First Substitute S.B. 127

Senator Terry R. Spencer proposes to substitute the following bill:

1 BAIL BOND AMENDMENTS
2 2001 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Terry R. Spencer
5 This act modifies the Code of Criminal Procedure and the Insurance Code regarding bail
6 bond surety companies by providing procedures for actions against bail bond surety
7 companies for failure to pay bail bond forfeitures. This act also amends provisions
8 regarding the surety's and the prosecutor's functions if a defendant fails to appear,
9 procedures for exoneration of the bond, and procedures for transportation of the defendant.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 AMENDS:
12 77-20-8.5, as last amended by Chapters 1 and 259, Laws of Utah 2000
13 77-20b-101, as last amended by Chapter 259, Laws of Utah 2000
14 77-20b-104, as last amended by Chapter 259, Laws of Utah 2000
15 ENACTS:
16 31A-35-504, Utah Code Annotated 1953
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 31A-35-504 is enacted to read:
19 31A-35-504. Failure to pay bail bond forfeiture - Grounds for suspension and
20 revocation of bail bond surety license.
21 (1) As used in this section:
22 (a) "Company" means a bail bond surety company.
23 (b) "Judgment" means a judgment of bond forfeiture issued under Section 77-20b-104 .
24 (2) (a) A company shall pay a judgment not later than 15 days following service of notice
25 upon the company from a prosecutor of the entry of the judgment.

26 (b) A prosecutor who does not receive proof of or notice of payment of the judgment
27 within 15 days after the service of notice to the company of a judgment shall notify the
28 commissioner of the failure to pay the judgment.
29 (c) If notice of entry of judgment is served upon the company by mail, three additional
30 days are added to the 15 days provided in Subsections (2)(a) and (2)(b).
30a S (d) A PROSECUTOR SHALL NOT PROCEED UNDER SUBSECTION (2)(b) IF A COMPANY
30b PROVIDES NOTICE OF A MOTION TO SET ASIDE JUDGMENT OR NOTICE OF AN APPLICATION FOR
30c AN EXTRAORDINARY WRIT PRIOR TO THE END OF THE PAYMENT PERIOD . s
31 (3) (a) The commissioner shall suspend the license of the company not later than five days
32 following receipt of notice from a prosecutor of the company's failure to pay the judgment.
33 (b) The suspension shall be for 60 days and shall be in accordance with Section
34 31A-35-502 .
35 (4) (a) If the prosecutor receives proof of or notice of payment of the judgment during the
36 suspension period under Subsection (3), the prosecutor shall immediately notify the commissioner
37 of the payment. The notice shall be in writing and by the most expeditious means possible, which
38 may be via facsimile or any other electronic means, followed by the prosecutor's mailing of the
39 original written notification to the commissioner.
40 (b) The commissioner shall vacate any suspension of the company's license due solely to
41 the failure to pay a judgment, which is then paid under Subsection (4)(a), not later than five days
42 after the commissioner receives the original written notification from the prosecutor, regardless
43 of whether the prosecutor also sent the notification via facsimile or other electronic means.
44 However, any suspension under this Subsection (4) may not be for fewer than 14 days.
45 (c) The commissioner may not vacate any suspension under this section for fewer than 14
46 days after receiving notification under Subsection (2) of failure to pay a judgment, even if the
47 suspension for 14 days causes the total suspension of a company's license to extend beyond 60
48 days because the company had failed to pay a prior judgment and the commissioner had suspended
49 the company's license based on that prior failure to pay.
50 (5) The commissioner may not vacate a suspension under Subsection (3) if at the time the
51 commissioner receives notification under Subsection (4)(a) of payment of a judgment:
52 (a) at least one other unpaid judgment against the company exists;
53 (b) the commissioner has received notice under Subsection (2) of the company's failure
54 to pay that judgment; and
55 (c) the commissioner has not received notice under Subsection (4)(a) of the company's
56 payment of that outstanding judgement.
57 (6) The commissioner shall commence an administrative proceeding to revoke the license
58 of a company that fails to pay a judgment of bond forfeiture before the expiration date of the
59 suspension period.
60 (7) This section does not restrict or otherwise affect the rights of a prosecutor to commence
61 collection proceedings under Subsection 77-20b-104 (5).
62 Section 2. Section 77-20-8.5 is amended to read:
63 77-20-8.5. Sureties -- Surrender of defendant -- Arrest of defendant.
64 (1) (a) Sureties may at any time prior to a [forfeiture of their bail] defendant's failure to
65 appear surrender the defendant and obtain exoneration of bail, by notifying the clerk of the court
66 in which the bail was posted of the defendant's surrender and requesting exoneration. Notification
67 [will] shall be [done] made immediately following the surrender by surface mail, electronic mail,
68 or fax.
69 (b) To effect surrender, a certified copy of the surety's undertaking from the court in which
70 it was posted[,] or[,] a copy of the bail agreement with the defendant shall be delivered to the
71 on-duty jailer, who [will] shall detain the defendant in the on-duty jailer's custody as upon a
72 commitment, and shall in writing acknowledge the surrender upon the copy of the undertaking or
73 bail agreement. The certified copy of the undertaking or copy of the bail agreement upon which
74 the acknowledgment of surrender is endorsed shall be filed with the court. The court may then,
75 upon proper application, order the undertaking exonerated and may order a refund of any paid
76 premium, or part of a premium, as it finds just.
77 (2) For the purpose of surrendering the defendant, the sureties may:
78 (a) arrest the defendant:
79 (i) at any time before the defendant is finally exonerated; and
80 (ii) at any place within the state; and
81 (b) surrender the defendant to any [correctional facility] county jail booking facility in
82 Utah.
83 (3) An arrest under this section is not a basis for exoneration of the bond under Section
84 77-20b-101 .
85 [(3)] (4) A surety acting under this section is subject to Title 53, Chapter 11, Bail Bond
86 Recovery Act.
87 Section 3. Section 77-20b-101 is amended to read:

88 77-20b-101. Entry of nonappearance -- Notice to surety -- Release of surety on
89 failure of timely notice.
90 (1) If a defendant who has posted bail fails to appear before the appropriate court when
91 required and the court issues a bench warrant or directs that the surety be given notice of the
92 nonappearance, the clerk of the court shall:
93 (a) mail notice of nonappearance by certified mail, return receipt requested, within 30 days
94 to the address of the surety who posted the bond; [and]
95 (b) notify the surety of the name, address, telephone number, and fax number of the
96 prosecutor;
97 [(b)] (c) deliver a copy of the notice sent under Subsection (1)(a) to the prosecutor's office
98 at the same time notice is sent under Subsection (1)(a)[.]; and
99 (d) ensure that the name, address, and telephone number of the surety is stated on the
100 bench warrant.
101 (2) [If notice is not provided in accordance with Subsection (1)(a), the] The prosecutor
102 may mail notice of nonappearance by certified mail, return receipt requested, to the address of the
103 surety within [seven] 37 days after the [end of the 30-day period under Subsection (1)(a)] date of
104 the defendant's failure to appear.
105 (3) If notice of nonappearance is not mailed to a surety, other than the defendant, in
106 accordance with Subsection (1) or (2), the surety is relieved of further obligation under the bond
107 if the surety's current name and address are on the bail bond in the court's file.
108 (4) (a) A bond ordered forfeited by the court may not be reinstated without the mutual
109 agreement of the surety and the court.
110 (b) If the defendant is arrested and booked into a county jail booking facility pursuant to
111 a warrant for failure to appear on the original charges [and then released for any reason, the
112 original bond shall be exonerated.], the surety may file a motion with the court to exonerate the
113 bond. The surety shall deliver a copy of the motion to the prosecutor.
114 (c) Unless the court makes a finding of good cause why the bond should not be exonerated,
115 it shall exonerate the bond if:
116 (i) the surety has delivered the defendant to the county jail booking facility in the county
117 where the original charge is pending;
118 (ii) the defendant has been released on a bond secured from a subsequent surety for the

119 original charge and the failure to appear;
120 (iii) after an arrest S [ by the surety, or an arrest in which the surety substantially assisted ] s ,
120a the
121 defendant has escaped from jail or has been released on the defendant's own recognizance,
122 pursuant to a pretrial release, under a court order regulating jail capacity, or by a sheriff's release
123 under Section 17-22-5.5 ; or
124 (iv) the surety has transported or agreed to pay for the transportation of the defendant from
125 a location outside of the county back to the county where the original charge is pending, and the
126 payment is in an amount equal to government transportation expenses listed in Section 76-3-201 .
127 (d) Under circumstances not otherwise provided for in this section, the court may
128 exonerate the bond if it finds that the prosecutor has been given reasonable notice of a surety's
129 motion and there is good cause for the bond to be exonerated.
130 (e) If a surety's bond has been exonerated under this section and the surety remains liable
131 for the cost of transportation of the defendant, the surety may take custody of the defendant for the
132 purpose of transporting the defendant to the jurisdiction where the charge is pending.
133 Section 4. Section 77-20b-104 is amended to read:
134 77-20b-104. Forfeiture of bail.
135 (1) If a surety fails to bring the defendant before the court within the time provided in
136 Section 77-20b-102 , the prosecuting attorney may request the forfeiture of the bail by:
137 (a) filing a motion for bail forfeiture with the court, supported by proof of notice to the
138 surety of the defendant's nonappearance; and
139 (b) mailing a copy of the motion to the surety.
140 (2) A court shall enter judgment of bail forfeiture without further notice if it finds by a
141 preponderance of the evidence:
142 (a) the defendant failed to appear as required;
143 (b) the surety was given notice of the defendant's nonappearance in accordance with
144 Section 77-20b-101 ;
145 (c) the surety failed to bring the defendant to the court within the six-month period under
146 Section 77-20b-102 ; and
147 (d) the prosecutor has complied with the notice requirements under Subsection (1).
148 (3) If the surety shows by a preponderance of the evidence that it has failed to bring the
149 defendant before the court because the defendant is deceased through no act of the surety, the court

150 may not enter judgment of bail forfeiture.
151 (4) The amount of bail forfeited is the face amount of the bail bond, but if the defendant
152 is in the custody of another jurisdiction and the state extradites or intends to extradite the
153 defendant, the court may reduce the amount forfeited to the actual or estimated costs of returning
154 the defendant to the court's jurisdiction. A judgment under this Subsection (4) shall:
155 (a) identify the surety against whom judgment is granted;
156 (b) specify the amount of bail forfeited;
157 (c) grant the [forfeited bail to the prosecuting entity] forfeiture of the bail; and
158 (d) be docketed by the clerk of the court in the civil judgment docket.
159 (5) A prosecutor may immediately commence collection proceedings to execute a
160 judgment of bond forfeiture against the assets of the surety.