HOUSE OF REPRESENTATIVES

H.B. NO.

2868

TWENTY-SIXTH LEGISLATURE, 2012

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO BAIL.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Chapter 804, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part    .  Bail bond agents; sureties

     §804-    Definitions.  As used in this part, unless the context otherwise requires:

     "Bail agent" or "bail bond agent" means any person who furnishes bail for compensation in any court in this State and who is appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings.  "Bail agent" shall not include a person who is a full-time salaried officer or employee of an insurer or a person who pledges United States currency, a United States postal money order, a cashier's check, or other property as security for a bail bond in connection with a judicial proceeding, whether for compensation or otherwise.

     "Bail fugitive" means a defendant in a pending criminal case who has been released from custody under a financially secured appearance, cash, or other bond and has had that bond declared forfeited, or a defendant in a pending criminal case who has violated a bond condition whereby apprehension and re-incarceration are permitted.

     "Bail insurance company" means an insurer engaged in the business of writing bail appearance bonds through bonding agents and is subject to regulation by the insurance commissioner of the department of commerce and consumer affairs.

     "Compensated surety" means any person in the business of writing bail appearance bonds who is subject to regulation by the director of commerce and consumer affairs. 

     "Depositor of bail" means a person or entity that has deposited money, stocks, bonds, or other real or personal property to secure the release of a person charged with a crime or offense.

     "Insurance commissioner" or "commissioner" means the insurance commissioner of the State.

     "On the board" means that the name of a compensated surety has been publicly posted or disseminated by a court as being ineligible to write bail bonds."

     SECTION 2.  Chapter 804, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

     "§804-    Exoneration from bond liability.  (a)  Any person executing a bail bond as principal or as surety shall be exonerated as follows:

     (1)  When the condition of the bond has been satisfied;

     (2)  When the amount of the forfeiture has been paid;

(3)  When the surety appears and provides satisfactory evidence to the court that the defendant is unable to appear before the court due to the defendant's death or the detention or incarceration of the defendant in a foreign jurisdiction if the defendant is incarcerated for a period in excess of ninety days and the State has refused to extradite the defendant; except that if the State extradites the defendant, all costs associated with the extradition shall be borne by the surety up to the amount of the bond.  For the purposes of this paragraph, "costs associated with extradition" shall be calculated as and limited to the round-trip mileage between the Hawaii court of jurisdiction and the location of the defendant's incarceration at the rate allowed for reimbursement, up to the amount of the bond; or

(4)  Upon surrender of the defendant into custody at any time before a judgment has been entered against the sureties for forfeiture of the bond, upon payment of all costs occasioned thereby.  A surety may seize and surrender the defendant to the chief of police of the county wherein the bond is taken, and it is the duty of the chief of police, on such surrender and delivery of a certified copy of the bond by which the surety is bound, to take the person into custody and, by writing, acknowledge the surrender.

     (b)  Upon entry of an order for deferred prosecution or deferred judgment, sureties upon any bond given for the appearance of the defendant shall be released from liability on the bond.

     (c)  A trial court has no jurisdiction to relieve the surety from liability on a bail bond except on grounds generally recognized by the law as excusing the performance of the undertaking, and such grounds exist only when:

(1)  The appearance of accused is made impossible by an act of God;

(2)  An act of the state that is the beneficiary of the bond; or

(3)  An act of law.

     §804-    Enforcement procedures for compensated sureties.  (a)  Each court of record in this State shall implement a board system for the recording and dissemination of the names of those compensated sureties who are prohibited from posting bail bonds in the state due to an unpaid judgment as set forth in this section.

     (b)  By entering into a bond, each obligor, including the bond principal and compensated surety, submits to the jurisdiction of the court and acknowledges the applicability of the forfeiture procedures set forth in this section.

     (c)  Liability of bond obligors on bonds issued by compensated sureties may be enforced, without the necessity of an independent action, as follows:

(1)  In the event a defendant does not appear before the court and is in violation of the primary condition of an appearance bond, the court may declare the bond forfeited;

(2)  If a bond is declared forfeited by the court, notice of the bail forfeiture order shall be served on the bail agent by certified mail and on the bail insurance company by regular mail within ten days after the entry of the forfeiture.  Service of notice of the bail forfeiture on the defendant is not required.  The notice shall include, but need not be limited to:

         (A)  A statement intended to inform the compensated surety of the entry of forfeiture;

         (B)  An advisement that the compensated surety has the right to request a show cause hearing fifteen days after receipt of notice of forfeiture, by procedures set by the court; and

         (C)  An advisement that, if the compensated surety does not request a show cause hearing, judgment shall be entered upon expiration of thirty days following the entry of forfeiture;

(3)  A compensated surety, upon whom notice of a bail forfeiture order has been served, shall have fifteen days after receipt of notice of the forfeiture to request a hearing to show cause why judgment on the forfeiture should not be entered for the State against the compensated surety.  The request shall be granted by the court and a hearing shall be set within thirty days after entry of forfeiture or at the court's earliest convenience.  At the conclusion of the hearing if requested by the compensated surety, the court may enter judgment for the State against the compensated surety, or the court may in its discretion order further hearings.  Upon expiration of thirty days after the entry of forfeiture, the court shall enter judgment for the State against the compensated surety if the compensated surety did not request a hearing to show cause;

(4)  If a show cause hearing was timely set, but the hearing did not occur within thirty days after the entry of forfeiture, any entry of judgment at the conclusion of the hearing against the compensated surety shall not be vacated on the grounds that the matter was not timely heard.  If judgment is entered against a compensated surety upon the conclusion of a requested show cause hearing, and the hearing did not occur within thirty days after the entry of forfeiture, execution upon the judgment shall be automatically stayed for no more than one hundred twenty days after entry of forfeiture;

(5)  If at any time prior to the entry of judgment, the defendant appears in court, either voluntarily or in custody after surrender or arrest, the court, on its own motion, shall direct that the bail forfeiture be set aside and the bond exonerated at the time the defendant first appears in court; except that if the State extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond;

(6)  If, at a time prior to the entry of judgment, the surety provides proof to the court that the defendant is in custody in any other jurisdiction within the state, the court, on its own motion, shall direct that the bail forfeiture be set aside and the bond exonerated; except that if the court extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond.  If the court elects to extradite the defendant, any forfeiture will be stayed until such time the defendant appears in the court where the bond returns;

(7)  A compensated surety shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or order of the court.  If the surety provides proof to the court that the defendant is in custody in any other jurisdiction within the state, within ninety days after the entry of judgment, the court, on its own motion, shall direct that the bail forfeiture judgment be vacated and the bond exonerated; except that if the court extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond.  If the court elects to extradite the defendant, any judgment will be stayed until the time the defendant appears in the court where the bond returns;

(8)  Execution upon the bail forfeiture judgment shall be automatically stayed for ninety days from the date of entry of judgment; except that if judgment is entered against a compensated surety upon the conclusion of a requested show cause hearing, and such hearing did not occur within thirty days after the entry of forfeiture, the judgment shall be automatically stayed;

(9)  Upon the expiration of the stay of execution described in paragraph (8), the bail forfeiture judgment shall be paid forthwith by the compensated surety, if not previously paid, unless the defendant appears in court, either voluntarily or in custody after surrender or arrest, or the court enters an order granting an additional stay of execution or otherwise vacates the judgment;

    (10)  If a bail forfeiture judgment is not paid on or before the expiration date of the stay of execution, the name of the bail bond agent shall be placed on the board of the court that entered the judgment.  The bail bond agent shall be prohibited from executing any further bail bonds in this State until the judgment ­giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court;

    (11)  If a bail forfeiture judgment remains unpaid for thirty days after the name of the bail bond agent is placed on the board, the court shall send notice by certified mail to the bail insurance company for whom the bail bond agent has executed the bond that, if the judgment is not paid within fifteen days after the date of mailing of the notice, the name of the bail insurance company shall be placed on the board and the company shall be prohibited from executing any further bail bonds in this State until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court;

    (12)  A compensated surety shall be removed forthwith from the board only after every judgment for which the compensated surety was placed on the board is satisfied, vacated, or discharged or stayed by entry of an additional stay of execution.  No compensated surety shall be placed on the board in the absence of the notice required by this section;

    (13)  The court may order that a bail forfeiture judgment be vacated and set aside or that execution thereon be stayed upon conditions as the court may impose, if it appears that justice so requires, as provided in chapter 804; provided that trial court has no jurisdiction to relieve the surety from liability on a bail bond except as provided in chapter 804;

    (14)  A compensated surety shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or by order of the court.  If the defendant appears in court, either voluntarily or in custody after surrender or arrest, within ninety days after the entry of judgment, the court, at the time the defendant first appears in court, on its own motion, shall direct that the bail forfeiture judgment be vacated and the bond exonerated; except that if the State extradites such defendant, all necessary and actual costs associated with such extradition shall be borne by the surety up to the amount of the bond;

    (15)  If, within one year after payment of the bail forfeiture judgment, the compensated surety effects the apprehension or surrender of the defendant and provides reasonable notice to the court to which the bond returns that the defendant is available for extradition, the court shall vacate the judgment and order a remission of the amount paid on the bond, less any necessary and actual costs incurred by the State and the sheriff who has actually extradited the defendant;

    (16)  Bail bonds shall be deemed valid notwithstanding the fact that a bond may have been written by a compensated surety who has been placed on the board and is otherwise prohibited from writing bail bonds.  The ineligibility of a compensated surety to write bonds because the name of the compensated surety has been placed on the board shall not be a defense to liability on any appearance bond accepted by a court;

    (17)  The automatic stay of execution upon a bail forfeiture judgment shall expire pursuant to its terms unless the defendant appears and surrenders to the court having jurisdiction or satisfies the court that appearance and surrender by the defendant was impossible and without fault by the defendant.  The court may order that a forfeiture be set aside and judgment vacated as set forth in this section; and

    (18)  If the name of a bail bond agent is placed on the board, and remains on the board for the same forfeiture for more than forty-five consecutive days, the court that placed the name of the bail bond agent on the board shall order the insurance commissioner to suspend the license of the bail bond agent until such time as all forfeitures and judgments ordered and entered against the bail bond agent have been certified as paid or vacated by order of a court of record.  If the bail forfeiture judgment is not paid within fifteen days after the name of a bail insurance company has been placed on the board, the insurance commissioner shall also order the bail insurance company on the bond to pay the judgment after notice and hearing."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon on January 7, 2059.



 

Report Title:

Bail Bonds; Compensated Surety; Enforcement

 

Description:

Establishes a new part under Chapter 804, Hawaii Revised Statutes (HRS), to provide comprehensive oversight and regulation of bail bond agents.  Establishes procedures for the exoneration of bail bond agents and sureties from bond liabilities and enforcement procedures for compensated sureties. Effective January 7, 2059.  (HB2868 HD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.