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                                                                  S.B. No. 1336




AN ACT
relating to bail bond sureties, county bail bond boards, and liability on and forfeiture of personal bonds and bail bonds. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Article 22.13, Code of Criminal Procedure, is amended to read as follows: Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken: 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 from 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. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appearing. 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 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) in the case of a misdemeanor, at the time of or not later than the 180th day after the date of the principal's failure to appear in court; or (B) in the case of a felony, at the time of or not later than the 270th day after the date of the principal's failure to appear in court. (b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs of court, any reasonable and necessary costs incurred by a county to secure the return of the principal, and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal's incarceration. SECTION 2. Article 22.16, Code of Criminal Procedure, is amended to read as follows: Art. 22.16. REMITTITUR AFTER FORFEITURE. (a) After forfeiture of a bond and before entry of a final judgment [the expiration of the time limits set by Subsection (c) of this article], the court shall, on written motion, remit to the surety the amount of the bond, after deducting the costs of court and[,] any reasonable and necessary costs to the county for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (c) [(e) of this article] if[: [(1) the principal is incarcerated in the county in which the prosecution is pending; [(2) the principal is incarcerated in another jurisdiction and the incarceration is verified as provided by Subsection (b) of this article; [(3)] the principal is released on new bail in the case or[; [(4) the principal is deceased; or [(5)] the case for which bond was given is dismissed. (b) For other good cause shown [the purposes of Subsection (a)(2) of this article, a surety may request confirmation of the incarceration of his principal by written request to the law enforcement agency of the county where prosecution is pending. A law enforcement agency in this state that receives a request for verification shall notify the court in which prosecution is pending and the surety whether or not the principal is or has been incarcerated in another jurisdiction and the date of the incarceration. [(c) A final judgment may be entered against a bond not earlier than: [(1) nine months after the date the forfeiture was entered, if the offense for which the bond was given is a misdemeanor; or [(2) 18 months after the date the forfeiture was entered, if the offense for which the bond was given is a felony. [(d) After the expiration of the time limits set by Subsection (c) of this article] and before the entry of a final judgment against the bond, 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 and necessary costs to the county for the return of the principal, and the interest accrued on the bond amount as provided by Subsection (c) [(e) of this article]. (c) [(e)] For the purposes of this article, interest accrues on the bond amount from the date of forfeiture in the same manner and at the same rate as provided for the accrual of prejudgment interest in civil cases. SECTION 3. Subsection (a), Article 44.04, Code of Criminal Procedure, is amended to read as follows: (a) Pending the determination of any motion for new trial or the appeal from any misdemeanor conviction, the defendant is entitled to be released on reasonable bail[, and if a defendant charged with a misdemeanor is on bail, is convicted, and appeals that conviction, his bond is not discharged until his conviction is final or in the case of an appeal to a court where a trial de novo is held, he files an appeal bond as required by this code for appeal from the conviction]. SECTION 4. Subsections (b) through (e), Article 17.19, Code of Criminal Procedure, are amended to read as follows: (b) If the court or magistrate finds that there is cause for the surety to surrender his principal, the court shall issue a warrant of arrest or capias for the principal. It is an affirmative defense to any liability on the bond that: (1) the court or magistrate refused to issue a warrant of arrest or capias for the principal; and (2) after the refusal to issue the warrant or capias the principal failed to appear. (c) If the court or magistrate before whom the prosecution is pending is not available, the surety may deliver the affidavit to any other magistrate in the county and that magistrate, on a finding of cause for the surety to surrender his principal, shall issue a warrant of arrest or capias for the principal. (d) An arrest warrant or capias issued under this article shall be issued to the sheriff of the county in which the case is pending, and a copy of the warrant or capias shall be issued to the surety or his agent. (e) An arrest warrant or capias issued under this article may be executed by a peace officer, a security officer, or a private investigator licensed in this state. SECTION 5. Article 23.05, Code of Criminal Procedure, is amended to read as follows: Art. 23.05. CAPIAS AFTER SURRENDER OR FORFEITURE. (a) If [Where] a forfeiture of bail is declared or a surety surrenders a defendant under Article 17.19, a capias shall be immediately issued for the arrest of the defendant, and when arrested, in its discretion, the court may require the defendant, in order to be released from custody, to deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the new bond as set by the court, in lieu of a surety bond, unless a [the] forfeiture is taken and [has been] set aside under the third subdivision of Article 22.13 of this code, in which case the defendant and his sureties shall remain bound under the same bail. (b) A capias issued under this article may be executed by a peace officer or by a private investigator licensed under Chapter 1702, Occupations Code. (c) A capias under this article must be issued not later than the 10th business day after the date of the court's issuance of the order of forfeiture or order permitting surrender of the bond. (d) The sheriff of each county shall enter a capias issued under this article into a local warrant system not later than the 10th business day after the date of issuance of the capias by the clerk of court. SECTION 6. 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 7. 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; and (13) a criminal defense attorney practicing in the county and elected by other attorneys whose principal places of business are located in the county and who are not legally prohibited from representing criminal defendants or the designee of the criminal defense attorney. SECTION 8. 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 9. 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 10. 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 11. 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 12. 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 13. 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 14. Subsection (a), Section 1704.152, 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 15. Subsections (b) and (d), Section 1704.154, 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 16. 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 17. Subsection (a), Section 1704.159, 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 18. Subsections (b) and (c), Section 1704.160, 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 19. 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 20. Subsection (d), Section 1704.202, 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 21. Subsection (a), Section 1704.204, 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 22. Subsection (a), Section 1704.207, 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 23. 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 24. Subsection (a), Section 1704.254, 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 25. 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 26. 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 27. Subsection (b), Section 1704.303, 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 28. Subsection (c), Section 1704.202, Occupations Code, is repealed. SECTION 29. 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 30. (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 31. (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 32. The change in law made by this Act applies only to a bail bond executed on or after the effective date of this Act. A bail bond executed before the effective date of this Act is covered by the law in effect when the bail bond was executed, and the former law is continued in effect for that purpose. SECTION 33. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.
______________________________ ______________________________ President of the Senate Speaker of the House
I hereby certify that S.B. No. 1336 passed the Senate on May 1, 2003, by the following vote: Yeas 31, Nays 0; and that the Senate concurred in House amendments on May 31, 2003, by the following vote: Yeas 30, Nays 0. ______________________________ Secretary of the Senate I hereby certify that S.B. No. 1336 passed the House, with amendments, on May 28, 2003, by the following vote: Yeas 139, Nays 0, two present not voting. ______________________________ Chief Clerk of the House Approved: ______________________________ Date ______________________________ Governor