SB307 HFA Barrett 3-5
Delegate Barrett moves to amend the amendment in section 1 of article 11F after the word “adjudication” by inserting “due to his or her inability to post bond”
Following article llF by inserting a new article to read as follows:
“ARTICLE 11G. BAIL BONDSMEN IN CRIMINAL CASES.
(a) When used in this article, words, terms and phrases
defined in this subsection of this section, and any variations thereof required by the context, have the meaning ascribed to them in this section, except where the context indicates a different meaning is intended.
(1) "Bonding business" means the business of becoming surety for compensation upon bonds in criminal cases.
(2) "Bail bondsman" means any person engaged in the bonding business that has satisfied the requirements for being a property and casualty insurance producer as set forth by the Insurance Commission.
(3) “Insurer” means any domestic, foreign or alien surety company which has been qualified generally to transact surety business.
(4) “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.
§62-11G-2. Business impressed with public interest.
The business of becoming surety for compensation upon bonds in criminal cases is a public interest.
§62-11G-3. Procuring business through official or attorney for consideration prohibited.
(a) It is unlawful for any person engaged, either as principal or as the clerk, agent, or representative of a corporation, or another person in the bonding business 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 to any attorney at law, police officer, sheriff, deputy sheriff, constable, jailer, probation officer, clerk, or other attaché of a criminal court, or public official for procuring or assisting in procuring any person to employ the bondsman to execute as surety any bond for compensation in any criminal case.
(b) It is unlawful for any attorney at law, police officer, sheriff, deputy sheriff, constable, jailer, probation officer, clerk, bailiff, or other attaché of a criminal court, or public official, to accept or receive from any 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.
§62-11G-4. Attorneys procuring employment through official or bondsman for consideration prohibited.
It 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 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 attaché of any criminal court for causing or procuring or assisting in causing or procuring any person to employ the attorney to represent him or her in any criminal case.
§62-11G-5. Receiving other than regular fee for bonding prohibited; bondsman prohibited from endeavoring to secure dismissal or settlement.
(a) It is lawful to charge for executing any bond in a criminal case.
(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 has executed bond, for any other service whatever performed in connection with any indictment or charge, upon which the person is bailed or held, or in any counties where the court has regulated bonding fees pursuant to section nine of this article.
(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 has executed bond, for any other service whatever performed in connection with any indictment or charge upon which the person is bailed or held in West Virginia.
(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 West Virginia, with any court, or with the prosecuting attorney, or with any police officer in any court.
§62-11G-6. Fees and collateral security required by bondsmen.
(a) The fee required by bail bondsmen shall be at least ten percent of the amount of the bond. Fees (including personal property, real property, indemnity agreement and guarantee) received by such licensee shall not, in the aggregate, exceed the amount of the bond.
At the discretion of the bail bondsman, the fee may be paid as follows:
(1) A minimum of a three percent down payment shall be required at the issuance of bond;
(2) The remaining percentage shall be paid over a period not to exceed twelve months;
(b) When collateral or security is received by a bail bondsman a receipt shall be furnished to the defendant. 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 and address of the bail bondsman;
(3) Show the amount 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 a bail bond is to be forfeited, the court is to give notification to the bail bondsman within 24 hours of failure to appear.
§62-11G-7. Posting names of authorized bondsmen; list to be furnished prisoners; prisoner may communicate with bondsman; record to be kept by police.
(a) An alphabetical list of all persons engaged in the bail bonding business and licensed by the Insurance Commission, shall be posted in a conspicuous place in each police precinct, jail, prisoner's dock, house of detention, municipal court, and magistrate court. Copies of such list shall be kept on hand by the person in charge of the office.
(b) When any person is detained in custody in any place of detention requests bail bondsman information, the alphabetical list shall be furnished to the person. The person in charge of 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.
(c) The person in charge of the place of detention shall contemporaneously, with the transaction, make in the blotter or book of record kept in the place of detention, a record showing the name of the person requesting the bondsman, the offense with which the person is charged, the time at which the request was made, the bondsman requested, and the person by whom the bondsman was called, and preserve the same as a permanent record in the book or blotter in which entered.
(d) The person in charge or any other employee, contractor, agent, assign or staff member of the place of detention shall not make any recommendation, direct or indirect, to the person in detention regarding a preference for a bondsman.
§62-11G-8. Bondsman prohibited from entering place of detention unless requested by prisoner; record of visit to be kept.
(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, magistrate court, or other place where persons in the custody of the law are detained:
(1) For the purpose of obtaining employment as a bondsman;
(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.
(b) When any person engaged in the bonding business as principal, or as clerk, or representative of another, enters a police precinct, jail, prisoner's dock, house of detention, magistrate court, or other place where persons in the custody of the law are detained, he or she shall immediately give to the person in charge his or her purpose, the name of the person calling him or her, and requesting him or her to come, and the same shall be recorded by the person in charge of the place of detention and preserved as a public record.
(c) Failure to provide the information, or the failure of the person in charge of the place of detention to make and preserve a record, constitutes a violation of this article.
§62-11G-9. Qualifications of bondsmen; lists of agents to be furnished; renewal of authority to act; false swearing.
(a)The commissioner shall promulgate such reasonable rules and regulations as he or she considers necessary to carry out the intent, the administration and enforcement of this article, which said rules and regulations shall be promulgated in accordance with the application provisions of chapter twenty-nine-a [§§2-A-1-1 et seq.] of this code.
(b) The rules shall provide for qualifications of person applying for authority to engage in the bonding business in criminal cases and the terms and conditions upon which the business may be carried on.
(c) The commissioner, in making the rules, and in granting authority to persons engaged 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 more turpitude, or who is not known to be a person of good moral character.
(d) That the applicant shall provide 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 such collateral. Such limitations shall not apply where a qualified power of attorney is provided by a regulated insurer or surety company.
(e) That the applicant shall provide a criminal background check summary which displays the moral qualities of the person so applying.
(f) The commission shall require every person qualified to engage in the bonding business as principal:
(1) 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
(2) Require an affidavit from each of the persons stating that the person will abide by the terms and provisions of this article.
(g) The commission shall require each person authorized as a bail bondsman to renew every three years and file:
(1)An affidavit stating 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; and (2) No person seeking to renew his or her qualifications shall be required to submit to the property and casualty licensing procedures for a second time, unless he or she has voluntarily terminated his or her qualifications.
(h) A person operating as a self insured producer shall provide a monthly report indicating:
(1) The total number of bail bonds provided in the preceding month; and
(2) The value of those bonds and the total amount of outstanding collateral remaining upon which bonds may be secured. If the total value of bonds exceeds two times the value of the collateral, the bondsman shall cease operating until the following quarter when he or she provides a report to the commission indicating unencumbered collateral exists to secure the bonds provided by him or her.
(i) The commission shall furnish an alphabetical list of all approved bail bondsmen to the each place of detention.
(j)After September 1, 2014, no persons 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.
Any person violating any provisions of this article other than the commission of false swearing shall be punished by a fine of not more than $2,000, or by imprisonment not exceeding six months in the county jail, or both, where no other penalty is provided by this article; and if the person convicted is a police officer or other public official, he or she shall upon recommendation of the judge be removed from office; if a bondsman, or the agent, clerk, or representative of a bondsman, he shall be disqualified from thereafter engaging in any manner in the bonding business; and, if an attorney at law, shall be subject to suspension or disbarment.
§62-11G-11. Enforcement of article.
It shall be the duty of the judges of the criminal courts of record, the municipal courts, and magistrates where a person authorized to engage in the bail bonding business conducts his or her business, to see that this article is enforced, and upon the impaneling of each grand jury, 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. If an individual is found in violation of the terms of this article and sentenced pursuant to section ten, then the clerk of the court shall send a copy of the order of conviction to the commission which shall terminate the license of the sentenced individual.”