2007-2008 Bill 778: Surety Bonds - South Carolina Legislature Online

1 South Carolina General Assembly 2 117th Session, 2007-2008 3 4 S. 778 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senator Knotts 10 Document Path: l:\council\bills\ms\7334ahb07.doc 11 12 Introduced in the Senate on May 22, 2007 13 Currently residing in the Senate Committee on Banking and Insurance 14 15 Summary: Surety bonds 16 17 18 HISTORY OF LEGISLATIVE ACTIONS 19 20 Date Body Action Description with journal page number 21 5/22/2007 Senate Introduced and read first time SJ-8 22 5/22/2007 Senate Referred to Committee on Banking and Insurance SJ-8 23 24 25 VERSIONS OF THIS BILL 26 27 5/22/2007 28 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 38-53-40, CODE OF LAWS OF SOUTH 12 CAROLINA, 1976, RELATING TO THE SURETY 13 QUALIFICATIONS, SO AS TO DELETE THE LANGUAGE 14 REGARDING AN INSURER REPRESENTED BY A SURETY 15 BONDSMAN; TO AMEND SECTION 38-53-50, RELATING TO 16 A SURETY’S RELIEF FROM BOND, SURRENDER OF A 17 DEFENDANT, AND THE FILING OF A NEW 18 UNDERTAKING, SO AS TO DELETE THAT A SURETY MAY 19 BE RELIEVED FOR NONPAYMENT OF FEES AND TO 20 CREATE A TEN-DOLLAR FILING FEE WHEN RELIEF FROM 21 BOND IS SOUGHT BY A SURETY; TO AMEND SECTION 22 38-53-70, AS AMENDED, RELATING TO ISSUANCE OF A 23 BENCH WARRANT FOR FAILURE TO APPEAR, SO AS TO 24 REQUIRE NOTIFICATION OF THE SURETY WITHIN A 25 CERTAIN TIMEFRAME OF THE ISSUANCE OF THE BENCH 26 WARRANT AND TO INCREASE THE TIME PERIOD AFTER 27 WHICH BOND IS FORFEITED FROM THIRTY DAYS TO 28 NINETY DAYS AFTER THE ISSUANCE OF THE BENCH 29 WARRANT; TO AMEND SECTION 38-53-85, RELATING TO 30 EDUCATIONAL REQUIREMENTS OF A PROFESSIONAL 31 BONDSMAN, SURETY BONDSMAN, AND RUNNERS, SO 32 AS TO DELETE AN OBSOLETE REFERENCE; TO AMEND 33 SECTION 38-53-170, RELATING TO PROHIBITIONS 34 REGARDING A PROFESSIONAL BONDSMAN, SURETY 35 BONDSMAN, OR RUNNER, SO AS TO REPLACE THE TERM 36 “PRINCIPAL” WITH THE TERM “INDEMNITOR”; AND TO 37 AMEND SECTION 38-53-260, RELATING TO 38 REGISTRATION OF PROFESSIONAL BONDSMAN OR 39 SURETY BONDSMAN’S LICENSE AND THE CURRENT 40 POWER OF APPOINTMENT, SO AS TO MANDATE THAT 41 ALL JAILS POST THE NAME AND TELEPHONE NUMBER

1 [778] 1 1 OF EACH LICENSED BONDING OR SURETY COMPANY 2 FOR A FIFTY-DOLLAR ANNUAL FEE. 3 4 Be it enacted by the General Assembly of the State of South 5 Carolina: 6 7 SECTION 1. Section 38-53-40 of the 1976 Code is amended to 8 read: 9 10 “Section 38-53-40. Each surety for the release of a person on 11 bail must be qualified as: 12 (a) (1) an insurer and represented by a surety bondsman; 13 (b) (2) a professional bondsman; or 14 (c) (3) an accommodation bondsman.” 15 16 SECTION 2. Section 38-53-50 of the 1976 Code is amended to 17 read: 18 19 “Section 38-53-50. (A) A surety desiring to be relieved on a 20 bond for “good cause” or the nonpayment of fees shall file with the 21 court a motion to be relieved on the bond and shall pay a ten - dollar 22 filing fee to be used by the clerk of court in his discretion. A copy 23 of the motion must be served upon the defendant, his attorney, and 24 the solicitor’s office, and the magistrates or municipal court, as 25 appropriate. The court then shall then schedule a hearing to 26 determine if the surety should be relieved on the bond and advise 27 all parties of the hearing date. 28 (B) If the circumstances warrant immediate incarceration of the 29 defendant to prevent imminent violation of any one of the specific 30 terms of the bail bond, or if the defendant has violated any one of 31 the specific terms of the bond, the surety may take the defendant to 32 the appropriate detention facility for holding until the court orders 33 that the surety be relieved. The surety immediately must 34 immediately file with the detention facility and the court an 35 affidavit stating the facts to support the surrender of the defendant 36 for good cause or the nonpayment of fees. When the affidavit is 37 filed with the court, the surety must also file a motion to be 38 relieved on the bond pursuant to subsection (A). A surety who 39 surrenders a defendant and files an affidavit which does not show 40 good cause or the nonpayment of fees is subject to penalties 41 imposed for perjury as provided for in pursuant to Article 1, 42 Chapter 9 of Title 16.

1 [778] 2 1 (C) After the surety has been is relieved by order of the court, a 2 new undertaking must be filed with the appropriate court in order 3 to secure the re-release subsequent release of the defendant. The 4 undertaking must contain the same conditions included in the 5 original bond unless the conditions have been changed by the 6 court.” 7 8 SECTION 3. Section 38-53-70 of the 1976 Code, as last amended 9 by Act 329 of 2002, is further amended to read: 10 11 “Section 38-53-70. If a defendant fails to appear at a court 12 proceeding to which he has been summoned, the court must issue a 13 bench warrant for the defendant. The surety must be notified by 14 the solicitor’s office or magistrates or municipal court by first class 15 mail no later than three days after issuance of a bench warrant. If 16 the surety fails to surrender the defendant or place a hold on the 17 defendant’s release from incarceration, commitment, or 18 institutionalization within thirty ninety days of the issuance of the 19 bench warrant, the bond shall be is forfeited. At any time Before 20 execution is issued on a judgment of forfeiture against a defendant 21 or his surety, the court may direct that the judgment be remitted in 22 whole or in part, upon conditions as the court may impose, if it 23 appears that justice requires the remission of part or all of the 24 judgment. In making a determination as to remission of the 25 judgment, the court shall consider the costs to the State or any a 26 county or municipality resulting from the necessity to continue or 27 terminate the defendant’s trial and the efforts of law enforcement 28 officers or agencies to locate the defendant. The court in its 29 discretion may must permit the surety to pay the estreatment in 30 installments for a period of up to six months; however, the surety 31 must pay a handling fee to the court in an amount equal to four 32 percent of the value of the bond which must be retained by the 33 clerk of court to be used in his discretion. The clerk of court is 34 authorized to suspend the surety for failure to satisfy a final 35 estreatment judgment order by the court. If, at any time during the 36 period in which installments are to be paid, the defendant is 37 surrendered to the appropriate a detention facility and the surety 38 complies with the re-commitment recommitment procedures, the 39 surety is relieved of any further liability.” 40 41 SECTION 4. Section 38-53-85(C) of the 1976 Code is amended 42 to read: 43

1 [778] 3 1 “(C) The South Carolina Bail Agent’s Association or any other 2 Any group or association approved by the Department of 3 Insurance to provide educational courses to bondsmen must 4 establish an educational curriculum for bondsman licensure. The 5 Department of Insurance must approve the courses offered and 6 ensure that the courses meet the standards for education 7 established by this section and the department. The requirement of 8 course work for licensure is not satisfied by a mail order course. 9 The department must also approve a written examination to be 10 administered by all groups who provide educational courses to be 11 administered at the conclusion of the twenty-hour course work.” 12 13 SECTION 5. Section 38-53-170 of the 1976 Code is amended to 14 read: 15 16 “Section 38-53-170. No bondsman or runner A professional 17 bondsman, surety bondsman, or runner may not: 18 (a)(1) pay a fee or rebate or give or promise anything of value, 19 directly or indirectly, to a jailer, law enforcement officer, 20 committing magistrate, or any other another person who has power 21 to arrest or hold in custody, or to any a public official or public 22 employee in order to secure a settlement, compromise, remission, 23 or reduction of the amount of any a bail bond or the forfeiture of 24 the bail bond, including the payment to the law enforcement 25 officers, directly or indirectly, for the arrest or apprehension of a 26 principal or principals who have caused a forfeiture; 27 (b)(2) pay a fee or rebate or give anything of value to an 28 attorney in bail bond matters, except in defense of any an action on 29 a bond; 30 (c)(3) pay a fee or rebate or give or promise anything of value 31 to the principal or anyone in on his behalf; 32 (d)(4) participate in the capacity of an attorney at a trial or 33 hearing of one on whose bond he is surety, nor suggest or advise 34 the employment of or name for employment any a particular 35 attorney to represent the principal; 36 (e)(5) accept anything of value from a principal an indemnitor 37 except the premium, which may not exceed fifteen percent of the 38 face amount of the bond, with a minimum fee of twenty-five 39 dollars. However, the bondsman is permitted to accept collateral 40 security or other indemnity from the principal indemnitor which 41 must be returned upon final termination of liability on the bond. 42 The bondsman shall identify who is paying the premium and shall 43 represent that the collateral security or other indemnity has not

1 [778] 4 1 been obtained from any a person who has a greater interest in the 2 principal’s indemnitor’s disappearance than appearance for trial. 3 The collateral security or other indemnity required by the 4 bondsman must be reasonable in relation to the amount of the 5 bond; 6 (f)(6) solicit business in any one of the courts or on the 7 premises of any one of the courts of this State, in the office of any 8 a magistrate, or in or about any a place where prisoners are 9 confined. Law enforcement officers and jailers shall report any 10 violations of this provision to the court. Any Action taken 11 pursuant to this provision resulting in a conviction, guilty plea, or 12 plea of nolo contendere pursuant to Section 38-53-340 must be 13 reported to the director or his designee by the court within thirty 14 days; 15 (g)(7) advise or assist the principal indemnitor for the purpose 16 of forfeiting bond.” 17 18 SECTION 6. Section 38-53-260 of the 1976 Code is amended to 19 read: 20 21 “Section 38-53-260. (A) No A professional bondsman or 22 surety bondsman may not become a surety on an undertaking 23 unless he has registered his current license in the office of the clerk 24 of the circuit court in the county in which he resides and registered 25 a certified copy of the license with the clerk of the circuit court in 26 any other another county in which he writes bail bonds. 27 (B) A surety bondsman also shall also annually register 28 annually a certified copy of his current power of appointment with 29 the clerk of the circuit court where he resides and in any other 30 another county where he writes bail bonds on behalf of an insurer. 31 (C) All jails shall post the name and telephone number of each 32 bonding or surety company licensed by the Department of 33 Insurance for a fee of not more than fifty dollars annually.” 34 35 SECTION 7. This act takes effect upon approval by the 36 Governor. 37 ----XX---- 38

1 [778] 5