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Model Legislation

Public Safety and Elections

Bail Forfeiture Payments Act
Summary

Did you know the
NRA--the National
Rifle Association-was the corporate
co-chair in 2011?

This Act requires a bail agent to pay all forfeiture judgments in a timely manner.
No further bonds may be accepted from that agent anywhere in the state until the
judgment is satisfied. This legislation intends to eliminate fly-by-night bonding
practices.
Model Legislation
Section 1. {Definitions}
Section 2. {Forfeiture upon Failure to Appear} Upon the defendant having
failed to appear at a required court appearance, the court shall declare the bail
bond to be forfeited. The clerk of the court shall mail a notice of the forfeiture to
both the surety and bail agent within fifteen (15) days of the non-appearance and
order of forfeiture. A certificate signed by the clerk of the court or the court’s
designee, made under penalty of perjury, certifying that the notice required herein
was mailed on a specific date and accompanied by a copy of the required notice,
shall constitute sufficient proof that such mailing was properly accomplished as
indicated herein. The failure of the court or its designee to mail the notice as
indicated herein shall result in the setting aside of the forfeiture and exoneration of
the bail bond or money deposited. In all other cases, the forfeiture shall be pain in
full within sixty (60) days of the date appearing on the certificate of mailing on the
forfeiture notice.
Section 3. {Forfeiture to Judgment}
(A). If the forfeiture is not paid or set aside by order of a court of competent
jurisdiction within sixty (60) days from the date of the mailing of the notice of
forfeiture, the clerk of the court for the county where the order of forfeiture was
made shall enter a judgment against the surety for the penal amount of the bond.
Within ten (10) days, the clerk shall furnish the Department of Insurance with a
certified copy of the judgment and shall furnish the surety company at its home
office a copy of the judgment, which shall reference the power of attorney number
of the bond and the name of the executing agent. If the judgment is not paid within
thirty (30) days, the clerk shall furnish the Department of Insurance and the sheriff
of the county in which the bond was executed, or the official responsible for the
operation of that county’s jail, if other than the sheriff, two (2) copies of the
judgment and a certificate stating that the judgment remains unsatisfied.
(B). Surety bail bonds may not be executed anywhere in the state by any agent of
the judgment debtor surety if a judgment has been entered which then remains
unpaid, and the Department of Insurance shall notice the surety to this effect. No
sheriff or other official empowered to accept or approve bail bonds anywhere in the
state shall accept of approve a bond from an agent or surety company that has
failed to pay a judgment after thirty-five (35) days from the entry of the judgment,
until such judgment ahs been paid in full.
(C). When and if the judgment is satisfied or an order to vacate the judgment is
entered by a court of competent jurisdiction, the clerk shall immediately notify the
sheriff, or other official responsible for the operation of the county jail, if other than
the sheriff, and the Department of Insurance of such payment or order vacating the
judgment. The Department of Insurance shall thereupon notice the surety of their
reinstatement.
Section 4. {Relief from Forfeitures Requirement}
(A). If a motion to set the forfeiture or judgment is filed, as a condition of such
filing and any subsequent order staying the enforcement of the judgment, the bail
agent or surety shall pay the full amount of the judgment, in cash, to the clerk of
the court. Such payment will be held in escrow by the court until such time as the
court has ruled on the motion. The filing of such motion, when accompanied by the
required escrow deposit, shall act as an automatic stay on further proceedings,
including execution of the judgment and notice to the Department of Insurance and

including execution of the judgment and notice to the Department of Insurance and
sheriff, until such motion has been heard and a decision rendered by the court.

Exposed

By the Center for
Media and Democracy
www.prwatch.org

(B). If an appeal is taken from the court’s adverse ruling on a motion to set aside,
that ruling may be appealed from, but there shall be no stay of collection
proceedings absent the cash escrow remaining in place. Should a motion on appeal
be ruled upon in favor of the surety, the escrowed funds shall be fully remitted
within then (10) days after certified copy of the order is delivered to the clerk.
Section 5. {Remission of Forfeiture}
(A). In the event that a forfeiture is paid, on application by the bail agent or surety
brought at any time within three (3) years from the date of payment, the court
shall order remission of the payment according to the below-described terms:
1. That the bond is, for any cause, not a valid and binding undertaking in law. If it
be valid and binding as to the principal, and one or more of his sureties, if any,
they shall not be exonerated from liability because of its being invalid and not
binding as to another surety or sureties, if any. If it be invalid and not binding as to
the principal, each of the sureties, if any, shall be exonerated by liability. If it be
valid and binding as to the principal, but not so as to the sureties, if any, the
principal shall not be exonerated, but the sureties, if any, shall be.
2. The death of the principal before the forfeiture was taken.
3. The sickness of the principal or some uncontrollable circumstance which
prevented his appearance at court, and it must, in every such case, be shown that
his failure to appear arose from no fault on his part.
4. Failure to present an indictment or information at the first term of the court
which may be held after the principal has been admitted to bail, in a case where
the party was bound over before indictment
or information, and the prosecution has not been continued by order of the court.
5. The incarceration of the principal in any jurisdiction in the United States. A
surety exonerated under (5) remains obligated to pay costs of court, and any
reasonable and necessary costs incurred by a county to secure the return of the
principal.
(B). For other good cause shown, the court in its discretion may remit to the surety
all or part of the amount of the bond after deducting the costs of court and any
reasonable necessary costs to the county for the return of the principal.
Section 6. {Severability}
Section 7. {Effective Date}
Adopted by the Criminal Justice Task Force at the States and Nation Policy Summit,
December 4, 2004. Approved by the ALEC Board of Directors January 7, 2005.

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Center for Media
and Democracy's
quick summary:
This Act purports to prevent "fly by night" bail-bond operations from operating in a state, but in reality is likely to benefit large bail bond corporations that
have more political influence. Typically, an accused person pays a bondsman 10% of their bail, with the understanding that the bondsman is liable for
the full amount of the bail if the person fails to appear at court; this Act states that a bail bondsman cannot issue new bonds if it fails to pay the bail owed
within a particular timeframe. However, this Act does not prohibit a court from setting aside the amount owed by a bail bondsman; there is a long history
of bail-bondsmen successfully influencing judges and courts, so more powerful and influential bail bond companies might still avoid these obligations in
the first place, if a court sets aside the amount they owe. Also notable are the provisions under which the bondsman's debts can be forgiven (Sect. 5); if
for any reason a bond contract is found invalid, even if it has nothing to do with the bondsman, the debt is forgiven.