

83-39-11. Each license application and application for license renewal to engage in the business of professional bail agent shall be accompanied by a fee of Fifty Dollars ($50.00). Each license application and application for license renewal to engage in the business of * * * bail enforcement agent shall be accompanied by a fee of Twenty Dollars ($20.00).

SECTION 8. Section 83-39-15, Mississippi Code of 1972, is amended as follows:

83-39-15. (1) The department may deny, suspend, revoke or refuse to renew, as may be appropriate, the license of any person engaged in the business of professional bail agent * * * or bail enforcement agent for any of the following reasons:

(a) Any cause for which the issuance of the license would have been refused had it then existed and been known to the department.

(b) Failure to post a qualification bond in the required amount with the department during the period the person is engaged in the business within this state or, if the bond has been posted, the forfeiture or cancellation of the bond.

(c) Material misstatement, misrepresentation or fraud in obtaining the license.

(d) Willful failure to comply with, or willful violation of, any provision of this chapter or of any proper order, rule or regulation of the department or any court of this state.

(e) Conviction of felony or crime involving moral turpitude.

(f) Default in payment to the court should any bond issued by such bail agent be forfeited by order of the court.

(2) In addition to the grounds specified in subsection (1) of this section, the department shall be authorized to suspend the license, registration or permit of any person for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license, registration or permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license, registration or permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license, registration or permit suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

SECTION 9. Section 83-39-21, Mississippi Code of 1972, is amended as follows:

83-39-21. The commissioner, in his discretion, in lieu of the hearing provided for in Section 83-39-17, may file a petition to suspend or revoke any license authorized hereunder in a court of competent jurisdiction of the county or district in which the alleged offense occurred. In such cases, subpoenas may be issued for witnesses, and mileage and witness fees paid by the defendant, if found guilty. * * *

Any court of competent jurisdiction within this state may suspend or revoke the license of any person licensed under this chapter for any of the following reasons:

(a) Misappropriation, conversion or unlawful withholding of monies or collateral belonging to insured principals or others and received in the conduct of business under a license provided by this chapter.

(b) Fraudulent or dishonest practices in the conduct of the business under a license provided by this chapter.

(c) The commission of any act which would prohibit or restrict the licensee from holding a license under this chapter.

The court which suspends or revokes a license under the terms of this chapter, or the clerk thereof, shall promptly furnish the commissioner a copy of the suspension or revocation order.

SECTION 10. Section 83-39-25, Mississippi Code of 1972, is amended as follows:

83-39-25. A professional bail agent or his agent shall charge for his premium, commission, or fee an amount of ten percent (10%) of the amount of bail per bond posted by him, or Fifty Dollars ($50.00), whichever is greater, except on a bond on a defendant who is charged with a capital offense, or on a defendant who resides outside the State of Mississippi, in which case the premium, commission or fee shall be not more than fifteen percent (15%) of the amount of bail, per bond posted by him, or Fifty Dollars (450.00) whichever is greater. A professional bail agent or his agent shall be allowed under this chapter to charge to the defendant a processing fee of no more than Twenty-five Dollars ($25.00) per incident for which he provides bond.

SECTION 11. Section 83-39-27, Mississippi Code of 1972, is amended as follows:

83-39-27. It is unlawful for a licensee to engage in any of the following activities:

(a) Specify, suggest or advise the employment of any particular attorney to represent his principal.

(b) Pay a fee or rebate or give or promise to give anything of value to a jailer, policeman, peace officer, clerk, deputy clerk, any other employee of any court, district attorney or any of his employees or any person who has power to arrest or to hold any person in custody or any inmate or trustee incarcerated in any penal facility.

(c) Pay a fee or rebate or give anything of value to an attorney in bail bond matters, except in defense of any act on a bond, or as counsel to represent such bail agent, his agent or employees.

(d) Pay a fee or rebate or give or promise to give anything of value to the person on whose bond he is or becomes surety or to others on behalf of such person.

(e) Accept anything of value from a person on whose bond he is surety, or from others on behalf of such person, except the fee or premium and processing fee on the bond, but the bail agent may accept collateral security or other indemnity.

(f) Coerce, suggest, aid and abet, offer promise of favor or threaten any person on whose bond he is surety or offers to become surety, to induce that person to commit any crime.

(g) Fail to report all bail bonds executed and/or pay the premium or commission due to a professional bail agent by his/her bail agent.

(h) Fail to report all bail bonds executed and/or pay the premium or commission due to his/her insurer by a limited surety bail agent.

SECTION 12. Section 83-39-29, Mississippi Code of 1972, is amended as follows:

83-39-29. (1) Upon written notification of any alleged violation of any provision of Chapter 39 of Title 83 to the department, the commissioner shall report the allegation to the Office of the Attorney General with any information the department receives in order that proper legal action may be pursued.

(2) Any licensee who violates any provision of this Chapter is guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than Two Thousand Dollars ($2,000.00) or imprisonment in the county jail for not more than one (1) year, or both.

(3) Any insurer violating any provision of Chapter 39 of Title 83 may be fined in an amount not to exceed Fifty Thousand Dollars ($50,000.00).

(4) Any public official, whether elected or appointed, who violates any provision of this chapter is guilty of a misdemeanor and, upon conviction, shall be subject to a fine of not more than Two Thousand Dollars ($2,000.00) or imprisonment in the county jail for not more than one (1) year, or both.

(5) Any person who acts or attempts to act as a * * *

bail agent * * * as defined in this chapter and who is not licensed under this chapter is guilty of a felony and, upon conviction, shall be subject to a fine of not more than Ten Thousand Dollars ($10,000.00) or imprisonment by the Department of Corrections for not more than ten (10) years, or both.

SECTION 13. The following section shall be codified in Chapter 5 of Title 99, Mississippi Code of 1972:

The purpose of bail is to guarantee appearance and bail shall not be forfeited for any other reason. Any person charged with a criminal violation who has obtained his release from custody by having a professional bail agent, insurer, agent of such bail agent or insurer, or any person other than himself furnish his bail bond and who fails to appear in court at the time and place ordered by the court causing the court to order the bail forfeited and a bench warrant issued at the time of nonappearance is guilty of "Failure to Appear", commonly known as "Bond Jumping", and an additional warrant for the new offense of "Failure to Appear", or "Bond Jumping", shall be issued immediately by the court of nonappearance and, upon conviction, such person shall be subject to the following sentencing guidelines:

(a) If the crime for which the defendant failed to appear in court was a misdemeanor, the defendant shall be subject to a fine of not more than Two Thousand Dollars ($2,000.00) or imprisonment in the county jail for not more than one (1) year, or both.

(b) If the crime for which the defendant failed to appear in court was a felony, the defendant shall be subject to a fine of not more than Ten Thousand Dollars ($10,000.00) or imprisonment by the Mississippi Department of Corrections for not more than ten (10) years, or both.

(c) Upon conviction under either paragraph (a) or (b) of this section by order of the court, the defendant shall be ordered to make full payment of restitution for all reasonable documented expenses incurred returning the defendant to court by any law enforcement agency or by the surety on the bail bond.

(d) Failure of the prosecutor or law enforcement to pursue the prosecution of the defendant on the bench warrant or the "Failure to Appear", or "Bond Jumping", shall exonerate the surety of any liability on the defendant's bail bond and the bail bond shall be held for naught.

SECTION 14. This act shall take effect and be in force from and after July 1, 1997.