MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Business and Financial Institutions
By: Senator(s) Burton
AN ACT TO AMEND SECTIONS 83-39-1, 83-39-3, 83-39-7, 83-39-9 AND 83-39-15, MISSISSIPPI CODE OF 1972, TO REMOVE PERSONAL SURETIES FROM THE BAIL AND BAIL BONDSMEN LAW; TO REPEAL SECTION 83-39-8, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE TRANSFER OF A QUALIFICATION BOND; TO REPEAL SECTION 99-5-7, MISSISSIPPI CODE OF 1972, WHICH AUTHORIZES A FIDELITY OR SURETY COMPANY TO GIVE BAIL; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 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 is not licensed under this chapter who acts as
personal surety in instances where there is no compensation charged or received
for such service.
(e) "Soliciting bail agent" means any person who, as an agent or employee of a professional bail agent, or as an independent contractor, for compensation or otherwise, shall solicit, advertise or actively seek 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 assists in the apprehension and surrender of the defendant to the court or keeps the defendant under necessary surveillance.
(f) "Bail enforcement agent" means a person 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.
(g) "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.
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( * * *h) "Surety" means the
insurer or the personal surety * * * guaranteeing the bail bond and for the
purpose of process does not mean the agent of such insurer or personal surety * * *.
( * * *i) "Bail" means the use of
money, property or other security to cause the release of a defendant from
custody and secure the appearance of a defendant in criminal court proceedings,
or the monitoring or supervision of defendants who are released from custody on
recognizance, parole or probation, except when such monitoring or supervision
is conducted after conviction, sentencing or other adjudication and solely by
public employees.
SECTION 2. 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, soliciting 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) (a) No license shall be issued or renewed 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 soliciting bail agent and bail enforcement agent shall operate only under the professional bail agent's name. No license shall be issued to or renewed for any person who has ever been convicted of a felony or any crime involving moral turpitude or who is under twenty-one (21) years of age. No person engaged as a law enforcement or judicial official or attorney shall be licensed hereunder. A person who is employed in any capacity at any jail or corrections facility that houses state, county or municipal inmates who are bailable, whether the person is a public employee, independent contractor, or the employee of an independent contractor, may not be licensed under this section.
(b) (i) No person who is a relative of either a sworn state, county or municipal law enforcement official or judicial official, or an employee, independent contractor or the contractor's employee of any police department, sheriff's department, jail or corrections facility that houses or holds federal, state, county or municipal inmates who are bailable, shall write a bond in the county where the law enforcement entity or court in which the person's relative serves is located. "Relative" means a spouse, parent, grandparent, child, sister, brother, or a consanguineous aunt, uncle, niece or nephew. Violation of this prohibition shall result in license revocation.
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( * * *ii) No person licensed under this
chapter shall give legal advice or a legal opinion in any form.
(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 biennially on the last day of September, 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 that the authority of a soliciting bail agent or bail enforcement agent had been terminated by such professional bail agent. A soliciting bail agent or bail enforcement agent may, upon termination by a professional bail agent or upon his cessation of employment with a professional bail agent, be relicensed without having to comply with the provisions of subsection (7)(a) of this section, if he has held a license in his respective license category within ninety (90) days of the new application, meets all other requirements set forth in Section 83-39-5 and subsection (7)(b) of this section, and notifies the previous professional bail agent in writing that he is submitting an application for a new license. Licenses shall expire on the last day of September of each odd-numbered year.
(5) The department shall
prepare and deliver to each licensee a license showing the name, address and
classification of such licensee, and shall certify that the person is a
licensed professional bail agent, being designated as a * * * limited surety
agent, a soliciting bail agent or a bail enforcement agent. In addition, the
license, if for a soliciting bail agent or bail enforcement agent, shall show
the name of the professional bail agent and any other information as the
commissioner deems proper.
(6) The commissioner, after a hearing under Section 83-39-17, may refuse to issue a privilege license for a soliciting bail agent to change from one (1) professional bail agent to another if he owes any premium or debt to the professional bail agent with whom he is currently licensed. The commissioner, after a hearing under Section 83-39-17, shall refuse to issue a license for a limited surety agent if he owes any premium or debt to an insurer to which he has been appointed. If a license has been granted to a limited surety agent or a soliciting bail agent who owed any premium or debt to an insurer or professional bail agent, the commissioner, after a hearing under Section 83-39-17, shall revoke the license.
(7) (a) Before the issuance of any initial professional bail agent, soliciting bail agent or bail enforcement agent license, the applicant shall submit proof of successful completion of forty (40) classroom hours of prelicensing education approved by the Professional Bail Agents Association of Mississippi, Inc., and conducted by persons or entities approved by the Professional Bail Agents Association of Mississippi, Inc. All applicants for a soliciting bail agent or bail enforcement agent license applying for such license after July 1, 2013, shall successfully complete a limited examination by the department for the restricted lines of business. The hours required by this subsection shall be classroom hours and may not be acquired through correspondence or over the Internet. Any applicant who has been properly licensed under this chapter within ninety (90) days of submitting an application for a different license type shall not be subject to the prelicensing education requirement.
(b) Beginning on July 1, 2011, in order to assist the department in determining an applicant's suitability for a license under this chapter, the applicant shall submit a set of fingerprints with the submission of an application for license. The department shall forward the fingerprints to the Department of Public Safety for the purpose of conducting a criminal history record check. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. Fees related to the criminal history record check shall be paid by the applicant to the commissioner and the monies from such fees shall be deposited in the special fund in the State Treasury designated as the "Insurance Department Fund."
(8) (a) Before the renewal of the license of any professional bail agent, soliciting bail agent or bail enforcement agent, the applicant shall submit proof of successful completion of continuing education hours as follows:
(i) There shall be no continuing education required for the first year of an original license;
(ii) Except as provided in subparagraph (i), eight (8) classroom hours of continuing education for each year or part of a year of the two-year license period, for a total of sixteen (16) hours per license period.
(b) If an applicant for renewal failed to obtain the required eight (8) hours for each year of the license period during the actual license year in which the education was required to be obtained, the applicant shall not be eligible for a renewal license but shall be required to obtain an original license and be subject to the education requirements set forth in subsection (7). The commissioner shall not be required to comply with Section 83-39-17 in denying an application for a renewal license under this paragraph (b).
(c) The education hours required under this subsection (8) shall consist of classroom hours approved by the Professional Bail Agents Association of Mississippi, Inc., and provided by persons or entities approved by the Professional Bail Agents Association of Mississippi, Inc. The hours required by this subsection shall be classroom hours and may not be acquired through correspondence or over the Internet.
(d) The continuing education requirements under this subsection (8) shall not be required for renewal of a professional bail agent license for any applicant who is sixty-five (65) years of age and who has been licensed as a professional bail agent for a continuous period of twenty (20) years immediately preceding the submission of the application as evidenced by submission of an affidavit, under oath, on a form prescribed by the department, signed by the licensee attesting to satisfaction of the age, licensing, and experience requirements of this paragraph (d).
(9) No license as a professional bail agent shall be issued unless the applicant has been duly licensed by the department as a soliciting bail agent for a period of three (3) consecutive years immediately preceding the submission of the application. However, this subsection (9) shall not apply to any person who was licensed as a professional bail agent before July 1, 2011.
(10) A nonresident person may be licensed as a professional bail agent, bail soliciting agent or bail enforcement agent if:
(a) The person's home state awards licenses to residents of this state on the same basis; and
(b) The person has satisfied all requirements set forth in this chapter.
SECTION 3. Section 83-39-7, Mississippi Code of 1972, is amended as follows:
83-39-7. (1) * * *
Bail shall be given to the sheriff or officer
holding the defendant in custody by a fidelity of surety insurance company
authorized to act as surety within the State of Mississippi. Any such company
may execute the undertaking as surety by the hand of officer or attorney
authorized thereto by resolution of its board of directors, a certified copy of
which, under its corporate seal, shall be on file with the clerk of the circuit
court and the sheriff of the county, and such authority shall be deemed in full
force and effect until revoked in writing by notice to the clerk and sheriff.
If any bond issued by a professional bail agent is declared forfeited and
judgment entered thereon by a court of proper jurisdiction as authorized in
Section 99-5-25, and the amount of the bond is not paid within ninety (90)
days, that court shall order the department to * * * revoke the license
of the professional bail agent. If the bond was not forfeited correctly
under Section 99-5-25, it shall be returned to the court as uncollectible. The
department shall then order the surety * * * 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 * * *. 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 * * * a 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 a "Hold
Order" has been placed upon the defendant for return of the defendant to
the sheriff upon release from the other jurisdiction, the return to the sheriff
to be the responsibility of the professional bail agent as provided in
subsection (2) of this section, 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.
(2) The qualification bond may be released by the department to the professional bail personal surety agent upon an order to release the qualification bond issued by a court of competent jurisdiction, or upon written request to the department by the professional bail personal surety agent no earlier than five (5) years after the expiration date of his last license.
SECTION 4. 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 * * * shall issue to the applicant a license to do
business as a professional bail agent, soliciting 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 5. 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, a license to engage in the business of professional bail agent, soliciting 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.
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( * * *b) Material misstatement,
misrepresentation or fraud in obtaining the license.
( * * *c) 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.
( * * *d) Conviction of felony or crime
involving moral turpitude.
( * * *e) Default in payment to the court
should any bond issued by such bail agent be forfeited by order of the court.
( * * *f) Being elected or employed as a law
enforcement or judicial official.
( * * *g) Engaging in the practice of law.
( * * *h) Writing a bond in violation of
Section 83-39-3(2)(b)(i) and (ii).
( * * *i) Giving legal advice or a legal
opinion in any form.
( * * *j) Acting as or impersonating a bail
agent without a license.
(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 6. Section 83-39-8, Mississippi Code of 1972, which provides for the transfer of a qualification bond, is repealed.
SECTION 7. Section 99-5-7, Mississippi Code of 1972, which authorizes a fidelity or surety insurance company to give bail, is repealed.
SECTION 8. This act shall take effect and be in force from and after July 1, 2014.