2004
Legislative Agenda
Legend:
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PO Box 1894 - Lexington, SC 29071 803-957-7577
~ Draft ~ (Page 1 of 3)
Sections 38-53-10 to 38-53-70
SECTION 38‑53‑10. Definitions.
(1)“Accommodation bondsman” means a person who has reached the age of eighteen years, is a resident of this State, who, aside from love and affection and release of the person concerned, receives no consideration for action as surety, and who endorses the bail bond after providing satisfactory evidence of ownership, value, and marketability of real property to the extent necessary to reasonably satisfy the official taking bond that the real or personal property will in all respects be sufficient to assure that the full principal sum of the bond will be realized in the event of breach of the conditions of the bond. The real estate shall be free and clear of any encumbrances. “Consideration” as used in this item does not include the legal rights of a surety against a defendant by reason of breach of the conditions of a bail bond nor does it include collateral furnished to and securing the surety so long as the value of the surety’s rights in the collateral does not exceed the defendant’s liability to the surety by reason of a breach in the conditions of the bail bond. An accommodation bondsman is limited to executing (4) bonds a year but cannot be liable for more than two (2) bonds at one time. The bondsman must obtain sufficient documentation or real property ownership and a copy must be attached to the bond form before a defendant is released.
(1) "Accommodation bondsman" means a person who has reached the age of eighteen years, is a resident of this State, who, aside from love and affection and release of the person concerned, receives no consideration for action as surety, and who endorses the bail bond after providing satisfactory evidence of ownership, value, and marketability of real property to the extent necessary to reasonably satisfy the official taking bond that the real or personal property will in all respects be sufficient to assure that the full principal sum of the bond will be realized in the event of breach of the conditions of the bond. "Consideration" as used in this item does not include the legal rights of a surety against a defendant by reason of breach of the conditions of a bail bond nor does it include collateral furnished to and securing the surety so long as the value of the surety's rights in the collateral does not exceed the defendant's liability to the surety by reason of a breach in the conditions of the bail bond.
(2) "Bail bond" means an undertaking by the defendant to appear in court as required upon penalty of forfeiting bail to the State in a stated amount and may include an unsecured appearance bond, a premium-secured appearance bond, an appearance bond secured by a cash deposit of the full amount of the bond, an appearance bond secured by a mortgage, and an appearance bond secured by at least one surety.
(3) "Bail bondsman" means a surety bondsman, professional bondsman, or an accommodation bondsman as defined in this chapter.
(4) "Clerk of court", unless otherwise specified, means the clerk of the circuit court of the county in the state where the bondsman is currently writing or obligated on the majority of those bail bonds which he has written or on which he is obligated.
(5) "Court", unless otherwise specified, means circuit, magistrate's, or municipal court.
(6) "Insurer" means any domestic, foreign, or alien surety company which has qualified generally to transact surety business and specifically to transact bail bond business in this State.
(7) "Obligor" means a principal or a surety on a bail bond.
(8) "Principal" means a defendant or witness obligated to appear in court as required upon penalty of forfeiting bail under a bail bond.
(9) “Professional bondsman” means any person who is approved and licensed under the provisions of this chapter and who pledges cash or approved securities with the clerk of court as security for bail bonds written in connection with a judicial proceeding and receives or is promised money or other things of value for the pledge. In addition, the bondsman can present the defendant in court when required, apprehend and surrender the defendant to the court, and keep the defendant under necessary surveillance.
(10) "Runner" means a person employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, assisting in the apprehension and surrender of the defendant to the court, keeping the defendant under necessary surveillance, and executing bonds on behalf of the licensed bondsman when the power of attorney has been recorded. "Runner" does not include an attorney or a law enforcement officer assisting a bondsman.
(11) "Surety" means one who, with the defendant, is liable for the amount of the bail bond upon forfeiture of bail.
(12) “Surety bondsman” means any person who is approved by and licensed by the director or his designee as an insurance agent, appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings, and receives or is promised money or other things of value for the execution or countersignature. In addition, surety bondsman can present the defendant in court when required, apprehension and surrender the defendant to the court, keeping the defendant under necessary surveillance.
(13) "Appropriate judge" means a magistrate, municipal, or circuit court judge who has jurisdiction over the defendant.
(14) "Good cause" means the violation of a specific term of the bail bond not to include the nonpayment of fees.
(15) Build up Fund (BUF) means an account establish and held by an insurer in a trust account for the bail bondsman in a bank or saving and loan association in this state jointly in the name of the bail bond agent. The account is only used to pay forfeitures brought against the bondsman and insurer.
SECTION 38-53-20. Enforcement of chapter
The director or his designee, clerks of court, and the State Law Enforcement Division have full power and authority to administer the provisions of this chapter for which they are charged with implementing. The director shall promulgate regulations to enforce the purposes and provisions of this chapter. The director may hire employees, examiners, investigators, and other assistants as he considers necessary and shall prescribe their duties.
SECTION 38-53-25 Bond agency, ownership requirements
a person may not own, control or otherwise have a pecuniary interest in a bail bond company unless such individual is a licensed professional bondsman or surety bondsman.
SECTION 38-53-30. Validity of undertakings.
No undertaking is invalid, nor may any person be discharged from his undertaking, a forfeiture be stayed, the judgment on the undertaking be stayed, set aside, or reversed, nor the collection of the judgment be barred or defeated by reason of any defect, omission, or failure to note or record the default of any defendant or surety, because the undertaking was entered into on a Sunday or other holiday or because of any other irregularity, if it appears from the tenor of the undertaking that the official before whom it was entered into was legally authorized to take it and if the amount of bail was stated.
The liability of a person on an undertaking is not affected by reason of the lack of any qualifications, sufficiency, or competency provided in any other law in this State, by reason of any other agreement whether or not the agreement is expressed in the undertaking, or because the defendant has not joined in the undertaking.
Each surety for the release of a person on bail must be qualified as:
(a) an insurer and represented by a surety bondsman;
(b) a professional bondsman; or
(c) an accommodation bondsman.
(A) A surety desiring to be relieved on a bond for "good cause" or the nonpayment of fees shall file with the court a motion to be relieved on the bond. A copy of the motion must be served upon the defendant, his attorney, and the solicitor's office. The court shall then schedule a hearing to determine if the surety should be relieved on the bond and advise all parties of the hearing date.
(B) If the circumstances warrant immediate incarceration of the defendant to prevent imminent violation of any one of the specific terms of the bail bond, or if the defendant has violated any one of the specific terms of the bond, the surety may take the defendant to the appropriate detention facility for holding until the court orders that the surety be relieved. The surety must immediately file with the detention facility and the court an affidavit stating the facts to support the surrender of the defendant for good cause or the nonpayment of fees. When the affidavit is filed with the court, the surety must also file a motion to be relieved on the bond pursuant to subsection (A). A surety who surrenders a defendant and files an affidavit which does not show good cause or the nonpayment of fees is subject to penalties imposed for perjury as provided for in Article 1, Chapter 9 of Title 16.
(C) After the surety has been relieved by order of the court, a new undertaking must be filed with the appropriate court in order to secure the re-release of the defendant. The undertaking must contain the same conditions included in the original bond unless the conditions have been changed by the court.
For the purpose of surrendering the defendant, the surety may arrest him before the forfeiture of the undertaking or, by his written authority endorsed on a certified copy of the undertaking, may request any judicial officer to order the arrest of the defendant by the surety.
SECTION 38‑53‑70. Issuance of bench warrant; remission of judgment.
(a) If a defendant fails to appear at a court
proceeding to which he has been summoned, the court must issue a bench warrant
for the defendant. If the surety fails to surrender the defendant or place a
hold on the defendant’s release from incarceration, commitment, or
institutionalization within thirty sixty days after notification to
the surety by certified mail from the court of the issuance of the bench
warrant, the bond shall be forfeited. Notice of the rule to show cause
hearing may not be served before the expiration of the bench warrant.
The
court shall issue a notice to summon every party bound in the forfeited to
comply with Section 17-15-170
At any
time before execution is issued on a judgment of forfeiture against a defendant
or his surety, the court may direct that the judgment be remitted in whole. or in part, upon conditions as the court
may impose, if it appears that justice requires the remission of part or
all of the judgment. In making a determination as to remission of the
judgment, the court shall consider the costs to the State or any county or
municipality resulting from the necessity to continue or terminate the
defendant’s trial and the efforts of law enforcement officers or agencies to
locate the defendant. The court in its discretion may permit the surety to pay
the estreatment in installments for a period of up to six months; however, the surety
must pay a handling fee to the court in an amount equal to four percent of the
value of the bond.
If the judgment is not paid within 10 days by the
insurer or bondsman
the clerk of court must suspend the bail bondsman’s bonding privileges. The
clerk of court should furnish the department with a certified copy of the
judgment docket and a certificate stating that the judgment remains
unsatisfied.
(b) In making a determination as to remission of the judgment, the court shall consider the costs to the State or any county or municipality resulting from the necessity to continue or terminate the defendant's trial and the efforts of law enforcement officers or agencies to locate the defendant. The forfeiture will be collected and maintained in an escrow account by the clerk of court on behalf of the surety.
If the defendant is surrendered within 90 days after forfeiture, the court, at a hearing upon motion served upon the defendant, his attorney, and the solicitor's office as required in Section 38-53-50(a), shall direct remission of up to, but not more than, 75 percent of the forfeiture shall be returned to the surety less court cost, if the surety surrendered the defendant.
If the defendant is surrendered within 180 days after forfeiture, the court, at a hearing upon motion served upon the defendant, his attorney, and the solicitor's office as required in Section 38-53-50(a), shall direct remission of up to, but not more than, 50 percent of the forfeiture shall be returned to the surety less court cost, if the surety surrendered the defendant.
If the defendant is surrendered within 270 days after forfeiture, the court, at a hearing upon motion served upon the defendant, his attorney, and the solicitor's office as required in Section 38-53-50(a), shall direct remission of up to, but not more than, 25 percent of the forfeiture shall be returned to the surety less court cost, if the surety surrendered the defendant.
If the defendant is surrendered one year after forfeiture, the court, at a hearing upon motion served upon the defendant, his attorney, and the solicitor's office as required in Section 38-53-50(a), shall direct remission of up to, but not more than, 10 percent of the forfeiture shall be returned to the surety less court cost, if the surety surrendered the defendant.
(c) The clerk
of court will retain four percent of the forfeiture bond amount and may
later retain any interest earned on the forfeiture bond. surety
must pay a four percent handling fee. in an amount
equal to four percent of the value of the bond which shall be retained by the
clerk of court. Any time during
the period in which installments are to be paid the defendant is surrendered to
the appropriate detention facility and the surety complies with the
recommitment procedures, the surety is relieved of any further liability.
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South Carolina
Dept of Insurance
