MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary B

By: Representative Dedeaux (By Request)

AN ACT TO AMEND SECTION 99-5-25, MISSISSIPPI CODE OF 1972, TO INCREASE THE RESPONSIBILITIES AND STANDARDS OF ACCOUNTABILITY THAT SURETIES AND BAIL BONDSMEN OWE TO THE COURT; TO REQUIRE THE COURT TO SET A MATTER FOR HEARING WHEN AN APPLICATION OR MOTION TO SET ASIDE A JUDGEMENT OF FORFEITURE IS TIMELY FILED; TO PROVIDE FOR THE REFUND OF THE AMOUNT OF A JUDGMENT ON BAIL WHEN A DEFENDANT IS SURRENDERED TO THE SHERIFF; TO PROVIDE FOR THE REVOCATION OF A SURETY'S LICENSE IF A FINAL JUDGEMENT IS NOT PAID AND HAS NOT BEEN SET ASIDE; TO AUTHORIZE A SURETY OR BONDSMAN TO SURRENDER THE DEFENDANT INTO THE CUSTODY OF THE LAW ENFORCEMENT OFFICIAL TO WHOM THE DEFENDANT WAS COMMITTED AT THE TIME BAIL WAS TAKEN; TO PROVIDE THAT THE DEPARTMENT OF INSURANCE SHALL NOT GRANT A LICENSE TO ANY CORPORATION OR SURETY COMPANY TO WRITE OR ISSUE BAIL BONDS IF ANY OF THE DIRECTORS, OFFICERS OR STOCKHOLDERS OF THE COMPANY WERE IN THE PAST OR ARE CURRENTLY DIRECTORS, OFFICERS OR STOCKHOLDERS OF A SURETY COMPANY WHICH PREVIOUSLY HAS ITS LICENSE REVOKED AND WHICH STILL HAS AN UNSATISFIED JUDGMENT AGAINST IT ON A SURETY BOND; TO REQUIRE THE SURETY TO REFUND TO THE DEFENDANT THE TOTAL AMOUNT PAID BY THE DEFENDANT TO THE SURETY FOR THE BAIL BOND WHEN THE DEFENDANT IS SURRENDERED INTO THE CUSTODY OF THE LAW ENFORCEMENT OFFICIAL; TO AMEND SECTION 83-39-7, MISSISSIPPI CODE OF 1972, TO RAISE THE QUALIFICATION BOND AMOUNT REQUIRED FOR A PERSON TO BE A PROFESSIONAL BAIL AGENT AND RENEW SUCH BAIL AGENT LICENSE; TO AMEND SECTION 99-5-27, MISSISSIPPI CODE OF 1972, TO NOT ALLOW A BAIL AGENT TO POST BOND FOR A DEFENDANT THEN SURRENDER HIM AT THE NEXT TERM OF COURT; AND FOR RELATED PURPOSES. 

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

SECTION 1. Section 99-5-25, Mississippi Code of 1972, is amended as follows:

99-5-25. (1) If a defendant, prosecutor, or witness in any criminal case, proceeding, or matter, fails to appear for any proceeding as ordered by the court, then the court shall order the bail forfeited and a bench warrant issued at the time of nonappearance. The purpose of bail is to guarantee appearance and bail shall not be forfeited for any other reason. Upon declaration of such forfeiture the court shall issue a judgment nisi. The clerk of the court shall notify the surety of the forfeiture by writ of scire facias within five (5) working days of such order of judgment nisi either by personal service or by certified mail. The judgment nisi shall be returnable for ninety (90) days from the date of issuance. If during such period the defendant appears before the court or is arrested and surrendered, then the judgement nisi shall be set aside. If the surety fails to produce the defendant and does not provide to the court reasonable mitigating circumstances upon such showing, then the forfeiture shall be made final. Reasonable mitigating circumstances shall be that the defendant is incarcerated in another jurisdiction, that the defendant is hospitalized under a doctor's care, that the defendant is in a recognized drug rehabilitation program, that the defendant has been placed in a witness protection program and it shall be the duty of any such agency placing such defendant into a witness protection program to notify the court and the court to notify the surety, or any other reason justifiable to the court.

(a) Whenever any defendant who has given bail or who has become bound by recognizance to appear in any criminal case, proceeding, or matter, fails to appear as lawfully required, the court shall:

(i) Immediately have the clerk of the court call the name of the defendant who has given bail and of the sureties providing a bail bond for the defendant in open court and if they shall fail to answer the call of the clerk, their default shall be entered, and the entry shall be evidence of the breach of their appearance;

(ii) Upon an entry of default as provided above, immediately enter up a judgment of forfeiture in favor of the state and against the defendant and the surety on the bond, jointly and severally, for the full amount of the penalty, and shall cause execution to issue thereon immediately after the expiration of thirty (30) days from the date that the notice is given via certified mail, return receipt requested, to the defendant at his or her last known address and to the surety on any bond, of the entry of the judgment in favor of the state, unless before the expiration of thirty (30) days from the date that the notice is given, a motion or application of the defendant or the surety, to vacate the judgment of forfeiture is filed with the court.

(b) In the event the defendant who has given bail has posted a cash bail bond, the clerk shall hold the same as funds of the clerk's office and shall not refund to the person any portion thereof unless the person makes a motion or application to set aside the judgment of forfeiture and the motion is sustained for reasonable mitigating circumstances as provided in subsection (1) of this section.

(2) If a final judgment is entered against a surety licensed by the Department of Insurance and has not been set aside after ninety (90) days, or later if such time is extended by the court issuing the judgment nisi, then the court shall order the department to revoke the authority of such surety to write bail bonds. The commissioner shall, upon notice of the court, notify said surety within five (5) working days of receipt of revocation. 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 surety and all agents of the surety and shall notify the sheriff of every county of such revocation.

(3) If within twelve (12) months of the date of the final forfeiture the defendant appears for court, is arrested or surrendered to the court, or if the defendant is found to be incarcerated in another jurisdiction and a hold order placed on the defendant, then the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the court upon application by the surety.

SECTION 2. (1) If an application or motion to set aside the judgment of forfeiture is timely filed, the court shall set the matter for a hearing.

(2) If the defendant does not appear at the hearing and the surety does not provide to the court reasonable mitigating circumstances as provided in Section 99-5-25 for the failure of the appearance of the defendant, then the motion shall be denied and execution on the judgment shall issue unless the surety immediately pays to the clerk the amount of the judgment.

SECTION 3. (1) When the surety pays the amount of the judgment without the necessity of an execution on the judgment, the clerk shall hold the funds as funds of the clerk's office for a period of three hundred sixty (360) days. The clerk shall make a refund to the surety only:

(a) If, within sixty (60) days of the payment of the amount of the judgment to the clerk, the defendant voluntarily surrenders himself to the sheriff of the county; or

(b) If the defendant's surety shall at its own expense deliver the defendant into the custody of the sheriff within sixty (60) days of the payment of the amount of the judgment to the clerk.

(2) Upon receipt of a written order from the court, the clerk shall refund to the surety the full amount of the judgment, less any costs and expenses due to the clerk in connection with such refund. In the event the defendant surrenders or is delivered to the custody of the sheriff after the sixty-day period, then the surety shall be charged a ten percent (10%) late surrender fee for each thirty-day period which transpires following the initial sixty-day period.

SECTION 4. (1) If a final judgment is entered against a surety licensed by the Department of Insurance and has not been set aside as provided in this act, and the final judgment remains unpaid for a period of one hundred eighty (180) days following levy of execution thereon, then the court shall order the department to revoke the authority of the surety to write bail bonds.

(2) Upon notice of the court, the commissioner shall notify the surety of receipt of revocation within five (5) working days. 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 surety and all agents of the surety and shall notify the sheriff of every county of such revocation. Neither the surety, its agents, officers, or any of its stockholders shall be granted a renewal of a license or a new license until the final judgment is satisfied in full or the defendant is surrendered to the sheriff.

(3) The Department of Insurance shall not grant a license to any corporation or surety company to write or issue bail bonds, if any of the directors, officers or stockholders of the applicant company were in the past or are currently directors, officers or stockholders of a surety company which previously had its license revoked and which still has an unsatisfied judgment against it on a surety bond.

SECTION 5. (1) At any time before there has been a breach of the undertaking in any type of bail, the surety or bondsman may surrender the defendant to the official to whose custody the defendant was committed at the time bail was taken, or to the official into whose custody the defendant would have been given. In all such cases the surety shall refund to the defendant the total amount paid by the defendant to the surety for the bail bond by delivering, within twenty-four (24) hours after surrender of such defendant, the entire refund to the account maintained for the defendant by the officer charged with his detention. The court, on motion of the surety and after notice and opportunity for hearing is given to the defendant, shall order the return to the surety of his fee upon a showing that good cause existed for the surrender of the defendant.

(2) At the time of the surrender by a surety of each defendant, the surety shall give written notice to the defendant of his right to receive a refund of the amount paid by the defendant to the surety for the bail bond.

(3) If any surety fails to deliver to any defendant written notice to the right to receive a refund of the bail bond fee, he shall be fined One Hundred Dollars ($100.00) payable to the court which has ordered the defendant's detention.

(4) If any surety fails to refund the amount paid for the bail bond to a defendant, he shall be fined One Hundred Dollars ($100.00).

(5) This section shall not apply to a defendant surrendered pursuant to a court order or warrant.

SECTION 6. 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 Ten Thousand Dollars ($10,000.00) 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 Twenty Thousand Dollars ($20,000.00). The qualification bond shall be made by depositing with the commissioner the aforesaid amount of cash or bonds of the United States, State of Mississippi, or any agency or subdivision thereof, or shall be written by an insurer as defined in this chapter, shall meet the specifications as may be required and defined in this chapter, and shall meet such specifications as may be required and approved by the department. The 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 bond forfeited. The 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 any bond issued by a professional bail agent is declared forfeited and judgment entered thereon by a court of proper jurisdiction and the amount of the bond is not paid within ninety (90) days, that court shall order the department to declare the qualification bond of the professional bail agent to be forfeited and the license revoked. The department shall then order the surety on the qualification bond to deposit with the court an amount equal to the amount of the bond issued by the professional bail agent and declared forfeited by the court, or the amount of the qualification bond, whichever is the smaller amount. The department shall, after hearing held upon not less than ten (10) days' written notice, suspend the license of the professional bail agent until such time as another qualification bond in the required amount is posted with the department. The revocation of the license of the professional bail agent shall also serve to revoke the license of each soliciting bail agent and bail enforcement agent employed or used by such professional bail agent. In the event of a final judgment of forfeiture of any bail bond written under the provisions of this chapter, the amount of money so forfeited by the final judgment of the proper court, less all accrued court costs and excluding any interest charges or attorney's fees, shall be refunded to the bail agent or his insurance company upon proper showing to the court as to which is entitled to same, provided the defendant in such cases is returned to the sheriff of the county to which the original bail bond was returnable within twelve (12) months of the date of such final judgment, or proof made of incarceration of the defendant in another jurisdiction, and that "hold order" has been placed upon the defendant for return of the defendant to the sheriff upon release from the other jurisdiction, then the bond forfeiture shall be stayed and remission made upon petition to the court, in the amount found in the court's discretion to be just and proper. A bail agent licensed under this chapter shall have a right to apply for and obtain from the proper court an extension of time delaying a final judgment of forfeiture if such bail agent can satisfactorily establish to the court wherein such forfeiture is pending that the defendant named in the bail bond is lawfully in custody outside of the State of Mississippi.

SECTION 7. Section 99-5-27, Mississippi Code of 1972, is amended as follows:

99-5-27. (1) (a) "Surrender" means the delivery of the defendant, principal on bond, physically to the sheriff or chief of police or in his absence, his jailer, and it is the duty of the sheriff or chief of police, or his jailer, to accept the surrender of the principal when presented and such act is complete upon the execution of verbal or written surrender notice presented by bail and shall relieve bail of liability on principal's bond.

(b) Bail may surrender principal if principal is found to be detained on another charge, or if principal is found incarcerated in another jurisdiction, bail may surrender him by verbal or written notice of surrender to the sheriff or chief of police, or his jailer, of that jurisdiction and the notice of surrender shall act as a "Hold Order" and upon presentation of written surrender notice to the court of proper jurisdiction, the court shall order a "Hold Order" placed on the principal for the court and shall relieve bail of liability on principal's bond.

(c) The surrender of principal by bail, within the time period provided in Section 99-5-25, shall serve to discharge its liability to the State of Mississippi and any of its courts; but if this be done after forfeiture of the bond or recognizance, the court shall set aside the judgment nisi or final judgment upon filing of surrender notice by bail.

(2) Bail, or its agent, at any time, upon request by the defendant or others on behalf of the defendant, may privately interview the defendant to obtain information to help with surrender before posting any bail bond on behalf of the defendant. All licensed bail agents shall have equal access to jails or detention facilities for the purpose of such interviews, the posting of bail bonds and the surrender of principal.

(3) Upon surrender, the court, after full review of the defendant and the pending charges, in open court, may discharge the prisoner on his giving new bail, but if he does not give new bail, he shall be detained in jail.

SECTION 8. This act shall take effect and be in force from and after July 1, 1998.