House Bill 1310

AN ACT TO PROVIDE THAT CERTAIN BONDS SHALL NOT BE FORFEITED AS A RESULT OF HURRICANE KATRINA; TO PROVIDE FACTORS FOR THE COURT TO CONSIDER REGARDING SUCH BONDS; TO AMEND SECTION 99-5-25, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.

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

SECTION 1. Any bail bonds written in any court in Jackson, Harrison and Hancock Counties in the one-year period prior to August 29, 2005, shall not be subject to forfeiture for one (1) year from August 29, 2005. This suspension of forfeitures shall not apply to bonds already in the process of being revoked before August 29, 2005.

After the expiration of the suspension period, bonds may be subject to forfeiture on a case-by-case basis. Before a bond may be forfeited, the court shall provide notice to the bail agent underwriting the bond to show cause why the bond should not be forfeited. The bail agent shall request a hearing within thirty (30) days of receipt of such notice, which hearing shall be set by the court.

Before forfeiting the bond, the court shall consider, among other factors, the following: the circumstances due to Hurricane Katrina, that the affect on the defendant's whereabouts and the bail agent's ability to determine the defendant's whereabouts and whether or not justice and public safety will be served by forfeiture of the bond.

SECTION 2. Section 99-5-25, Mississippi Code of 1972, is amended as follows:

99-5-25. (1) (a) Except as otherwise provided in Section 1 of this act, if a defendant 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, with a copy of the judgment nisi and bench warrant attached thereto, within ten (10) working days of such order of judgment nisi either by personal service or by certified mail. Failure of the clerk to provide the required notice within ten (10) working days shall constitute prima facie evidence that the order should be set aside.

(b) 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 judgment 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 with a copy of the final judgment to be served on the surety. 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.

(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 3. This act shall take effect and be in force from and after its passage.