H. B. 4434

         (By Delegates Barrett, Morgan, Guthrie, Reynolds,

                    Caputo, Iaquinta and Diserio)

         [Introduced February 7, 2014; referred to the

         Committee on the Judiciary.]

A BILL to amend and reenact §51-10-1, §51-10-2, §51-10-3, §51-10-4, §51-10-5, §51-10-6, §51-10-7, §51-10-8, §51-10-9 and §51-10-10 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §51-10-5a, all relating generally to bail bondsmen in criminal cases; defining terms; granting the Insurance Commissioner of West Virginia licensing and regulatory authority; setting forth additional qualifications; setting forth licensing requirements; setting forth bonding requirements; requiring notice be given; prohibiting certain persons from recommending specific bondsmen; increasing a monetary penalty; and making stylistic changes.

Be it enacted by the Legislature of West Virginia:

    That §51-10-1, §51-10-2, §51-10-3, §51-10-4, §51-10-5, §51-10-6, §51-10-7, §51-10-8, §51-10-9 and §51-10-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §51-10-5a, all to read as follows:

ARTICLE 10. PROFESSIONAL BAIL BONDSMEN IN CRIMINAL CASES.

§51-10-1. Definitions.

    For the purposes of this article the following terms have the following definitions:

    The words "Bonding business" as used in this article mean “Bonding business” means the business of becoming surety for compensation upon bonds in criminal cases in the State of West Virginia. and the word "bondsman"

    “Bail bondsman” means any person or corporation engaged either as principal or as agent, clerk, or representative of another in such business who has satisfied the requirements for being a property and casualty insurance producer as set forth by the Insurance Commissioner of West Virginia and who furnishes to the commissioner either a qualifying power of attorney issued by an authorized insurer or sufficient collateral to qualify as self-insurer.

     “Insurer” means any domestic, foreign or alien surety company which has been qualified generally to transact surety business in the State of West Virginia.

    “Self-insurer” means any person engaged in the bonding business as a bail bondsman who pledges his or her own property as collateral for the bonds on which they serve as surety for compensation. The aggregate sum of liability for the total amount of bonds provided by such a person may not exceed two times the amount of collateral.

§51-10-2. Business impressed with public interest.

    The business of becoming surety for compensation upon bonds in criminal cases in the State of West Virginia is impressed with a public interest. In order to become eligible for licensure by the Insurance Commissioner of West Virginia as a property and casualty producer eligible to provide bail bonds in criminal cases, each applicant must submit, with their application for the same, a criminal history background check. That background check shall be free from any criminal charge indicating they are a person of poor character.

§51-10-3. Procuring business through official or attorney for consideration prohibited.

    (a) It shall be unlawful for any person engaged, either as principal or as the clerk, agent, or representative of a corporation, or another person in the business, of becoming surety upon bonds for compensation in the State of West Virginia, either directly or indirectly, to give, donate, lend, contribute, or to promise to give, donate, loan, or contribute any money, property, entertainment, or other thing of value whatsoever to any attorney at law, police officer, sheriff, deputy sheriff, constable, jailer, probation officer, clerk, or other attache of a criminal court, or public official of any character, for procuring or assisting in procuring any person to employ said bondsman to execute as surety any bond for compensation in any criminal case in the State of West Virginia. and it shall be

    (b) It is unlawful for any attorney at law, police officer, sheriff, deputy sheriff, constable, jailer, probation officer, clerk, bailiff, or other attache of a criminal court, or public official, of any character, to accept or receive from any such person engaged in the bonding business any money, property, entertainment, or other thing of value whatsoever for procuring or assisting in procuring any person to employ any bondsman to execute as surety any bond for compensation in any criminal case. in the State of West Virginia.

§51-10-4. Attorneys procuring employment through official or bondsman for consideration prohibited.

    It shall be is unlawful for any attorney at law, either directly or indirectly, to give, loan, donate, contribute, or to promise to give, loan, donate, or contribute any money, property, entertainment, or other thing of value whatsoever to, or to split or divide any fee or commission with, any bondsman, police officer, sheriff, deputy sheriff, constable, probation officer, assistant probation officer, bailiff, clerk or other attache of any criminal court for causing or procuring or assisting in causing or procuring any person to employ such the attorney to represent him or her in any criminal case. in the State of West Virginia.

§51-10-5. Receiving other than regular fee for bonding prohibited; bondsman prohibited from endeavoring to secure dismissal or settlement.

    It shall be (a) It is lawful to charge a premium for executing any bond in a criminal case in the State of West Virginia. and it shall be

    (b) It is unlawful for any person or corporation engaged in the bonding business, either as principal, or clerk, agent or representative of another, either directly or indirectly, to charge, accept, or receive any sum of money, or other thing of value, other than the bonding fee from any person for whom he or she has executed bond, for any other service whatever performed in connection with any indictment or charge upon which said person is bailed or held in the State of West Virginia, or in any counties where the court has regulated bonding fees pursuant to section eight nine of this article. it shall be

    (c) It is unlawful for any person or corporation engaged in the bonding business, either as principal, clerk, agent, or representative of another, either directly or indirectly, to charge, accept, or receive any sum of money or other thing of value other than the duly authorized maximum bonding fee, from any person for whom he or she has executed bond, for any other service whatever performed in connection with any indictment or charge upon which said person is bailed or held in the State of West Virginia.     It also shall be (d) It is unlawful for any person or corporation engaged either as principal or as agent, clerk, or representative of another in the bonding business, to settle, or attempt to settle, or to procure or attempt to procure the dismissal of any indictment, information, or charge against any person in custody or held upon bond in the State of West Virginia, with any court, or with the prosecuting attorney, or with any police officer in any court in the State of West Virginia.

§51-10-5a. Premium and collateral security required by bondsmen.

    (a) The premium required by bail bondsmen shall be at least ten percent of the amount of the bond. Collateral security, including personal property, real property, indemnity agreement and guarantee, received by that licensee may not, in the aggregate, exceed the amount of the bond.

    (1) A three percent down payment is required prior to the issuance of bond.

    (2) If credit terms are given the remaining premium shall be paid over the next twelve months.

    (3) The aggregate sum for the total amount of bonds provided may not exceed two times the amount of collateral.

    (b) Whenever collateral is received by a bail bondsman a receipt shall be furnished to the defendant or indemnitors. Copies of all receipts issued shall be kept by the bail bondsman. All receipts issued shall:

    (1) Be prenumbered by the printer and used and filed in consecutive numerical order;

    (2) Show the name, address and phone number of the bail bondsman;

    (3) Show the amount and description of collateral and date received;

    (4) Show the name of the person accepting collateral; and,

    (5) Show the total amount of the bond for which the collateral is being accepted and the name of the defendant.

    (c) When the defendant fails to appear in court and the bond is for forfeited, the court shall notify the bail bondsman within seven days of failure to appear.

§51-10-6. Posting names of authorized bondsmen; list to be furnished prisoners; prisoner may communicate with bondsman; record to be kept by police.

    A typewritten or printed list alphabetically arranged (a) An alphabetical list of all persons engaged under the authority of any courts of record pursuant to section eight of this article, in the business of becoming surety on the bonds for compensation in the bail bonding business and licensed by the Insurance Commissioner of West Virginia shall be posted in a conspicuous place in each police precinct, jail, prisoner's dock, house of detention, municipal court, and justice of the peace court within the county, and one or more copies thereof kept on hand; and when magistrate court and copies shall be kept on hand.

    (b) When any person who is detained in custody in any such place of detention shall request any person in charge thereof to furnish him the name of a bondsman, or to put him in communication with a bondsman, said requests bail bondsmen information, the alphabetical list shall be furnished to the person. so requesting, and it shall be the duty of the The person in charge of said the place of detention shall within a reasonable time to put the person so detained in communication with the bondsman so selected by the person in detention, and the person in charge of said the place of detention shall contemporaneously with said transaction make in the blotter or book of record kept in any such place of detention, a record showing the name of the person requesting the bondsman, the offense with which the said that person is charged, the time at which the request was made, the bondsman requested, and the person by whom the said bondsman was called, and preserve the same as a permanent record in the book or blotter in which entered.

    (c) The person in charge or any other employee, contractor, agent, assign or staff member of the place of detention may not make any recommendation to the person in detention regarding a preference for a bondsman.

§51-10-7. Bondsman prohibited from entering place of detention unless requested by prisoner; record of visit to be kept.

    It shall be (a) It is unlawful for any bondsman, agent, clerk, or representative of any bondsman to enter a police precinct, jail, prisoner's dock, house of detention, justice of the peace magistrate court, or other place where persons in the custody of the law are detained: in the State of West Virginia, for

    (1) For the purpose of obtaining employment as a bondsman.

    without (2) Without having been previously called by a person so detained, or by some relative or other authorized person acting for or on behalf of the person so detained. and whenever

    (3) When any person engaged in the bonding business as principal, or as clerk, or representative of another, shall enter enters a police precinct, jail, prisoner's dock, house of detention, justice of the peace magistrate court, or other place where persons in the custody of the law are detained, in the State of West Virginia he or she shall forthwith give to the person in charge thereof his or her mission there purpose, the name of the person calling him or her, and requesting him that he or sheto come to such place, there and the same that person shall be recorded by the person in charge of the said place of detention and preserved as a public record. and the failure

    (b) Failure to give such to provide the information, or the failure of the person in charge of said the place of detention to make and preserve such a record, shall constitute is a violation of this article.

§51-10-8. Qualifications of bondsmen; rules to be prescribed by Supreme Court of Appeals the Commissioner of Insurance; lists of agents to be furnished; renewal of authority to act; false swearing.

    (a) The Supreme Court of Appeals Insurance Commissioner of West Virginia shall, under reasonable rules, specify the qualifications of persons and corporations applying for authority to engage in the bonding business in criminal cases in the State of West Virginia, and the terms and conditions upon which the business may be carried on. After September 1, 2004, no person or corporation may, either as principal, or as agent, clerk, or representative of another, engage in the bonding business in any court regularly exercising criminal jurisdiction until qualified pursuant to the rules. The Supreme Court of Appeals, in making the rules, and in granting authority to persons to engage in the bonding business, shall take into consideration both the financial responsibility and the moral qualities of the person so applying, and no person may be permitted to engage, either as principal or agent, in the business of becoming surety upon bonds for compensation in criminal cases, who has ever been convicted of any offense involving moral turpitude, or who is not known to be a person of good moral character. The court shall require every person qualifying to engage in the bonding business as principal to file with the court a list showing the name, age, and residence of each person employed by the bondsman as agent, clerk, or representative in the bonding business, and require an affidavit from each of the persons stating that the person will abide by the terms and provisions of this article. The court shall require the authority of each of the persons to be renewed from time to time at periods the court may by rule provide. Before the authority may be renewed the court shall require from each of the persons an affidavit that since his or her previous qualifications to engage in the bonding business he or she has abided by the provisions of this article, and any person swearing falsely in any of the affidavits is guilty of false swearing.

    (b) Persons authorized to engage in the bonding business in criminal cases in the State of West Virginia on the effective date of the amendments made to this section during the regular session of the Legislature in 2004 may continue to engage in the business until September 1, 2004.

    (b) The Insurance Commissioner shall issue a license to provide bail bonds for compensation to each individual who meets the following requirements:

    (1) Satisfactorily completes all necessary licensing requirements of a property and casualty insurance producers,

    (2) Provides a qualifying power of attorney from an insurer or delivers a mortgage or lien on real property or negotiable instruments, upon which he or she may provide bail bonds equivalent to two times the amount of the collateral.

    (c) Provides a criminal background check summary which displays the moral qualities of the person so applying, demonstrates that no person applying has been permitted to engage, either as principal or agent, in the business of becoming surety upon bonds for compensation in criminal cases, if he or she has ever been convicted of any offense involving moral turpitude, fraud, dishonesty or theft.

    (d) The Insurance Commissioner shall require every person duly qualified to engage in the bonding business as a principal to file with the courts where they intend to conduct business a list showing the name, age, and residence of each person employed by the bondsman as agent, clerk, or representative in the bonding business, and require an affidavit from each person stating that he or she will comply with this article.

§51-10-9. Penalties.

    Any person violating any provisions of this article other than in the commission of false swearing shall be punished by a fine of not more than $100, $2,000, or by imprisonment confinement not exceeding six months in the county jail, or both fined and confined, where no other penalty is provided by this article; and if the person so convicted be a police officer or other public official, he or she shall upon recommendation of the judge of the criminal court of record of the county to which this article is applicable also be forthwith removed from office; if a bondsman, or the agent, clerk, or representative of a bondsman, he or she shall be disqualified from thereafter engaging in any manner in the bonding business for such a period of time as the judge of the criminal court of record of the county to which this article is applicable shall order; and, if an attorney at law, shall be subject to suspension or disbarment as attorney at law.

§51-10-10. Enforcement of article.

    It shall be the duty of the judges of the criminal courts of record, the municipal courts, the justices of the peace magistrate courts of the county where a person authorized to engage in the bail bonding business conducts his or her business to which this article is applicable, to see that this article is enforced, and upon the impaneling of each grand jury in the State of West Virginia it shall be the duty of the judge impaneling said jury to give it in charge to the jury to investigate the manner in which this article is enforced and all violations thereof.

    NOTE: The purpose of this bill is to update generally bail bondsmen requirements in criminal cases. The bill defines terms. The bill grants the Insurance Commissioner of West Virginia licensing and regulatory authority. The bill sets forth additional qualifications. The bill sets forth licensing requirements. The bill sets forth bonding requirements. The bill requires notice be given. The bill prohibits certain persons from recommending specific bondsmen. The bill increases a monetary penalty. The bill makes stylistic changes.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

    §51-10-5a is new; therefore, it has been completely underscored.