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H.B. 336

1    

BAIL REFORM

2    
1997 GENERAL SESSION

3    
STATE OF UTAH

4    
Sponsor: Greg J. Curtis

5    AN ACT RELATING TO CRIMINAL PROCEDURE; REQUIRING BAIL BOND SURETIES
6    TO BE LICENSED BY THE DEPARTMENT OF INSURANCE INSTEAD OF THE
7    JUDICIAL COUNCIL; IDENTIFYING CONDITIONS FOR PRETRIAL RELEASE;
8    REVISING BAIL FORFEITURE PROCEDURES; DEFINING TERMS; PROVIDING A
9    COORDINATION CLAUSE; MAKING TECHNICAL AMENDMENTS; AND REPEALING
10    PROVISIONS ON BAIL BOND SURETY LICENSING AND BAIL FORFEITURE
11    PROCEEDINGS.
12    This act affects sections of Utah Code Annotated 1953 as follows:
13    AMENDS:
14         77-20-1, as last amended by Chapter 252, Laws of Utah 1996
15         77-20-3, as enacted by Chapter 15, Laws of Utah 1980
16         77-20-4, as enacted by Chapter 15, Laws of Utah 1980
17         77-20-5, as last amended by Chapter 130, Laws of Utah 1994
18         77-20-7, as enacted by Chapter 15, Laws of Utah 1980
19    ENACTS:
20         31A-24a-101, Utah Code Annotated 1953
21         31A-24a-102, Utah Code Annotated 1953
22         31A-24a-201, Utah Code Annotated 1953
23         31A-24a-202, Utah Code Annotated 1953
24         31A-24a-203, Utah Code Annotated 1953
25         31A-24a-204, Utah Code Annotated 1953
26         77-20a-101, Utah Code Annotated 1953
27         77-20a-102, Utah Code Annotated 1953


1         77-20a-103, Utah Code Annotated 1953
2         77-20a-104, Utah Code Annotated 1953
3         77-20a-105, Utah Code Annotated 1953
4    REPEALS:
5         77-20-11, as last amended by Chapter 243, Laws of Utah 1996
6         77-20-12, as enacted by Chapter 130, Laws of Utah 1994
7         77-20-13, as enacted by Chapter 130, Laws of Utah 1994
8         77-20a-1, as last amended by Chapter 79, Laws of Utah 1996
9         77-20a-2, as enacted by Chapter 54, Laws of Utah 1983
10         77-20a-3, as enacted by Chapter 54, Laws of Utah 1983
11         77-20a-4, as enacted by Chapter 54, Laws of Utah 1983
12         77-20a-5, as enacted by Chapter 54, Laws of Utah 1983
13         77-20a-6, as enacted by Chapter 54, Laws of Utah 1983
14    Be it enacted by the Legislature of the state of Utah:
15        Section 1. Section 31A-24a-101 is enacted to read:
16    
CHAPTER 24a. COMMERCIAL BAIL BOND SURETY LICENSING ACT

17    
Part 1. General Provisions

18         31A-24a-101. Title.
19        This chapter is known as the "Commercial Bail Bond Surety Licensing Act."
20        Section 2. Section 31A-24a-102 is enacted to read:
21         31A-24a-102. Definitions.
22        As used in this chapter, "bail bond surety" means a person or entity who is licensed under
23    this chapter to issue bonds to secure:
24        (1) the release of a person from incarceration; and
25        (2) the appearance of that person at court hearings.
26        Section 3. Section 31A-24a-201 is enacted to read:
27    
Part 2. Licensing Bail Bond Sureties

28         31A-24a-201. Requirement and form of license.
29        (1) A license issued under this chapter or Title 77, Chapter 20, Bail, is required to issue
30    bonds as a bail bond surety.
31        (2) A license issued under this chapter shall be in a form prescribed by the commissioner

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1    and set forth:
2        (a) the name, address, and telephone number of the licensee;
3        (b) the date of license issuance; and
4        (c) other information the commissioner considers necessary.
5        Section 4. Section 31A-24a-202 is enacted to read:
6         31A-24a-202. Qualifications for licensure.
7        Each applicant for licensure as a bail bond surety shall:
8        (1) submit an application in a form prescribed by the commissioner;
9        (2) pay a fee determined by the commissioner under Section 63-38-3.2;
10        (3) be of good moral character;
11        (4) provide a statement of whether the applicant:
12        (a) has been refused a license or had a license revoked by any public authority for reasons
13    which indicate lack of honesty or integrity, or which show improper business practices on the part
14    of the applicant;
15        (b) has had a license as a bail bond surety revoked in this or any other state;
16        (c) has participated in or been connected with any transaction which tends to show
17    unfitness to act in a fiduciary capacity or to maintain the standards of fairness and honesty required
18    of a trustee or other fiduciary;
19        (d) has willfully misstated or negligently reported any material fact in the application filed
20    under this section or procured a misstatement in the documents in support thereof;
21        (e) is the subject of any outstanding civil judgment;
22        (f) has been convicted of any felony or a misdemeanor which involves the
23    misappropriation of money or property, dishonesty, or perjury;
24        (5) provide a statement that the applicant:
25        (a) is or will be doing business under one name and has complied or will comply with state
26    and local business regulations, including filing with the appropriate authority if doing business
27    under an assumed name;
28        (b) has not failed to report, preserve, and retain separately, or return collateral taken as
29    security on any bond to the principal, indemnitor, or depositor of such collateral;
30        (c) has no outstanding judgments on bail forfeitures which are subject to execution
31    existing in Utah or any other state;

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1        (d) will advise the commissioner, in advance, of any change which would reduce the
2    applicant's net worth during the year of qualification;
3        (e) has not used and will not use any preferential relationship with a person employed at
4    any jail facility to obtain referrals;
5        (f) will not offer consideration or gratuities to jail personnel or peace officers under any
6    circumstances which would permit the inference that the consideration was offered to induce
7    bonding referrals or recommendations; and
8        (g) is the holder of real or personal property within the state;
9        (6) provide a statement of the number of years the applicant has done business as a bail
10    bond surety in this or another state;
11        (7) provide a statement of the applicant's net worth, exclusive of property exempt from
12    execution, and the amount of insurance coverage or surety bonds, if any; and
13        (8) provide:
14         (a) an irrevocable letter of credit with a minimum face value of $250,000 assigned to the
15    state from a qualified Utah financial institution;
16        (b) if the applicant relies on the ownership of real or personal property as the financial
17    basis for issuing bail bonds:
18        (i) a current financial statement reviewed by a certified public accountant, showing a net
19    worth of at least $250,000, at least $50,000 of which consists of liquid assets;
20        (ii) a copy of the applicant's federal income tax return for the prior two years; and
21        (iii) for each parcel of real property owned by the applicant, a title letter and a recent
22    appraisal; or
23        (c) if the applicant relies on insurance coverage as the sole basis for issuing bail bonds, a
24    Qualifying Power of Attorney issued by the applicant's insurer, which shall be:
25        (i) in good standing; and
26        (ii) authorized to write bail bond policies in this state.
27        Section 5. Section 31A-24a-203 is enacted to read:
28         31A-24a-203. Term and renewal of license.
29        (1) (a) The commissioner shall issue each license under this chapter in accordance with
30    a two-year renewal cycle established by rule.
31        (b) The commissioner may by rule extend or shorten a renewal period by as much as one

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1    year to stagger the renewal cycle it administers.
2        (2) Beginning July 1, 1997, a license issued under Title 77, Chapter 20, Bail, shall be
3    renewed in accordance with this section.
4        (3) At the time of renewal, a licensee shall comply with the requirements of Section
5    31A-24a-202, except that property need not be appraised as would otherwise be required by
6    Subsection 31A-24a-202(8)(b).
7        (4) Notwithstanding Subsection (3), a licensee shall fully comply with the requirements
8    of 31A-24a-202 every sixth anniversary of initial licensure under this chapter or Title 77, Chapter
9    20, Bail.
10        Section 6. Section 31A-24a-204 is enacted to read:
11         31A-24a-204. Termination of license.
12        (1) A license issued under this chapter remains in force until:
13        (a) revoked, suspended, or limited under Subsection (2);
14        (b) lapsed under Subsection (6); or
15        (c) surrendered to and accepted by the commissioner.
16        (2) After an adjudicative proceeding under Title 63, Chapter 46b, Administrative
17    Procedures Act, the commissioner may revoke, suspend, or limit in whole or in part the license of
18    any bail bond surety for:
19        (a) incompetency;
20        (b) failing to report, preserve, and retain separately any collateral taken as security on any
21    bond to the principal, indemnitor, or depositor of such collateral;
22        (c) failing to return collateral taken as security on any bond to the depositor of such
23    collateral, or the depositor's designee, within ten business days of having been notified of the
24    exoneration of the bond;
25        (d) having a license as a bail bond surety revoked in this or any other state;
26        (e) participating in or being connected with any transaction that tends to show unfitness
27    to act in a fiduciary capacity or to maintain the standards of fairness and honesty required of a
28    fiduciary;
29        (f) being the subject of any outstanding civil judgment that would reduce the surety's net
30    worth below the minimum required for licensure;
31        (g) being convicted of any felony or a misdemeanor which involves the misappropriation

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1    of money or property, dishonesty, or perjury;
2        (h) having an outstanding judgment on a bail forfeiture, if the judgment is or has been
3    subject to execution;
4        (i) using a relationship with any person employed by a jail facility to obtain referrals or
5    recommendations;
6        (j) offering consideration or gratuities to jail personnel or peace officers under any
7    circumstances which would permit the inference that the consideration was offered to obtain
8    referrals or recommendations;
9        (k) if the licensee relies on insurance coverage as the sole basis for issuing bail bonds,
10    having bail bond obligations in excess of the amount allowed by the licensee's insurer;
11        (l) if the licensee relies on the ownership of real or personal property as the financial basis
12    for issuing bail bonds, exceeding the following amounts:
13        (i) a ratio of outstanding bond obligations to net worth of 5 to 1, if the licensee has been
14    licensed in Utah for 36 months or less; or
15        (ii) a ratio of outstanding bond obligations to net worth of 10 to 1, if the licensee has been
16    licensed in Utah for more than 36 months; and
17        (m) failing to deliver to the incarcerated person, prior to the time the incarcerated person
18    is released from jail, documents which describe, at a minimum, the following:
19        (i) the amount of the licensee's fee;
20        (ii) the additional collateral, if any, that will be held by the licensee;
21        (iii) the incarcerated person's obligations to the licensee and the court;
22        (iv) the conditions upon which the bond may be revoked;
23        (v) any additional charges or interest that may accrue;
24        (vi) any cosignors or indemnitors that will be required; and
25        (vii) the conditions under which the bond may be exonerated and the collateral returned.
26        (3) Every order suspending a license issued under this chapter shall specify the period for
27    which the suspension is effective, but in no event may the period exceed 12 months.
28        (4) An order revoking a license under Subsection (2) may specify a time, not to exceed
29    five years, within which the former licensee may not apply for a new license. If no time is
30    specified, the former licensee may not apply for a new license for five years without express
31    approval by the commissioner.

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1        (5) Any person whose license is suspended or revoked under Subsection (2) shall, when
2    the suspension ends or a new license is issued, pay all fees that would have been payable if the
3    license had not been suspended or revoked, unless the commissioner by order waives the payment
4    of the interim fees. If a new license is issued more than three years after the revocation of a similar
5    license, this Subsection (5) applies only to the fees that would have accrued during the three years
6    immediately following the revocation.
7        (6) Any license issued under this chapter shall lapse if the licensee fails to pay when due
8    a fee under Section 31A-24a-202. The commissioner shall by rule prescribe license reinstatement
9    procedures.
10        (7) A licensee under this chapter whose license is suspended, revoked, or lapsed, but who
11    continues to act as a licensee, is subject to the penalties for acting as a licensee without a license.
12        (8) (a) In any circumstances that would justify a suspension under Subsection (2), the
13    commissioner may put the licensee on probation for a specified period no longer than 24 months.
14        (b) The probation order shall state the conditions for retention of the license which shall
15    be reasonable.
16        (c) Any violation of the probation is grounds for revocation pursuant to a proceeding
17    authorized under Title 63, Chapter 46b, Administrative Procedures Act.
18        (9) Any person licensed in this state shall immediately report to the commissioner:
19        (a) a suspension or revocation of that person's license in any other state, District of
20    Columbia, or territory of the United States;
21        (b) the imposition of a disciplinary sanction imposed on that person by any other state,
22    District of Columbia, or territory of the United States; and
23        (c) a judgment or injunction entered against that person on the basis of conduct involving
24    fraud, deceit, misrepresentation, or violation of a bail bond surety law or rule.
25        Section 7. Section 77-20-1 is amended to read:
26         77-20-1. Right to bail -- Denial of bail -- Conditions of release -- Hearing.
27        (1) A person charged with or arrested for a criminal offense shall be admitted to bail as
28    a matter of right, except if the person is charged with a:
29        (a) capital offense, when the court finds there is substantial evidence to support the charge;
30        (b) felony committed while on probation or parole, or while free on bail awaiting trial on
31    a previous felony charge, when there is substantial evidence to support the current felony charge;

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1    or
2        (c) felony when the court finds there is substantial evidence to support the charge and the
3    court finds by clear and convincing evidence that the person:
4        (i) would constitute a substantial danger to any other person or to the community[, or];
5        (ii) is likely to flee the jurisdiction of the court, if released on bail[.]; or
6        (iii) committed a material violation of a condition of release while on bail.
7        (2) Any person who may be admitted to bail may [likewise] be released on his own
8    recognizance or [without] upon posting a bond:
9        (a) on condition that he appear in court for future proceedings in the case; and
10        (b) on conditions imposed in the discretion of the magistrate or court to reasonably:
11        (i) ensure the appearance of the accused;
12        (ii) ensure the integrity of the court process;
13        (iii) prevent direct or indirect contact with witnesses or victims by the accused, if
14    appropriate; and
15        (iv) ensure the safety of the public.
16        (3) The initial order denying or fixing the amount of bail shall be issued by the magistrate
17    or court issuing the warrant of arrest or by the magistrate or court presiding over the accused's first
18    judicial appearance. The magistrate or court may rely upon information contained in:
19        (a) the indictment or information;
20        (b) any sworn probable cause statement;
21        (c) information provided by any pretrial services agency; or
22        (d) any other reliable record or source.
23        (4) A motion to modify the initial order may be made by a party at any time upon notice
24    to the opposing party sufficient to permit the opposing party to prepare for hearing and to permit
25    any victim to be notified and be present. Hearing on a motion to modify may be held in
26    conjunction with a preliminary hearing or any other pretrial hearing. The magistrate or court may
27    rely on information as provided in Subsections (3)(a) through (d) and may base its ruling on
28    evidence provided at the hearing so long as each party is provided an opportunity to present
29    additional evidence or information relevant to bail.
30        (5) Subsequent motions to modify bail orders may be made only upon a showing that there
31    has been a material change in circumstances.

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1        (6) An appeal may be taken from an order of any court denying bail to the Supreme Court,
2    which shall review the determination under Subsection (1).
3        Section 8. Section 77-20-3 is amended to read:
4         77-20-3. Release on own recognizance -- Changing amount of bail or conditions of
5     release.
6        (1) Any person who may be admitted to bail may likewise be released on his own
7    recognizance in the discretion of the magistrate.
8        (2) After releasing a defendant on his own recognizance or admitting the defendant to bail,
9    the magistrate or court may[, in his discretion,]:
10        (a) impose bail;
11        (b) increase or decrease the amount of the bail; or
12        (c) modify the conditions of release imposed under Subsection 77-20-1(2).
13        Section 9. Section 77-20-4 is amended to read:
14         77-20-4. Bail posted in cash or written undertaking.
15        Bail may be posted in cash or written undertaking with or without sureties at the discretion
16    of the magistrate or court. Written undertaking shall substantially conform to any form approved
17    by the supreme court. No bail shall be accepted without the current mailing address of the surety
18    provided in writing at the time the bail is posted.
19        Section 10. Section 77-20-5 is amended to read:
20         77-20-5. Qualifications of sureties -- Justification -- Requirements of undertaking.
21        (1) The sureties on written undertakings shall be real or personal property holders within
22    the state. The qualifications and bonding limits of bail bond sureties who are engaged in the
23    for-profit, commercial business of posting property bonds shall be [established by the Bail Bond
24    Surety Licensing Board and rules adopted by the Judicial Council] in accordance with Title 31A,
25    Chapter 24a, Commercial Bail Bond Surety Licensing Act. All other sureties shall collectively
26    have a net worth of at least twice the amount of the undertaking, exclusive of property exempt
27    from execution.
28        (2) Each surety shall justify by affidavit upon the undertaking and each may be further
29    examined upon oath by the magistrate or by the prosecuting attorney in the presence of a
30    magistrate, in respect to his property and net worth.
31        (3) The undertaking shall, in addition to other requirements, provide that each surety

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1    submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as
2    his agent upon whom any papers affecting his liability on the undertaking may be served, and that
3    his liability may be enforced on motion and upon such notice as the court may require without the
4    necessity of an independent action.
5        Section 11. Section 77-20-7 is amended to read:
6         77-20-7. Duration of liability on undertaking -- Notices to sureties -- Exoneration if
7     charges not filed.
8        (1) The principal and the sureties on the written undertaking are liable thereon during all
9    proceedings and for all appearances required of the defendant up to and including the surrender
10    of the defendant in execution of any sentence imposed irrespective of any contrary provision in
11    the undertaking.
12        (2) Notice of any required appearance by the defendant may be given by the court to the
13    sureties who shall thereupon cause the defendant's appearance as required. Any failure of the
14    defendant to appear when required is a breach of the conditions of the undertaking or bail and
15    subjects it to forfeiture irrespective of whether or not notice was given to the sureties.
16        (3) (a) If no information or indictment charging a person with an offense is filed in court
17    within 120 days of the date of the bail undertaking or cash receipt, the court may relieve a person
18    from the conditions of release upon request, and the bond or undertaking shall be exonerated
19    without further order of the court unless the prosecutor requests an extension of time before the
20    end of the 120-day period by:
21        (i) filing a notice for extension with the court; and
22        (ii) serving the notice for extension upon the sureties and the person or his attorney.
23        (b) A court may extend bail and conditions of release for good cause.
24        (c) Notwithstanding Subsection (3)(a), charges may be filed against a person at any time.
25        Section 12. Section 77-20a-101 is enacted to read:
26         77-20a-101. Responsibilities of surety.
27        (1) For purposes of this chapter, "surety" means a person who posts a bail or property bond
28    and may include the defendant.
29        (2) A surety shall provide a current mailing address in writing, as required by Section
30    77-20-4, when a bond is posted.
31        (3) The principal and sureties on a posted bond shall be liable for all proceedings and for

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1    all appearances required by the defendant, including sentencing.
2        (4) Bail shall be exonerated without further notice of the court:
3        (a) upon the entry of sentence, judgment, or commitment; or
4        (b) as otherwise provided in this chapter.
5        Section 13. Section 77-20a-102 is enacted to read:
6         77-20a-102. Notice of defendant's nonappearance.
7        (1) If a defendant who has posted bail fails to appear before the appropriate court when
8    required, the clerk of the court shall:
9        (a) enter the defendant's failure to appear in the docket;
10        (b) mail notice of nonappearance by certified mail, return receipt requested, within 30 days
11    to the address of the surety who posted the bond; and
12        (c) deliver a copy of the notice sent under Subsection (1)(b) to the prosecutor's office when
13    the notice is sent.
14        (2) If notice is not provided in accordance with Subsection (1)(b), the prosecutor may mail
15    notice of nonappearance and a certified copy of the bail bond by certified mail, return receipt
16    requested, to the address of the surety within five days of the 30-day period provided under
17    Subsection (1)(b).
18        (3) If notice of nonappearance is not mailed in accordance with Subsection (1) or (2), the
19    bail shall be exonerated without further notice.
20        Section 14. Section 77-20a-103 is enacted to read:
21         77-20a-103. Time for bringing defendant to court.
22        (1) If notice of nonappearance has been mailed to a surety under Section 77-20a-102, the
23    surety may bring the defendant before the court within six months of the date of nonappearance
24    during which time a forfeiture action on the bond may not be brought.
25        (2) A surety may request an extension of the six-month time period in Subsection (1), if
26    the surety, within the six-month time period:
27        (a) files a motion for time extension with the court; and
28        (b) mails the motion for time extension and a notice of hearing on the motion to the
29    prosecutor.
30        (3) The court may extend the six-month time period in Subsection (1) for up to 60 days
31    if:

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1        (a) the surety complies with Subsection (2); and
2        (b) good cause is shown.
3        Section 15. Section 77-20a-104 is enacted to read:
4         77-20a-104. Defendant in custody of other authorities.
5        (1) If a surety is unable to bring a defendant to the court because the defendant is and will
6    be in the custody of authorities of another jurisdiction for the duration of the six-month period
7    provided in Section 77-20a-103, the surety shall notify the court and the prosecutor of that fact and
8    the name, address, and telephone number, if available, of the custodial authority.
9        (2) A bond shall be exonerated if notice is given pursuant to Subsection (1) upon the
10    earlier of:
11        (a) the prosecuting attorney lodging a detainer on the defendant; or
12        (b) 60 days after notice is given to the prosecutor under Subsection (1).
13        Section 16. Section 77-20a-105 is enacted to read:
14         77-20a-105. Forfeiture of bail bond.
15        (1) If a surety fails to bring a defendant before the court within the time provided in
16    Section 77-20a-103, the prosecuting attorney may request the forfeiture of the bond by:
17        (a) filing a motion for bond forfeiture with the court and attaching the certified mail receipt
18    for the notice of nonappearance sent to the surety; and
19        (b) mailing a copy of the motion and certified mail receipt to the surety.
20        (2) A surety may contest a motion for bond forfeiture by filing an objection within ten
21    days of the prosecutor's mailing of the motion to the surety.
22        (3) A court shall enter judgment of bond forfeiture, without further notice, if it finds by
23    a preponderance of the evidence that:
24        (a) the defendant failed to appear as required;
25        (b) the surety was given notice of the defendant's nonappearance in accordance with
26    Section 77-20a-102;
27        (c) the surety failed to bring the defendant to the court within the six-month period
28    provided in Section 77-20a-103;
29        (d) there is no evidence that the defendant is deceased or in the custody of authorities of
30    another jurisdiction; and
31        (e) more than ten days have passed since the motion for bond forfeiture was mailed to the

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1    surety.
2        (4) A judgment entered pursuant to Subsection (3) shall:
3        (a) name the surety against whom the judgment is granted;
4        (b) specify the amount of bail forfeited;
5        (c) grant the forfeited bail to the prosecuting entity; and
6        (d) be docketed by the clerk of the court in the civil judgment docket.
7        (5) A prosecutor may immediately commence collection proceedings to execute a
8    judgment of bond forfeiture against the property of the surety.
9        Section 17. Repealer.
10        This act repeals:
11        Section 77-20-11, Bail Bond Surety Licensing Board -- Establishment -- Appointment
12     of members -- Terms.
13        Section 77-20-12, Bail Bond Surety Licensing Board -- Duties.
14        Section 77-20-13, Judicial Council -- Rulemaking authority.
15        Section 77-20a-1, Entry in minutes as forfeiture -- Notice -- Release of surety on
16     failure of notice.
17        Section 77-20a-2, Judgment on bail -- Execution.
18        Section 77-20a-3, Setting aside forfeiture or judgment -- Grounds -- Time for
19     application.
20        Section 77-20a-4, Defendant detained by other authority -- Procedure -- Costs of
21     returning defendant.
22        Section 77-20a-5, Liquidated costs of returning defendant -- Judgment against surety
23     -- Execution.
24        Section 77-20a-6, Execution of judgment.
25        Section 18. Coordination clause.
26        If this bill and H.B. 323, Court Amendments, both pass, it is the intent of the Legislature
27    that this bill govern the renumbering and amending of Section 77-20-11.


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Legislative Review Note
    as of 2-18-97 12:40 PM


A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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