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[Introduced][Status][Bill Documents][Fiscal Note][Bills Directory]
S.B. 220
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BAIL AND BAIL BOND SURETY RELATED
2
AMENDMENTS
3
2000 GENERAL SESSION
4
STATE OF UTAH
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Sponsor: L. Steven Poulton
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AN ACT RELATING TO BAIL BONDS; AMENDING DEFINITIONS; ADDRESSING
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REQUIREMENTS FOR LICENSURE OR OBTAINING A CERTIFICATE OF AUTHORITY;
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ADDRESSING AUTHORITY RELATED TO BAIL BONDS; ADDRESSING FINANCIAL
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REQUIREMENTS FOR BAIL BOND SURETY COMPANIES; ADDRESSING PROCEDURES
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FOR ISSUING, DENYING, RENEWING, AND REINSTATING A BAIL BOND SURETY
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COMPANY'S LICENSE; ADDRESSING ENFORCEMENT; ADDRESSING REQUIREMENTS
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FOR AND RESTRICTION ON OPERATIONS; ADDRESSING SUBMISSION TO THE
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JURISDICTION OF THE COURT; ADDRESSING PROCEDURES UNDER THE BAIL BOND
14
SURETY ACT; AMENDING BAIL BOND PROVISIONS; AND MAKING TECHNICAL
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CHANGES.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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31A-35-101, as enacted by Chapter 293, Laws of Utah 1998
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31A-35-102, as enacted by Chapter 293, Laws of Utah 1998
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31A-35-104, as enacted by Chapter 293, Laws of Utah 1998
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31A-35-202, as last amended by Chapter 131, Laws of Utah 1999
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31A-35-301, as last amended by Chapter 131, Laws of Utah 1999
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31A-35-401, as enacted by Chapter 293, Laws of Utah 1998
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31A-35-402, as enacted by Chapter 293, Laws of Utah 1998
25
31A-35-404, as enacted by Chapter 293, Laws of Utah 1998
26
31A-35-405, as enacted by Chapter 293, Laws of Utah 1998
27
31A-35-406, as enacted by Chapter 293, Laws of Utah 1998
28
31A-35-501, as enacted by Chapter 293, Laws of Utah 1998
29
31A-35-502, as enacted by Chapter 293, Laws of Utah 1998
30
31A-35-503, as enacted by Chapter 293, Laws of Utah 1998
31
31A-35-602, as enacted by Chapter 293, Laws of Utah 1998
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31A-35-603, as enacted by Chapter 293, Laws of Utah 1998
33
31A-35-604, as enacted by Chapter 293, Laws of Utah 1998
34
31A-35-607, as enacted by Chapter 293, Laws of Utah 1998
35
31A-35-608, as enacted by Chapter 293, Laws of Utah 1998
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31A-35-701, as last amended by Chapter 131, Laws of Utah 1999
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31A-35-702, as enacted by Chapter 293, Laws of Utah 1998
38
31A-35-703, as enacted by Chapter 293, Laws of Utah 1998
39
31A-35-704, as enacted by Chapter 293, Laws of Utah 1998
40
77-20-8.5, as last amended by Chapter 257, Laws of Utah 1998
41
77-20-10, as enacted by Chapter 160, Laws of Utah 1988
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77-20b-101, as enacted by Chapter 293, Laws of Utah 1998
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77-20b-102, as enacted by Chapter 293, Laws of Utah 1998
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77-20b-103, as enacted by Chapter 293, Laws of Utah 1998
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77-20b-104, as enacted by Chapter 293, Laws of Utah 1998
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REPEALS:
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77-20-6, as enacted by Chapter 15, Laws of Utah 1980
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
31A-35-101
is amended to read:
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CHAPTER 35. BAIL BOND SURETIES AND AGENTS ACT
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31A-35-101. Title.
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This chapter is known as the "Bail Bond [Surety Licensing] Sureties and Agents Act."
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Section 2.
Section
31A-35-102
is amended to read:
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31A-35-102. Definitions.
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As used in this chapter:
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(1) "Bail bond" means a bond for a specified monetary amount [which] that is:
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(a) executed by a [qualified certificate holder under this chapter] bail bond agent licensed
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in accordance with Section
31A-35-401
; and
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(b) issued to a court, magistrate, or authorized officer as security for the subsequent court
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appearance of the defendant upon [his] the defendant's release from actual custody pending the
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appearance.
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(2) "Bail bond agent" means [any] an individual who:
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(a) is appointed by [an authorized bail bond]:
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(i) a surety insurer [or appointed by a licensed] that issues bail bonds; or
65
(ii) a bail bond surety company licensed under this chapter;
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(b) is appointed to execute or countersign undertakings of bail in connection with judicial
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proceedings; and [(b) who]
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(c) receives or is promised money or other things of value for [this service] engaging in
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an act described in Subsection (2)(b).
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(3) "Bail bond surety" means a person that:
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(a) (i) is a bail bond surety company [or bail bond surety insurer authorized by certificate
72
under this chapter to issue] licensed under this chapter; or
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(ii) a surety insurer; and
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(b) issues bonds to secure:
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[(a)] (i) the release of a person from incarceration; and
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[(b)] (ii) the appearance of that person at court hearings.
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(4) "Bail bond surety company" means any sole proprietor or entity who:
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(a) (i) is the agent of a surety insurer that issues a bail bond in connection with judicial
79
proceedings;
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(ii) pledges the assets of a letter of credit from a Utah depository institution for a bail bond
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in connection with judicial proceedings; or
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(iii) pledges personal or real property, or both, as security for a bail bond in connection
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with judicial proceedings; and
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(b) receives or is promised money or other things of value for a service described in
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Subsection (4)(a).
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[(4)] (5) "Bail enforcement agent" means an individual who:
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(a) [who] is employed or contracted with to:
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(i) enforce the terms and conditions of a defendant's release on bail in a civil or criminal
89
proceeding[, to];
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(ii) apprehend a defendant or surrender a defendant to custody[,]; or
91
(iii) both[, as is appropriate] Subsections (5)(a)(i) and (ii); and
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(b) [who] receives or is promised monies or other things of value for [these] the services
93
described in Subsection (5)(a).
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[(5)] (6) "Board" means the Bail Bond Surety Oversight Board created in Section
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31A-35-201
.
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[(6)] (7) "Certificate" means a certificate of authority issued under this chapter to allow
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[operation as a bail bond] an insurer to operate as a surety insurer.
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[(7) "Department" means the insurance department referred to under Title 31A, Chapter
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2, Part 1, The Insurance Department.]
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(8) "Indemnitor" means an entity or natural person who enters into an agreement with a
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bail bond surety to hold the bail bond surety harmless from loss incurred as a result of executing
102
a bail bond.
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[(9) "Insurance bail bond surety company" means any sole proprietor or entity who:]
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[(a) is the agent of an authorized bail bond surety insurer which issues a bail bond in
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connection with judicial proceedings; and]
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[(b) receives or is promised money or other things of value for this service.]
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[(10) "Letter of credit bail bond surety company" means any sole proprietor or entity who:]
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[(a) pledges the assets of a letter of credit from a financial institution for a bail bond in
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connection with judicial proceedings; and]
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[(b) receives or is promised money or other things of value for this service.]
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(9) "Liquid assets" means financial holdings that can be converted into cash in a timely
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manner without the loss of principal.
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[(11)] (10) "Principal" means an individual or corporation whose performance is
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guaranteed by bond.
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[(12) "Property bail bond surety company" means any sole proprietor or entity who:]
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[(a) pledges personal or real property, or both, as security for a bail bond in connection
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with judicial proceedings; and]
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[(b) receives or is promised money or other things of value for this service.]
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(11) "Surety insurer" means an insurer that:
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(a) is licensed under Chapter 4, 5, or 14;
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(b) receives a certificate under this title; and
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(c) issues bail bonds.
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(12) "Utah depository institution" is a depository institution, as defined in Section
7-1-103
,
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that:
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(a) has Utah as its home state; or
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(b) operates a branch in Utah.
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Section 3.
Section
31A-35-104
is amended to read:
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31A-35-104. Rulemaking authority.
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The [insurance] commissioner shall by rule establish specific licensure and certification
130
guidelines and standards of conduct for the business of bail bond surety insurance under this
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chapter.
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Section 4.
Section
31A-35-202
is amended to read:
133
31A-35-202. Board responsibilities.
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The board shall:
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(1) meet:
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(a) at least quarterly; and
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(b) at the call of the chair;
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(2) make written recommendations to the commissioner for rules governing the following
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aspects of the bail bond surety insurance business:
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(a) [certification] qualifications, applications, and fees for obtaining:
141
(i) a license required by this Section
31A-35-401
; or
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(ii) a certificate;
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(b) [bonding] limits on the aggregate amounts of bail bonds;
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(c) unprofessional conduct;
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(d) procedures for hearing and resolving allegations of unprofessional conduct; and
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(e) sanctions for unprofessional conduct;
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(3) screen:
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(a) bail bond surety company [certificate applicants and applications] license applications;
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and
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(b) persons applying for a bail bond surety company license;
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(4) recommend to the [insurance] commissioner action regarding the granting, renewing,
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suspending, revoking, and reinstating of bail bond surety company [certificates] license; and
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(5) (a) conduct investigations of allegations of unprofessional conduct on the part of
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persons or bail bond sureties involved in the business of bail bond surety insurance; and
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(b) provide the results of the investigations described in Subsection (5)(a) to the
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[insurance] commissioner with recommendations for:
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(i) action; and
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(ii) any appropriate sanctions.
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Section 5.
Section
31A-35-301
is amended to read:
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31A-35-301. The commissioner's authority.
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(1) The commissioner shall:
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(a) make rules as necessary for the administration of this chapter;
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(b) with information as provided by the board, issue or deny [certification] licensure under
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this chapter;
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(c) take action regarding a [certificate] license, including suspension or revocation; and
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(d) maintain and publish a current list of licensed bail bond surety companies and agents.
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(2) The commissioner may establish fees for the issuance, renewal, and reinstatement of
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a bail bond surety company [certificates of authority under] license in accordance with Section
169
63-38-3.2
.
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Section 6.
Section
31A-35-401
is amended to read:
171
31A-35-401. Requirement for license or certificate of authority -- Process -- Fees --
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Limitations.
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(1) (a) A person may not engage in the bail bond surety insurance business [without
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applying for and receiving a certificate of authority issued] unless that person:
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(i) is a bail bond surety company licensed under this chapter[. (b) Bail bond];
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(ii) is a surety [insurers are] insurer that is granted [certificates] a certificate under this
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section in the same manner as other insurers doing business in this state are granted certificates of
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authority under this title[.]; or
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(iii) is a bail bond agent licensed in accordance with this section.
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[(c) Bail] (b) A bail bond surety [companies are granted certificates under this chapter and
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in accordance with rules made by the insurance commissioner] company shall be licensed under
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this chapter as an agency.
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(c) A bail bond agent shall be licensed under Chapter 23 as an agent.
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(2) [An applicant for a certificate] A person applying for a bail bond surety company
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license under this chapter shall submit to the [insurance] commissioner:
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(a) a completed application form as prescribed by the [insurance] commissioner;
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(b) a fee as determined by the [insurance] commissioner [under] in accordance with
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Section
63-38-3.2
; and
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(c) any additional information required by rule.
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(3) Fees required under this section are not refundable.
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(4) Fees collected [under this section] from a bail bond surety company shall be deposited
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in a restricted account created in Section
31A-35-407
.
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(5) (a) A bail bond surety company shall be domiciled in Utah.
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(b) A bail bond agent shall be a resident of Utah.
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(c) A foreign surety insurer that is granted a certificate to issue bail bonds may only issue
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bail bonds through a bail bond surety company licensed under this chapter.
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Section 7.
Section
31A-35-402
is amended to read:
198
31A-35-402. Authority related to bail bonds.
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(1) A bail bond surety [insurance business holding a certificate issued under this chapter
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or Title 31A, Chapter 5, Domestic Stock and Mutual Insurance Corporations, or Title 31A, Chapter
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14, Foreign Insurers,] company may only issue bail bonds [as a bail bond surety].
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[(2) A certificate issued under this chapter shall be in a form prescribed by the
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commissioner and shall state:]
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[(a) the name, address, and telephone number of the licensee;]
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[(b) the date of the license issuance and expiration; and]
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[(c) any other information the commissioner considers necessary.]
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[(3)] (2) A bail bond agent may not execute or issue a bail bond in this state without
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holding a current appointment from a bail bond surety.
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[(4)] (3) A bail bond surety [company] may not allow any person who [does not hold a
210
license under Title 31A, Insurance Code, to solicit or] is not a bail bond agent to engage in the bail
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bond surety business on the [company's] bail bond surety's behalf, except for individuals:
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(a) employed solely for the performance of clerical, stenographic, investigative, or other
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administrative duties [which] that do not require a license [under this chapter; and] as:
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(i) a bail bond surety company; or
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(ii) a bail bond agent; and
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(b) whose compensation is not related to or contingent upon the number of bonds written.
217
Section 8.
Section
31A-35-404
is amended to read:
218
31A-35-404. Minimum financial requirements for bail bond surety company license.
219
(1) (a) A [letter of credit] bail bond surety company that pledges the assets of a letter of
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credit from a Utah depository institution in connection with a judicial proceeding shall maintain
221
an irrevocable letter of credit with a minimum face value of [$250,000] $300,000 assigned to the
222
state from a Utah [financial] depository institution.
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(b) Notwithstanding Subsection (1)(a), a bail bond surety company described in Subsection
224
(1)(a) that is licensed under this chapter as of December 31, 1999, shall maintain an irrevocable
225
letter of credit with a minimum face value of $250,000 assigned to the state from a Utah depository
226
institution.
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(2) (a) A [property] bail bond surety company that pledges personal or real property, or
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both, as security for a bail bond in connection with a judicial proceeding shall maintain:
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[(a)] (i) (A) a current financial statement:
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(I) reviewed by a certified public accountant[,]; and
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(II) showing a net worth of at least [$250,000] $300,000, at least [$50,000] $100,000 of
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which is in liquid assets; or
233
(B) notwithstanding Subsection (2)(a)(i), if the bail bond surety company is licensed under
234
this chapter as of December 31, 1999, a current financial statement:
235
(I) reviewed by a certified public accountant; and
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(II) showing a net worth of at least $250,000, at least $50,000 of which is in liquid assets;
237
[(b)] (ii) a copy of the applicant's federal income tax return for the preceding two years;
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and
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[(c)] (iii) for each parcel of real property owned by the applicant[,] and included in net
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worth calculations:
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(A) a title letter; and
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(B) an appraisal dated not more than two years prior to the date of application.
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(b) For purposes of this Subsection (2), only real or personal property located in Utah may
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be included in the net worth of the bail bond surety company.
245
(3) [An insurance] A bail bond surety company shall maintain a qualifying power of
246
attorney issued by [the applicant's] a surety insurer[. The insurer shall be]:
247
(a) if the bail bond surety company is the agent of the surety insurer; and
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(b) the surety insurer:
249
(i) issues bail bonds;
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[(a) ] (ii) is in good standing in its state of domicile; and
251
[(b) authorized] (iii) is granted a certificate to write bail bonds in Utah.
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(4) The commissioner may revoke the license of a bail bond surety company that fails to
253
maintain the minimum financial requirements required under this section.
254
(5) The commissioner may set by rule the limits on the aggregate amounts of bail bonds
255
issued by a bail bond surety company.
256
Section 9.
Section
31A-35-405
is amended to read:
257
31A-35-405. Issuance of license -- Denial -- Right of appeal.
258
(1) Upon a determination by the board that [the applicant has met] a person applying for
259
a bail bond surety company license meets the requirements for issuance of a [certificate of
260
authority] license under this chapter, the [insurance] commissioner shall issue to [the applicant a]
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that person a bail bond surety company license [in the form of a certificate of authority].
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(2) (a) If the [insurance] commissioner denies an application for a [certificate] bail bond
263
surety company license under this chapter, [he] the commissioner shall provide prompt written
264
notification to the [applicant,] person applying for licensure:
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(i) stating the grounds for denial[. (3) (a) The notification of denial shall inform the
266
applicant that he]; and
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(ii) notifying the person applying for licensure as a bail bond company that:
268
(A) the person is entitled to a hearing if [he] that person wants to contest the denial[,]; and
269
[that he must]
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(B) if the person wants a hearing, the person shall submit the request in writing to the
271
commissioner within 30 days after the issuance of the denial.
272
(b) The hearing described in Subsection (2)(a) shall be scheduled not later than 60 days
273
after the commissioner's receipt of the request.
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(c) The department shall hear the appeal, and may:
275
(i) return the case to the [insurance] commissioner for reconsideration;
276
(ii) modify the commissioner's decision; or
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(iii) reverse the commissioner's decision.
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[(4) Decisions are] (3) A decision under this section is subject to review under Title 63,
279
Chapter 46b, Administrative Procedures Act.
280
Section 10.
Section
31A-35-406
is amended to read:
281
31A-35-406. Renewal and reinstatement.
282
(1) (a) [A certificate of authority may be renewed upon completion and submission of the
283
renewal application and payment of the applicable renewal fee established under Section
63-38-3.2
284
to the department] To renew its license under this chapter, on or before the last day of the month
285
in which the [certificate of authority] license expires[.] a bail bond surety company shall:
286
(i) complete and submit a renewal application to the department; and
287
(ii) pay the department the applicable renewal fee established in accordance with Section
288
63-38-3.2
.
289
(b) [Renewal is due on an annual basis] A bail bond surety company shall renew its license
290
under this chapter annually as established by department rule, regardless of when the [certificate]
291
license is issued.
292
(2) A [certificate of authority] bail bond surety company may renew a bail bond surety
293
company license not renewed under Subsection (1) [may be renewed] within 30 days after the
294
expiration date[, upon payment of] by:
295
(a) submitting a renewal application required by Subsection (1); and
296
(b) paying a late renewal fee established [under] in accordance with Section
63-38-3.2
.
297
(3) A [lapsed certificate of authority may be reinstated ] bail bond surety company may
298
apply for reinstatement of an expired bail bond surety company license between 31 days and six
299
months following the expiration of the [certificate] license under Subsection (1) by:
300
(a) [submission of] submitting the renewal [form] application required by Subsection (1);
301
and
302
(b) [payment of a certificate] paying a license reinstatement fee established [under] in
303
accordance with Section
63-38-3.2
.
304
(4) If a [certificate] bail bond surety company license has been expired for more than six
305
months [ago, the applicant], the person applying for reinstatement of the bail bond surety license
306
shall:
307
(a) submit an application form to the commissioner; and
308
(b) pay the application fee established [under] in accordance with Section
63-38-3.2
.
309
(5) If a [certificate was] bail bond surety company license is suspended, the applicant may
310
not submit an application for a [certificate] bail bond surety company license until [the] after the
311
end of the period of suspension.
312
(6) Fees collected under this section shall be deposited in the restricted account created in
313
Section
31A-35-407
.
314
Section 11.
Section
31A-35-501
is amended to read:
315
31A-35-501. Emergency action regarding a license.
316
(1) If the [insurance] commissioner determines, based on an investigation, that the public
317
health, safety, or welfare requires emergency action, the commissioner may order a summary
318
suspension of a [certificate] bail bond surety company license pending proceedings for revocation
319
or other action.
320
(2) The order described in Subsection (1) shall [state]:
321
(a) state the grounds upon which the summary suspension is issued, including the charges
322
made against the [holder of the certificate] licensee; and
323
(b) [shall] advise the [certificate holder] licensee of the right to an administrative hearing
324
before the commissioner within 60 days after the summary suspension is ordered.
325
Section 12.
Section
31A-35-502
is amended to read:
326
31A-35-502. Notification of violation of chapter.
327
If the commissioner has reason to believe a [certificate holder] person licensed as a bail
328
bond surety company or a bail bond agent has violated this chapter, written notice shall be sent to
329
[the certificate holder] that person, advising [him] the person of:
330
(1) the alleged violation;
331
(2) the commissioner's authority to take action against [the certificate; and] the person's
332
license;
333
(3) the [certificate holder's] person's right to an administrative hearing under Title 63,
334
Chapter 46b, Administrative Procedures Act[,]; and
335
(4) the period of time within which the hearing [must] described in Subsection (3) shall
336
be requested if the person requests a hearing.
337
Section 13.
Section
31A-35-503
is amended to read:
338
31A-35-503. Disciplinary action -- Hearing -- Appeal.
339
(1) Based on information the commissioner receives during a hearing described in Section
340
31A-35-502 regarding a [certificate] person licensed as a bail bond surety company or bail bond
341
agent, the commissioner may:
342
(a) dismiss the complaint if the commissioner finds it is without merit;
343
(b) fix a period and terms of probation best adopted to educate the [certificate holder]
344
person;
345
(c) place the [certificate] license on suspension for a period of not more than 12 months;
346
or
347
(d) revoke the [certificate] license.
348
(2) The commissioner shall advise the [certificate holder] person described in Subsection
349
(1) in writing of:
350
(a) [of his] the commissioner's findings based on the hearing [promptly and in writing];
351
and
352
(b) [of the certificate holder's] the person's rights of appeal under this chapter.
353
(3) [If] (a) Unless the conditions of Subsection (3)(b) are met, if a bail bond surety
354
company license is suspended or revoked under this chapter, [no] a member [or], employee [of that
355
company, or], officer, or director of that corporation may [receive a certificate under this chapter]
356
not:
357
(i) be licensed as a bail bond surety company or bail bond agent; or
358
(ii) be designated in any [certificate] license to exercise authority under this chapter during
359
the period of the suspension or revocation[, unless].
360
(b) Subsection (3)(a) does not apply if the [insurance] commissioner determines upon
361
substantial evidence that the member, employee, officer, or director:
362
(i) was not personally at fault; and
363
(ii) did not acquiesce in the matter on account of which the [certificate] license was
364
suspended or revoked.
365
Section 14.
Section
31A-35-602
is amended to read:
366
31A-35-602. Place of business -- Records to be kept there.
367
(1) (a) Every bail bond surety company shall have and maintain in this state a place of
368
business:
369
(i) accessible to the public[,]; and
370
(ii) where the [certificate holder] bail bond surety company principally conducts
371
transactions authorized by [the certificate] its bail bond surety company license.
372
(b) The address of [this location] the place of business described in Subsection (1)(a) shall
373
appear upon:
374
(i) the application for a [certificate] bail bond surety company license; and [upon the
375
certificate]
376
(ii) the bail bond surety company license issued under this chapter[. The certificate
377
holder].
378
(c) A bail bond surety company shall notify the [insurance] commissioner of any change
379
in [this] the address required by this Subsection (1) within 20 days after the change.
380
[(c)] (d) This section does not prohibit [the certificate holder] a bail bond surety company
381
from maintaining the place of business required under this section in the [certificate holder's]
382
licensee's residence, if [it] the residence is in Utah.
383
(2) The bail bond surety company shall keep at [its] the place of business described in
384
Subsection (1)(a) the records required under Section
31A-35-604
.
385
Section 15.
Section
31A-35-603
is amended to read:
386
31A-35-603. Collateral security.
387
(1) A bail bond agent may accept collateral security in connection with a bail transaction,
388
if the collateral security is reasonable in relation to the face amount of the bail bond.
389
(2) (a) The collateral security [must] described in Subsection (1) shall be received by the
390
bail bond agent in [his] the bail bond agent's fiduciary capacity.
391
(b) Before any judgment of forfeiture of bail, the bail bond agent shall keep the collateral
392
separate and apart from any other funds or assets of the licensee.
393
(3) (a) Any collateral that is deposited with a bail bond agent or bail bond surety
394
[company] shall be returned to the person who deposited it within ten days after the return is
395
requested by the person who deposited it[,] if:
396
(i) the bail bond has been exonerated; and
397
(ii) all fees owed to the bail bond agent or bail bond surety have been paid.
398
(b) A certified copy of the minute order from the court[,] stating the bail or undertaking
399
was ordered exonerated is prima facie evidence of exoneration or termination of liability.
400
(4) (a) If a bail bond agent accepts collateral, [he] the bail bond agent shall give a written
401
receipt for the collateral. [This]
402
(b) The receipt [must] required by Subsection (4)(a) shall include a fully detailed account
403
of the collateral received.
404
(5) Upon return of collateral to the person who posted it, if any amount has been deducted
405
by the bail bond surety or bail bond agent as expense, the bail bond surety or bail bond agent shall:
406
(a) include with the returned collateral an itemized statement of all expenses deducted
407
from the collateral[,]; and [shall]
408
(b) maintain a copy of the statement required by Subsection (5)(a) in [his] the records of
409
the bail bond surety or bail bond agent.
410
(6) If the bail bond secured by the collateral is forfeited and the bail bond agent or bail
411
bond surety [company] retains possession of the collateral in payment of the forfeiture or otherwise
412
disposes of the collateral, the [party] person retaining possession or disposing of the property shall
413
maintain a written record of the collateral, including any disposition.
414
(7) (a) If a document [which] that conveys title to real property is used as collateral in a
415
bail bond transaction, the document shall state on its face that it is executed as part of a security
416
transaction.
417
(b) If the document described in Subsection (7)(a) is recorded, the bail bond agent or the
418
bail bond surety [company] shall:
419
(i) execute a reconveyance of the property, executed so that the reconveyance can be
420
recorded; and
421
(ii) promptly deliver the reconveyance document to:
422
(A) the person executing the original conveyance[,]; or [to his]
423
(B) the heirs, legal representative, or successor in interest of the person described in
424
Subsection (7)(b)(ii)(A).
425
Section 16.
Section
31A-35-604
is amended to read:
426
31A-35-604. Records.
427
(1) [Every] A bail bond agent shall maintain at [his] the bail bond agent's place of
428
business:
429
(a) records of all bail bonds [he has executed or countersigned] the bail bond agent
430
executes or countersigns, so the public may obtain all necessary information concerning those bail
431
bonds for at least one year after the liability of the bail bond surety has been terminated; and
432
(b) any additional information the [insurance] commissioner may reasonably require by
433
rule.
434
(2) Records required to be maintained under Subsection (1) shall be available for
435
examination by the commissioner or [his] the commissioner's representatives during regular
436
business hours.
437
(3) The bail bond surety company shall maintain for three years after receipt all records
438
[forwarded to it by its bail bond agents] of any bail bond executed or countersigned by a bail bond
439
agent appointed by the bail bond surety company.
440
Section 17.
Section
31A-35-607
is amended to read:
441
31A-35-607. Filing of forms -- Department maintains files.
442
(1) In accordance with Section
31A-21-201
, each [certificate holder] bail bond surety shall
443
file with the [insurance] commissioner a sample copy of each form the [certificate holder] bail
444
bond surety uses in [his] the bail bond surety's bail bond surety business.
445
(2) [These forms] A form described in Subsection (2) shall be filed:
446
[(a) within 30 days of the effective date of this chapter; and]
447
[(b) when any form under Subsection (1) is changed or put into use.]
448
(a) before the form is first used by the bail bond surety; and
449
(b) if the form is changed after it is filed under Subsection (2)(a).
450
(3) (a) The department shall maintain and make available for public inspection a file
451
regarding each bail bond surety.
452
(b) The forms required to be filed under this section shall be maintained in the submitting
453
bail bond surety's file.
454
Section 18.
Section
31A-35-608
is amended to read:
455
31A-35-608. Premiums and authorized charges.
456
(1) A bail bond surety or bail bond agent may not, in any bail transaction or in connection
457
with that transaction, directly or indirectly, charge or collect money or other valuable consideration
458
from any person except to:
459
(a) pay the premium on the bail at the rates established by the bail bond surety [company];
460
(b) provide collateral;
461
(c) reimburse himself for actual expenses, as described in Subsection (2), incurred in
462
connection with the bail bond transaction; or
463
(d) to reimburse himself, or to establish a right of action against the principal or any
464
indemnitor, for actual expenses the bail bond surety or bail bond agent incurred:
465
(i) in good faith; and
466
(ii) which were by reason of breach by the defendant of any of the terms of the written
467
agreement under which the undertaking of bail or bail bond was written.
468
(2) (a) [If a bail bond agent did not establish a written agreement, or there is only an
469
incomplete writing, the] A bail bond surety may bring an action in a court of law to enforce its
470
equitable rights against the principal and [his] the principal's indemnitors in exoneration if:
471
(i) a bail bond agent did not establish a written agreement; or
472
(ii) there is only an incomplete writing.
473
(b) Reimbursement claimed under this Subsection (2) may not exceed the sum of:
474
(i) the principal sum of the bail bond or undertaking[, plus]; and
475
(ii) any reasonable expenses that:
476
(A) are verified by receipt [and];
477
(B) in total do not amount to more than the principal sum of the bail bond or
478
undertaking[,]; and
479
(C) incurred in good faith by the bail bond surety, its agents, and employees by reason of
480
the principal's breach.
481
(3) This section does not affect or impede the right of a bail bond agent to execute
482
undertaking of bail on behalf of a nonresident agent of the bail bond surety [he] the bail bond agent
483
represents.
484
Section 19.
Section
31A-35-701
is amended to read:
485
31A-35-701. Prohibited acts.
486
(1) A bail bond agent or bail bond surety may not:
487
(a) solicit business in or about:
488
(i) any place where persons in the custody of the state or any local law enforcement or
489
correctional agency are confined[,]; or [in or about]
490
(ii) any court;
491
(b) pay a fee or rebate or give or promise anything of value to any person in order to secure
492
a settlement, compromise, remission, or reduction of the amount of any undertaking or bail bond;
493
(c) pay a fee or rebate or give anything of value to an attorney in regard to any bail bond
494
matter, except payment for legal services actually rendered for the bail bond agent or bail bond
495
surety;
496
(d) pay a fee or rebate or give or promise anything of value to the principal or anyone in
497
[his] the principal's behalf; or
498
(e) engage in any other act prohibited by the commissioner by rule.
499
(2) The following persons may not act as bail bond agents and may not, directly or
500
indirectly, receive any benefits from the execution of any bail bond:
501
(a) a person employed at any jail, correctional facility, or other facility used for the
502
incarceration of persons;
503
(b) a [law enforcement] peace officer;
504
(c) a judge; and
505
[(d) a sheriff, deputy sheriff, or constable; and]
506
[(e)] (d) a trustee or prisoner incarcerated in any jail, correctional facility, or other facility
507
used for the incarceration of persons.
508
(3) A bail bond agent may not:
509
(a) sign or countersign in blank any bail bond[,]; or
510
(b) give the power of attorney to, or otherwise authorize[,] anyone to, countersign in the
511
bail bond agent's name to [bonds] a bail bond.
512
(4) A bail bond agent may not advertise or hold himself out to be a bail bond surety.
513
(5) The following persons or members of their immediate families may not solicit business
514
on behalf of a bail bond surety or bail bond agent:
515
(a) a person employed at any jail, correctional facility, or other facility used for the
516
incarceration of persons;
517
(b) a [law enforcement] peace officer;
518
(c) a judge; and
519
[(d) a sheriff, deputy sheriff, or constable; and]
520
[(e)] (d) a trustee or prisoner incarcerated in any jail, correctional facility, or other facility
521
used for the incarceration of persons.
522
Section 20.
Section
31A-35-702
is amended to read:
523
31A-35-702. Early surrender without cause.
524
(1) [If] The bail or bail bond premium shall be returned in full if a bail bond agent without
525
good cause surrenders a defendant to custody before:
526
(a) the time specified in the undertaking of bail or the bail bond for the appearance of the
527
defendant[,]; or [before]
528
(b) any other occasion where the presence of the defendant in court is lawfully required[,
529
the bail or bail bond premium shall be returned in full].
530
(2) As used in this section, "good cause" includes:
531
[(a) information received from a source credible under the circumstances that the
532
defendant intends to fail to appear before the appropriate court at the date and time prescribed;]
533
[(b)] (a) the defendant providing materially false information on the application for bail
534
or a bail bond;
535
[(c)] (b) the court's increasing the amount of bail beyond sound underwriting criteria
536
employed by:
537
(i) the bail bond agent; or
538
(ii) the bail bond surety;
539
[(d)] (c) a material and detrimental change in the collateral posted by:
540
(i) the defendant; or [one]
541
(ii) a person acting on [his] the defendant's behalf;
542
[(e)] (d) the defendant changing [his] the defendant's address or telephone number without
543
giving reasonable notice to:
544
(i) the bail bond agent; or
545
(ii) the bail bond surety;
546
[(f)] (e) the defendant commits another crime, other than a minor traffic violation, as
547
defined by department rule, while on bail;
548
[(g)] (f) failure by the defendant to appear in court at the appointed time; or
549
[(h)] (g) a finding of guilt against the defendant by a court of competent jurisdiction.
550
Section 21.
Section
31A-35-703
is amended to read:
551
31A-35-703. Disciplinary action.
552
(1) [Persons or organizations] A person found to be in violation of the statutes or rules
553
governing the conduct of bail bond agents and bail bond sureties under this chapter [are] is subject
554
to:
555
(a) disciplinary action by the [insurance] commissioner against [the] that person's:
556
(i) license, if the person is a bail bond surety company or bail bond agent; or
557
(ii) certificate, if the person is a surety insurer; and
558
(b) imposition of civil penalties, as authorized under Title 31A, Chapter 2, Administration
559
of the Insurance Laws.
560
(2) Penalties collected under this section shall be deposited in the restricted account
561
created in Section
31A-35-407
.
562
Section 22.
Section
31A-35-704
is amended to read:
563
31A-35-704. Submission of bail bond sureties and agents to jurisdiction of court.
564
By applying for and receiving [certification under] a license or certificate to engage in the
565
bail bond surety insurance business in accordance with this chapter, a bail bond surety [insurers,
566
companies, and agents] or bail bond agent:
567
(1) [submit] submits to the jurisdiction of the court;
568
(2) irrevocably [appoint] appoints the clerk of the court as agent upon whom any papers
569
affecting the bail bond [surety insurer, company, or ] surety's or bail bond agent's liability on the
570
undertaking may be served; and
571
(3) [acknowledge] acknowledges that liability may be enforced on motion and upon notice
572
as the court may require, without the necessity of an independent action.
573
Section 23.
Section
77-20-8.5
is amended to read:
574
77-20-8.5. Sureties -- Surrender of defendant -- Arrest of defendant.
575
(1) (a) [The sureties] Sureties may at any time prior to a forfeiture of their bail surrender
576
the defendant and obtain exoneration of [their bail by filing written requests at the time of the
577
surrender] bail, by notifying the clerk of the court in which the bail was posted of the defendant's
578
surrender h
AND REQUESTING EXONERATION
h . Notification will be done immediately following
578a
the surrender by surface mail,
579
electronic mail, or fax.
580
(b) To effect surrender, [certified duplicate copies of the undertaking shall] a certified copy
581
of the surety's undertaking from the court in which it was posted, or, a copy of the bail agreement
582
with the defendant shall be delivered to [a peace officer] the on-duty jailer, who [shall] will detain
583
the defendant in [his] the on-duty jailer's custody as upon a commitment, and shall in writing
584
acknowledge the surrender upon [one] the copy of the undertaking or bail agreement. [This] The
585
certified copy of the undertaking or copy of the bail agreement upon which the acknowledgment
586
of surrender is endorsed shall be filed with the court. The court may then, upon proper application,
587
order the undertaking exonerated and may order a refund of any paid premium, or part of a
588
premium, as it finds just.
589
(2) For the purpose of surrendering the defendant, the sureties may:
590
(a) arrest [him] the defendant:
591
(i) at any time before [they are] the defendant is finally exonerated; and
592
(ii) at any place within the state; and
593
(b) surrender the defendant to any correctional facility in Utah.
594
(3) A surety acting under this section is subject to [the provisions of] Title 53, Chapter [10]
595
11, Bail Bond Recovery Act.
596
Section 24.
Section
77-20-10
is amended to read:
597
77-20-10. Grounds for detaining defendant while appealing his conviction --
598
Conditions for release while on appeal.
599
(1) The court shall order that a defendant who has been found guilty of an offense and
600
sentenced to a term of imprisonment in jail or prison, and who has filed an appeal or a petition for
601
a writ of certiorari, be detained, unless the court finds:
602
(a) the appeal raises a substantial question of law or fact likely to result in:
603
(i) reversal;
604
(ii) an order for a new trial; or
605
(iii) a sentence that does not include a term of imprisonment in jail or prison;
606
(b) the appeal is not for the purpose of delay; and
607
(c) by clear and convincing evidence presented by the defendant that [he] the defendant
608
is not likely to flee the jurisdiction of the court, and will not pose a danger to the physical,
609
psychological, or financial and economic safety or well-being of any other person or the
610
community if released.
611
(2) If the court makes a finding under Subsection (1) [which] that justifies not detaining
612
the defendant, the court shall order the release of the defendant, subject to conditions that result
613
in the least restrictive condition or combination of conditions that the court determines will
614
reasonably assure the appearance of the person as required and the safety of any other person and
615
the community. The conditions may include that the defendant:
616
(a) post appropriate bail;
617
(b) execute a bail bond with a bail bond surety under Title 31A, Chapter 35, Bail Bond
618
Sureties and Agents Act, in an amount necessary to assure the appearance of the defendant as
619
required;
620
(c) (i) execute a written agreement to forfeit, upon failing to appear as required, designated
621
property, including money, as is reasonably necessary to assure the appearance of the defendant;
622
and
623
(ii) post with the court indicia of ownership of the property or a percentage of the money
624
as the court may specify;
625
[(b)] (d) not commit a federal, state, or local crime during the period of release;
626
[(c)] (e) remain in the custody of a designated person who agrees to assume supervision
627
of the defendant and who agrees to report any violation of a release condition to the court, if the
628
designated person is reasonably able to assure the court that the defendant will appear as required
629
and will not pose a danger to the safety of any other person or the community;
630
[(d)] (f) maintain employment, or if unemployed, actively seek employment;
631
[(e)] (g) maintain or commence an educational program;
632
[(f)] (h) abide by specified restrictions on personal associations, place of abode, or travel;
633
[(g)] (i) avoid all contact with the victims of the offense and with any witnesses who
634
testified against the defendant or potential witnesses who may testify concerning the offense if the
635
appeal results in a reversal or an order for a new trial;
636
[(h)] (j) report on a regular basis to a designated law enforcement agency, pretrial services
637
agency, or other designated agency;
638
[(i)] (k) comply with a specified curfew;
639
[(j)] (l) not possess a firearm, destructive device, or other dangerous weapon;
640
[(k)] (m) not use alcohol, or any narcotic drug or other controlled substances except as
641
prescribed by a licensed medical practitioner;
642
[(l)] (n) undergo available medical, psychological, or psychiatric treatment, including
643
treatment for drug or alcohol dependency, and remain under the supervision of or in a specified
644
institution if required for that purpose;
645
[(m) execute an agreement to forfeit, upon failing to appear as required, designated
646
property, including money, as is reasonably necessary to assure the appearance of the defendant,
647
and post with the court indicia of ownership of the property or a percentage of the money as the
648
court may specify;]
649
[(n) execute a bail bond with solvent sureties in an amount necessary to assure the
650
appearance of the defendant as required;]
651
(o) return to custody for specified hours following release for employment, schooling, or
652
other limited purposes;
653
(p) satisfy any other condition that is reasonably necessary to assure the appearance of the
654
defendant as required and to assure the safety of any other person and the community; and
655
(q) if convicted of committing a sexual offense or an assault or other offense involving
656
violence against a child 17 years of age or younger, is limited or denied access to any location or
657
occupation where children are, including but not limited to:
658
(i) any residence where children are on the premises;
659
(ii) activities, including organized activities, in which children are involved; and
660
(iii) locations where children congregate, or where a reasonable person should know that
661
children congregate.
662
(3) The court may, in its discretion, amend an order granting release to impose additional
663
or different conditions of release.
664
Section 25.
Section
77-20b-101
is amended to read:
665
77-20b-101. Entry of nonappearance -- Notice to surety -- Release of surety on
666
failure of timely notice.
667
(1) If a defendant who has posted bail fails to appear before the appropriate court when
668
required and the court issues a bench warrant or directs that the surety be given notice of the
669
nonappearance, the clerk of the court shall:
670
(a) mail notice of nonappearance h [
with a court certified copy of the undertaking of bai
l] h
670a
by
671
certified mail, return receipt requested, within 30 days to the address of the surety who posted the
672
bond; and
673
(b) deliver a copy of the notice sent under Subsection (1)(a) to the prosecutor's office at
674
the same time notice is sent under Subsection (1)(a).
675
(2) If notice is not provided in accordance with Subsection (1)(a), the prosecutor may mail
676
notice of nonappearance by certified mail, return receipt requested, to the address of the surety
677
within seven days after the end of the 30-day period under Subsection (1)(a).
678
(3) If notice of nonappearance is not mailed to a surety, other than the defendant, in
679
accordance with Subsection (1) or (2), the surety is relieved of further obligation under the bond
680
if[: (a)] the surety's current name and address are on the bail bond in the court's file[; and].
681
[(b) the surety does not otherwise have actual notice of the defendant's failure to appear.]
682
(4) (a) A bond ordered forfeited by h [
a magistrate of
] h the court may not be reinstated
682a
without
683
the mutual agreement of the surety and the court.
684
(b) If the defendant is arrested pursuant to a failure to appear on the original charges and
685
then released for any reason, the original bond shall be exonerated.
686
Section 26.
Section
77-20b-102
is amended to read:
687
77-20b-102. Time for bringing defendant to court.
688
(1) If notice of nonappearance has been mailed to a surety under Section
77-20b-101
, the
689
surety may bring the defendant before the court or surrender the defendant into the custody of a
690
county sheriff within the state within six months of the date of nonappearance, during which time
691
a forfeiture action on the bond may not be brought.
692
(2) A surety may request an extension of the six-month time period in Subsection (1), if
693
the surety within that time:
694
(a) files a motion for extension with the court; and
695
(b) mails the motion for extension and a notice of hearing on the motion to the prosecutor.
696
(3) The court may extend the six-month time in Subsection (1) for not more than 60 days,
697
if the surety has complied with Subsection (2) and the court finds good cause.
698
Section 27.
Section
77-20b-103
is amended to read:
699
77-20b-103. Defendant in custody -- Notice to prosecutor.
700
(1) If a surety is unable to bring a defendant to the court because the defendant is and will
701
be in the custody of authorities of another jurisdiction [for the duration of the six-month period
702
under Section
77-20b-102
], the surety shall notify the court and the prosecutor and provide the
703
name, address, and telephone number of the custodial authority.
704
(2) If the defendant is subject to extradition or other means by which the state can return
705
the defendant to the court's custody, and the surety gives notice under Subsection (1), the surety's
706
bond shall be exonerated:
707
(a) if the prosecutor elects in writing not to extradite the defendant immediately; and
708
(b) if the prosecutor elects in writing to extradite the defendant, to the extent the bond
709
exceeds the reasonable, actual, or estimated costs to extradite and return the defendant to the
710
court's custody, upon the occurrence of the earlier of:
711
[(a)] (i) the prosecuting attorney's lodging a detainer on the defendant; or
712
[(b)] (ii) 60 days after the surety gives notice to the prosecutor under Subsection (1), if the
713
defendant remains in custody of the same authority during that 60-day period.
714
Section 28.
Section
77-20b-104
is amended to read:
715
77-20b-104. Forfeiture of bail.
716
(1) If a surety fails to bring the defendant before the court within the time provided in
717
Section
77-20b-102
, the prosecuting attorney may request the forfeiture of the bail by:
718
(a) filing a motion for bail forfeiture with the court, supported by proof of notice to the
719
surety of the defendant's nonappearance; and
720
(b) mailing a copy of the motion to the surety.
721
(2) A court shall enter judgment of bail forfeiture without further notice if it finds by a
722
preponderance of the evidence:
723
(a) the defendant failed to appear as required;
724
(b) the surety was given notice of the defendant's nonappearance in accordance with
725
Section
77-20b-101
;
726
(c) the surety failed to bring the defendant to the court within the six-month period under
727
Section
77-20b-102
; and
728
(d) the prosecutor has complied with the notice requirements under Subsection (1).
729
(3) If the surety shows by a preponderance of the evidence that it has failed to bring the
730
defendant before the court because the defendant is deceased through no act of the surety, the court
731
may not enter judgment of bail forfeiture.
732
(4) The amount of bail forfeited is the face amount of the bail bond, but if the defendant
733
is in the custody of another jurisdiction and the state extradites or intends to extradite the
734
defendant, the court h [
[
] may [
]
] [
shall
] h reduce the amount forfeited to the actual or estimated
734a
costs of
735
returning the defendant to the court's jurisdiction. A judgment under this Subsection (4) shall:
736
(a) identify the surety against whom judgment is granted;
737
(b) specify the amount of bail forfeited;
738
(c) grant the forfeited bail to the prosecuting entity; and
739
(d) be docketed by the clerk of the court in the civil judgment docket.
740
(5) A prosecutor may immediately commence collection proceedings to execute a
741
judgment of bond forfeiture against the [property] assets of the surety.
742
Section 29. Repealer.
743
This act repeals:
744
Section 77-20-6, Release on approval of undertaking.
Legislative Review Note
as of 2-9-00 11:39 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.