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By: Talton H.B. No. 2729
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of bail bond sureties; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1704.001, Occupations Code, is amended
by amending Subdivision (4) and adding Subdivision (4-a) to read as
follows:
(4) "Bonding business" means the solicitation,
negotiation, or execution of a bail bond by a bail bond surety.
(4-a) "Final judgment" means a judgment that disposes
of all issues and parties in a case.
SECTION 2. Section 1704.053, Occupations Code, is amended
to read as follows:
Sec. 1704.053. BOARD COMPOSITION. A board consists of:
(1) the sheriff or a designee from the sheriff's office
who must be the sheriff's administrator or a deputy sheriff of the
rank of at least sergeant;
(2) a district judge of the county having jurisdiction
over criminal matters and designated by the presiding judge of the
administrative judicial district;
(3) the county judge, a member of the commissioners
court designated by the county judge, or a designee approved by the
commissioners court;
(4) a judge of a county court or county court at law in
the county having jurisdiction over criminal matters and designated
by the commissioners court;
(5) the district attorney or an assistant district
attorney designated by the district attorney;
(6) a licensed bail bond surety or agent for a
corporate surety in the county elected under Section 1704.0535, or
a bail bond surety or agent for a corporate surety licensed in the
county who is designated by the elected surety or agent [by other
licensed bail bond sureties in the county];
(7) a justice of the peace;
(8) the district clerk or the clerk's designee;
(9) the county clerk or the clerk's designee, if the
county clerk has responsibility over criminal matters;
(10) if appointed by the board, a presiding judge of a
municipal court in the county;
(11) if the county's principal municipality designates
a presiding judge in the municipal court system, the presiding
judge or a municipal judge from the system designated by the
presiding judge; and
(12) the county treasurer or the treasurer's designee
or, if appointed by the commissioners court in a county that does
not have a county treasurer, the person designated by the county
commissioners court to perform the duties of the county treasurer.
SECTION 3. Subchapter B, Chapter 1704, Occupations Code, is
amended by adding Section 1704.0535 to read as follows:
Sec. 1704.0535. ELECTION OF BAIL BOND SURETY BOARD MEMBER.
(a) The board shall annually conduct a secret ballot election to
elect the member of the board who serves as the representative of
licensed bail bond sureties by electing a licensed bail bond surety
or agent for a corporate surety board member.
(b) Each individual licensed in the county as a bail bond
surety or agent for a corporate surety is entitled to cast one vote
for each license held.
SECTION 4. Section 1704.054, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The presiding officer may vote on any board matter.
SECTION 5. Section 1704.105, Occupations Code, is amended
to read as follows:
Sec. 1704.105. LICENSED BAIL BOND SURETY LIST. (a) A board
shall post in each court having criminal jurisdiction in the
county, and shall provide to each local official responsible for
the detention of prisoners in the county, a current list of each
licensed bail bond surety and each licensed agent of a corporate
[the bail bond] surety in the county.
(b) A list of each licensed bail bond surety and each
licensed agent of a corporate surety in a county must [may] be
displayed at each location where prisoners are examined, processed,
or confined.
SECTION 6. Section 1704.108, Occupations Code, is amended
to read as follows:
Sec. 1704.108. NOTIFICATION OF DEFAULT BY CORPORATION. A
board shall promptly notify the Texas Department of Insurance if
[of a default by] a corporation fails to pay a judgment of
forfeiture as provided by Section 1704.204(a) [on a financial
obligation undertaken by the corporation in the county].
SECTION 7. Section 1704.109, Occupations Code, is amended
to read as follows:
Sec. 1704.109. SOLICITATION AND ADVERTISEMENT. (a) A
board by rule may regulate solicitations or advertisements by or on
behalf of bail bond sureties [license holders] to protect:
(1) the public from:
(A) harassment;
(B) [,] fraud;
(C) [, or] misrepresentation; or
(D) threats to public safety; or
(2) the safety of law enforcement officers.
(b) A bail bond surety, an agent of a corporate surety, or an
employee of the surety or agent may not make, cause to be made, or
benefit from unsolicited contact:
(1) through any means, including in person, by
telephone, by electronic methods, or in writing, to solicit bonding
business related to an individual with an outstanding arrest
warrant that has not been executed, unless the bail bond surety or
agent for a corporate surety has an existing bail bond on the
individual; or
(2) in person or by telephone to solicit bonding
business:
(A) that occurs between the hours of 9 p.m. and 9
a.m.; or
(B) within 24 hours after:
(i) the execution of an arrest warrant on
the individual; or
(ii) an arrest without a warrant on the
individual.
(c) This section does not apply to a solicitation or
unsolicited contact related to a Class C misdemeanor.
SECTION 8. Section 1704.151, Occupations Code, is amended
to read as follows:
Sec. 1704.151. LICENSE REQUIRED. Except as provided by
Section 1704.163, a person may not act as a bail bond surety or as an
agent for a corporate surety in the county unless the person holds a
license issued under this chapter.
SECTION 9. Section 1704.152(a), Occupations Code, is
amended to read as follows:
(a) To be eligible for a license under this chapter, an
individual, including an agent designated by a corporation in an
application, must:
(1) be a resident of this state and a citizen of the
United States;
(2) be at least 18 years of age;
(3) possess the financial resources required to comply
with Section 1704.160, unless the individual is acting only as
agent for a corporation holding a license under this chapter; and
(4) have, in the two years preceding the date a license
application is filed:
(A) at least one year of continuous work
experience in the bail bond business; and
(B) completed in person at least eight hours of
continuing legal education in criminal law courses or bail bond law
courses that are approved by the State Bar of Texas and that are
offered by an accredited institution of higher education in
[accredited by] the state.
SECTION 10. Sections 1704.154(b) and (d), Occupations Code,
are amended to read as follows:
(b) The application must:
(1) be in a form and contain the information
prescribed by the board;
(2) state:
(A) the applicant's name, age, and address;
(B) if the applicant is a corporation, whether
the applicant is:
(i) chartered or admitted to do business in
this state; and
(ii) qualified to write fidelity, guaranty,
and surety bonds under the Insurance Code;
(C) the name under which the bail bond business
will be conducted, including a bail bond business that is conducted
by an agent of a corporation;
(D) each place, including the street address and
municipality, at which the business will be conducted; and
(E) the amount of cash or the cash value of a
certificate of deposit or cashier's check that the applicant
intends to deposit with the county treasurer if the applicant's
application is approved or, if the applicant is an individual
intending to execute nonexempt real property in trust to the board,
the value of the real property;
(3) if the applicant is an individual, be accompanied
by a list, as required by Section 1704.155, of nonexempt real
property owned by the applicant that the applicant intends to
execute in trust to the board if the applicant's application is
approved; and
(4) be accompanied by:
(A) the applicant's complete, sworn financial
statement;
(B) the applicant's declaration that the
applicant will comply with this chapter and the rules adopted by the
board;
(C) three letters of recommendation, each from a
person who:
(i) is reputable; and
(ii) has known the applicant or, if the
applicant is a corporation, the agent designated by the corporation
in the application for at least three years;
(D) a $500 filing fee;
(E) a photograph of the applicant or, if the
applicant is a corporation, of the agent designated by the
corporation in the application;
(F) a set of fingerprints of the applicant or, if
the applicant is a corporation, of the agent designated by the
corporation in the application taken by a law enforcement officer
designated by the board;
(G) if the applicant is or has been licensed
under this chapter in another county:
(i) a list of each county in which the
applicant holds a license; and
(ii) a statement by the applicant [that],
as of the date of the application, of any [the applicant has no
unpaid] final judgments that have been unpaid for more than 30 days
and that arose directly or indirectly from a bail bond executed by
the applicant as a surety or as an agent for a surety [of forfeiture
against the applicant in any county in which the applicant holds or
has held a license]; and
(H) if the applicant is a corporation, a
statement by the designated agent, as of the date of the
application, of any [unpaid] final judgments that have been unpaid
for more than 30 days and that arose directly or indirectly from [of
forfeiture on] any bond executed by the agent as a surety or as an
agent for a surety.
(d) Until payment of the final judgment, [The existence of]
an unpaid final judgment disclosed under Subsection (b)(4)(G)(ii)
or (b)(4)(H) bars [may not bar] licensure for the applicant unless
the applicant has deposited with the court cash or a supersedeas
bond in the amount of the final judgment pending:
(1) a ruling on a timely filed motion for a new trial;
or
(2) an appeal [but may be considered by the board in
determining whether to grant a license to the corporation with that
agent].
SECTION 11. Section 1704.155, Occupations Code, is amended
to read as follows:
Sec. 1704.155. REAL PROPERTY LIST. A list of nonexempt real
property required under Section 1704.154(b)(3) must, for each
parcel listed, include:
(1) a legal description of the property that would be
sufficient to convey the property by general warranty deed;
(2) a current statement from each taxing unit
authorized to impose taxes on the property showing[:
[(A)] that there is no outstanding tax lien
against the property; [and]
(3) at the option of the applicant, either [(B)] the
property's:
(A) net value [of the property] according to a
current appraisal made by a real estate appraiser who is a member in
good standing of a nationally recognized professional appraiser
society or trade organization that has an established code of
ethics, educational program, and professional certification
program; or
(B) value according to a statement from the
county from the county's most recent certified tax appraisal roll;
(4) [(3)] a statement by the applicant that, while the
property remains in trust, the applicant:
(A) agrees to pay the taxes on the property;
(B) will not further encumber the property unless
the applicant notifies the board of the applicant's intent to
encumber the property and the board permits the encumbrance; and
(C) agrees to maintain insurance on any
improvements on the property against damage or destruction in the
full amount of the value claimed for the improvements;
(5) [(4)] a statement of whether the applicant is
married; and
(6) [(5)] if the applicant is married, a sworn
statement from the applicant's spouse agreeing to transfer to the
board, as a part of the trust, any right, title, or interest that
the spouse may have in the property.
SECTION 12. Section 1704.159(a), Occupations Code, is
amended to read as follows:
(a) After the hearing under Section 1704.158, the board
shall enter an order conditionally approving the application unless
[if] the board determines that a ground exists [does not exist] to
deny the application. If the board determines that a ground exists
to deny the application, the board shall enter an order denying the
application.
SECTION 13. Sections 1704.160(b) and (c), Occupations Code,
are amended to read as follows:
(b) A deposit made under Subsection (a)(1)(A) or (a)(2) may
not be less than $50,000. A corporation must make a separate
deposit for each license granted to it in a county. A deposit made
to a county with a population of less than 250,000 shall be placed
in a fund known as a bail security fund.
(c) At the option of the applicant, the [The] property
executed in trust under Subsection (a)(1)(B) must be valued in the
amount indicated by:
(1) [on] an appraisal by a real estate appraiser who is
a member in good standing of a nationally recognized professional
appraiser society or trade organization that has an established
code of ethics, educational program, and professional
certification program; or
(2) the county's most recent certified tax appraisal
roll.
SECTION 14. Section 1704.162, Occupations Code, is amended
by amending Subsection (d) and adding Subsection (g) to read as
follows:
(d) A board shall [may] approve an application for renewal
if:
(1) the applicant's current license is not suspended
or revoked;
(2) the application complies with the requirements of
this chapter; and
(3) the board does not determine that a ground exists
to deny the application.
(g) The board may disapprove an application only by entering
an order.
SECTION 15. Section 1704.202(d), Occupations Code, is
amended to read as follows:
(d) The records required under this section shall be:
(1) made available for inspection and copying at the
board's expense on demand by the board or an authorized
representative of the board;
(2) maintained at the license holder's office location
in the county; and
(3) maintained for not less than four years after the
conclusion of the case for which the bond was given.
SECTION 16. Section 1704.204(a), Occupations Code, is
amended to read as follows:
(a) A person [license holder] shall pay a final judgment on
a forfeiture of a bail bond executed by the person [license holder]
not later than the 31st [30th] day after the date of the final
judgment unless a timely motion for a new trial has been filed. If a
timely motion for a new trial or a notice of appeal has been filed,
the person shall:
(1) pay the judgment not later than the 31st day after
the date the motion is overruled, if the motion is overruled; or
(2) deposit with the court cash or a supersedeas bond
in the amount of the final judgment, if an appeal is filed.
SECTION 17. Section 1704.207(a), Occupations Code, is
amended to read as follows:
(a) A person executing a bail bond may [not] surrender the
principal for whom the bond is executed by [unless]:
(1) if the principal is represented by an attorney,
notifying the principal's attorney of the person's intention to
surrender the principal in a manner provided by Rule 21a, Texas
Rules of Civil Procedure; and
(2) filing an affidavit with the court or magistrate
before which the prosecution is pending that states:
(A) the person's intention to surrender the
principal;
(B) the court and cause number of the case;
(C) the name of the defendant;
(D) the offense with which the defendant is
charged;
(E) the date of the bond;
(F) the reason for the intended surrender; and
(G) that notice of the person's intention to
surrender the principal has been provided as required by this
subsection [the person executes and files with the court having
jurisdiction over the case an affidavit stating:
[(A) the date the bond was executed;
[(B) the fee paid for the bond; and
[(C) the reason for the surrender; and
[(2) the court authorizes the surrender in writing].
SECTION 18. Subchapter F, Chapter 1704, Occupations Code,
is amended by adding Section 1704.2535 to read as follows:
Sec. 1704.2535. FAILURE TO PAY FINAL JUDGMENT BY BAIL BOND
SURETY. (a) The board or its authorized representative shall
immediately notify the sheriff if a bail bond surety fails to pay a
final judgment of forfeiture as provided by Section 1704.204(a).
(b) After receiving notification, the sheriff may not
accept any bonds from the bail bond surety until the surety pays the
judgment.
(c) The bail bond surety's privilege to post bonds is
reinstated when the bail bond surety pays the judgment.
(d) A board is not required to provide notice or a hearing
before making the notification required by this section.
SECTION 19. Section 1704.254(a), Occupations Code, is
amended to read as follows:
(a) Notice of a hearing to suspend or revoke a license under
this chapter must:
(1) be sent by certified mail to the last known address
of the license holder not later than the 11th day before the date of
the hearing; [and]
(2) state each alleged violation of this chapter; and
(3) include a copy of any written complaint on which
the hearing will be based.
SECTION 20. Section 1704.255, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The board may not assert a reason on appeal for an action
by the board that differs from the reasons specified in the board's
notice of hearing under Section 1704.254.
SECTION 21. Section 1704.301, Occupations Code, is amended
to read as follows:
Sec. 1704.301. RETURN OF SECURITY [IN EXCESS OF RISK
PROHIBITED]. A bail bond surety [license holder] may not hold
security for the payment of a bail bond fee or [and] to assure the
principal's appearance in court for more than 30 days after the date
on which the owner of the security:
(1) requests return of the security in writing; and
(2) submits to the bail bond surety written evidence
of the conclusion of:
(A) the payment agreement; or
(B) all of the criminal cases for which the
security was given [if the amount of the security held exceeds the
particular risk involved in the case].
SECTION 22. Section 1704.303(b), Occupations Code, as
amended by Chapters 1262 and 1461, 77th Legislature, Regular
Session, 2001, is reenacted to read as follows:
(b) A person may not advertise as a bail bond surety in a
county unless the person holds a license issued under this chapter
by a bail bond board in that county. A person does not violate this
subsection if the person places an advertisement that appears in
more than one county and:
(1) the advertisement clearly indicates the county or
counties in which the person holds a license issued under this
chapter; and
(2) any local telephone number in the advertisement is
a local number only for a county in which the person holds a license
issued under this chapter.
SECTION 23. Section 1704.202(c), Occupations Code, is
repealed.
SECTION 24. The changes in law made by this Act regarding
the composition or election of a county bail bond board do not
affect the entitlement of a member serving on a board immediately
before September 1, 2003, to continue to serve and function as a
member of the board for the remainder of the member's term. Those
changes in law apply only to a member appointed or elected on or
after September 1, 2003.
SECTION 25. (a) Sections 1704.159, 1704.160, and 1704.162,
Occupations Code, as amended by this Act, apply only to an
application filed on or after the effective date of this Act. An
application filed before the effective date of this Act is governed
by the law in effect on the day the application was filed, and the
former law is continued in effect for that purpose.
(b) Section 1704.254, Occupations Code, as amended by this
Act, applies only to a notice that occurs on or after the effective
date of this Act. A notice that occurs before the effective date of
this Act is governed by the law in effect on the day the notice
occurs, and the former law is continued in effect for that purpose.
(c) Section 1704.255, Occupations Code, as amended by this
Act, applies only to an appeal filed on or after the effective date
of this Act. An appeal filed before the effective date of this Act
is governed by the law in effect on the day the appeal was filed, and
the former law is continued in effect for that purpose.
SECTION 26. (a) Section 1704.303, Occupations Code, as
amended by this Act, applies only to an offense committed on or
after the effective date of this Act.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
(c) For purposes of this section, an offense is committed
before the effective date of this Act if any element of the offense
occurs before that date.
SECTION 27. This Act takes effect September 1, 2003.