HBA-RBT H.B. 883 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 883 By: Talton Criminal Jurisprudence 3/17/1999Introduced BACKGROUND AND PURPOSE Currently, various bail bond boards interpret the bail bond act differently. There are no specifications regarding what a board may do with respect to suspension or revocation of a license. H.B. 883 revises the authority of local bail bond boards to regulate bail bondsmen and revises the procedure in the event of an appeal of an order of a local bail bond board. This bill also revises the authority of a prosecutor to settle the liability of a bail bondsman. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 550, Acts of the 63rd Legislature, Regular Session, 1973 (Article 2372p-3, V.T.C.S.), as follows: Sec. 1. New title: DECLARATION OF POLICY; APPLICATION. Creates Subsection (a) from existing text. Provides that Sections 2 through 13 and 16 of this Act do not apply in a county with a population of less than 110,000 unless a County Bail Bond Board (board) has been created in that county. Sec. 2. DEFINITIONS. Adds definitions of "agent for a corporate surety," "applicant," "corporate surety," "final judgment of forfeiture," "individual surety," "license holder," and redefines "bond" and "bondsman." Redesignates Subsections (6), (5), (3), (2), and (1), as (3), (4), (5), (6), and (11), respectively. Sec. 3. New title: LICENSING REQUIREMENTS AND ELIGIBILITY. Deletes "requirement" from existing title. Makes conforming and nonsubstantive changes. (a) Prohibits any person from acting as a bondsman in a county unless the bondsman is licensed in that county. Makes conforming changes. (b) Sets forth the criteria for the licensing of individual sureties and corporate sureties. Makes conforming changes. (c) Makes conforming and nonsubstantive changes. Sec. 4. New title: RECORDS AND COLLATERAL ACCOUNT REQUIRED OF LICENSE HOLDER. Deletes "licensees" from existing title. Requires a license holder to maintain a record required by this section at a location convenient to the license holder. Requires the license holder to maintain the record for at least four years after final disposition of the case. Requires an individual licensed under this Act to maintain as trustee a cash collateral account separate from other bank accounts used by that individual for the operation of a bonding business. Provides that the individual must execute a written agreement that describes the conditions under which collateral will be refunded or retained. Requires the individual to deposit cash collateral into the collateral account on the first banking day after the cash is received. Prohibits disbursement of cash from the collateral account for any purpose other than as a refund of the collateral on final disposition of the case or on entry of final judgment of forfeiture. Prohibits retention of cash collateral except in accordance with the written agreement. Makes conforming and nonsubstantive changes. Sec. 5. COUNTY BAIL BOND BOARD. Specifies the makeup of the board and requires it to meet monthly and on the call of the presiding officer, rather than within 60 days after its creation, although its first meeting is required to occur within that period. Prohibits a board from engaging in specified activities designed to limit the activities of specified bondsmen. Requires each fee collected by a board under this Act to be deposited in the county's general fund for use in the administration and enforcement of this Act. Authorizes the board to receive disbursements from the general fund for reasonable expenses incurred in the enforcement of this Act and specifies that members of the board are not entitled to compensation for their service on the board. Makes conforming and nonsubstantive changes. Sec. 6. APPLICATION AND ISSUANCE OF LICENSE. (a) Provides that the bail bondsman application fee is $500. (b) Sets forth the requirements for the contents of an application for a license as an individual surety. (c) Sets forth the requirements for the contents of an application for a license as a corporate surety. (d) Sets forth the requirements for the contents of an application for a license as an agent for a corporate surety. (e) Requires a law enforcement officer designated by the board to take a photograph and a set of fingerprints of each individual applicant. (f) Requires the board to conduct an inquiry to determine whether an individual surety license applicant possesses the financial responsibility required by this Act. (g) Requires the board to hold a hearing following the inquiry. Provides that the hearing must be between 30 and 60 days of the date the applicant files the application. Provides that a license is valid for 24 months after the date of the order approving the application. Requires the board to enter a written order specifying each ground for the denial of a license. Requires each board member present at the hearing to sign the order granting or denying the license. (h) Requires an individual license holder to perfect the license by filing a security deposit on tentative approval of the license application. Provides that the deposit must be filed within 90 days of the tentative approval. Provides that if the security deposit is not timely filed, the tentative approval is rescinded and the applicant must reapply to receive a license. Provides that a security deposit is not required to perfect a corporate surety's license. (i) Sets forth the requirements of the security deposit for an individual surety license or a license for an agent for a corporate surety. (j) Sets forth an alternative for individual surety license perfection. Makes conforming and nonsubstantive changes. Sec. 7. REAPPRAISAL OF REAL PROPERTY. Redesignated from Section 6A. Makes nonsubstantive changes. Sec. 8. INDIVIDUAL AS SURETY. Authorizes a board to temporarily bar an individual surety from executing a bail bond in that board's county under specified conditions. Requires a county officer or employee designated by the board to maintain a list of each individual surety's potential liability on bonds in force, outstanding liability of judgments nisi (judgments not yet final), and outstanding final judgments of forfeiture. Requires the designated officer or employee to notify each officer in the county authorized to accept a bail bond that the officer may not accept a further bond by that individual surety until the surety complies with this section, if the surety exceeds the limits set out in this section or fails to satisfy a final judgment of forfeiture within 30 days. Authorizes a surety to comply with this section by posting additional security or reducing the outstanding potential or judgment nisi liability. Authorizes a surety to increase the ratio limits at any time by posting additional security with the county if the surety's license is in good standing. Sec. 9. New title: CORPORATION AS SURETY; AGENTS FOR CORPORATE SURETY. Redesignated from existing Section 7. (a) Authorizes a board or local official to require further evidence by a corporation of its security, solvency, or credit as a condition for approving a license, a bail bond for which the corporation is surety, or to impose a financial limit on a bail bond for which the corporation is a surety. (b) Requires a corporation to disclose in its power of attorney filed in the office of the county clerk any limit that the corporation imposes on an agent's authority to act for it in that county. Prohibits a board from refusing to issue a license to a corporation or its agent because the corporation has disclosed in the power of attorney a limit on the agent's authority. (c) Provides that each named agent must apply for and be issued a license in that county as an agent for that corporate surety before executing a bail bond. (d) Authorizes a corporate surety to authorize more than one agent to execute bail bonds in a county. Authorizes each agent to do business under an assumed name that is different from another agent of the same corporate surety. Specifies that a corporate surety is not considered to be doing business under an assumed name solely because it has appointed an agent who is using an assumed name in a county. (e) Makes conforming and nonsubstantive changes. (f) Makes conforming and nonsubstantive changes. (g) Authorizes the temporary barring of an agent for a corporate surety if a final judgment of forfeiture on a bond executed by the agent in that county is not paid within 30 days. Provides that an agent's right to execute bonds is restored on payment of that judgment of forfeiture. (h) Prohibits an individual from holding more than one license as an agent for a corporate surety within a county. Redesignates existing Subsections (b)-(c) to (a)-(b) and existing Subsections (d)-(e) to (e)-(f), respectively. Makes conforming and nonsubstantive changes. Sec. 10. EXPIRATION AND RENEWAL OF LICENSE. Redesignated from existing Section 8 and amended as follows. Provides that an applicant for renewal of a license is not required to furnish letters of recommendation or post new security, as the security posted under an original license or a subsequent renewal remains in effect. Requires the board to renew an applicant's license by written order unless the board finds that a legal ground exists for refusing to renew the license. Requires the board to state in its written order any legal ground which the board finds exists for refusing to renew the license. Provides that the renewal license must show on its face the license number and expiration date. Authorizes a license holder who fails to timely apply for renewal to apply for a new license if the license holder complies with the requirements for an original license, including posting security. Provides that the security posted on the previous license applies only to a bond issued under the previous license. Makes conforming and nonsubstantive changes. Sec. 11. New title: REFUSAL, SUSPENSION, AND REVOCATION OF A LICENSE. Deletes "licenses" from existing title. Redesignated from existing Section 9. Removes the authority for a board to investigate the actions and records of a license holder on its own motion. Requires the board to investigate complaints and authorizes the board to investigate upon written request of a court in the county the records and actions of a license holder. Authorizes the board to refuse to issue or renew, suspend, or revoke a license on a written finding that the license holder during the preceding four years engaged in specified improper actions, or during the preceding 10 years, was convicted under the laws of this state, another state, or the United States of a misdemeanor involving moral turpitude or of a felony. Makes conforming and nonsubstantive changes. Sec. 12. PROCEDURE FOR SUSPENSION OR REVOCATION OF LICENSE. Redesignated from existing Section 10 and amended as follows: (a) Makes conforming and nonsubstantive changes. (b) Makes conforming and nonsubstantive changes. (c) Provides that a notice of hearing to suspend or revoke a license must include a copy of the sworn complaint or written request by a court. (d) Makes conforming and nonsubstantive changes. (e) Prohibits a hearing under this section from being closed to the public. (f) Makes conforming and nonsubstantive changes. (g) Prohibits a board from revoking or suspending the license of an individual surety or agent for a corporate surety who is temporarily barred from executing a bond in the county under Section 8 or 9B of this Act. Prohibits the license holder from posting an additional bond in the county while temporarily barred. Provides that a hearing under this section is not required to temporarily bar a license holder under Section 8 or 9 of this Act. (h) Prohibits a license from being suspended or revoked without a hearing under this section and the presentation of evidence sufficient to show by a preponderance of the evidence a violation, as alleged in the notice to the license holder of Section 11(b) of this Act. (i) Authorizes the board to vote on whether to suspend or revoke a license after a hearing. Provides that before a vote is taken a board member must move to suspend or revoke the license and the motion must state the grounds for that proposed suspension or revocation. Requires the board to vote by roll call if the motion is seconded. Requires the board to enter a written order specifying the grounds for suspension or revocation if the motion passes. Requires each board member present at the hearing who voted for the motion to sign the order. Deletes existing Subsection (f), requiring the board immediately to suspend the license, if the licensee fails to maintain the security deposit at the proper ratio under existing Section 6(g). Makes conforming and nonsubstantive changes. Sec. 13. COURT REVIEW. Redesignated from existing Section 11 and amended as follows. Authorizes the filing of an appeal by filing a petition in Travis County as well as in the district court of the county in which the license was issued or refused. Provides that an original or renewal license approved by the district court after an appeal expires 24 months after the date of the court's final judgment. Provides that a board order is not stayed by filing an appeal, but authorizes the district court to enjoin a board order for good cause. Authorizes the district court to award attorney's fees and costs to an applicant or license holder who prevails on appeal. Authorizes an applicant or license holder to file a declaratory judgment action to determine the validity of a board rule. Provides that the action must be filed in a district court in the county in which the application is pending or the license was issued, or in a district court in Travis County. Authorizes the district court to award attorney's fees and costs to the prevailing party. Authorizes service on a board's presiding officer for a court proceeding under this section. Sec. 14. New title: SURRENDER OF PRINCIPAL BY THE SURETY. Redesignated from existing Section 12. Authorizes surrender of a principal without the written permission of the judge having jurisdiction of the case after the person who executed the bail bond has executed a sworn affidavit. Requires the clerk of the court immediately to issue a capias warrant (arrest warrant) that authorizes a peace officer, private security officer, or a private investigator licensed in this state to arrest and return the principal to the custody of the sheriff of the county in which the cause is pending upon the filing of the sworn affidavit. Authorizes the principal to file a written motion requesting a hearing to determine whether the surrender is without reasonable cause. Authorizes the court to return up to one half, rather than all or a part of the fees paid as a condition for making the bail bond to the principal if the court finds that the surrender was without reasonable cause. Sec. 15. New title: TERMINATION AND SETTLEMENT OF LIABILITY ON BONDS. Deletes "remittitur" and "forfeited" from existing title. Redesignated from existing Section 13. Provides that the surety on an appearance bond in a criminal case is not liable for the bond on dismissal, acquittal, or finding of guilt on a charge made the basis of the bond. Prohibits a court from requiring a surety to continue as a surety during an appeal of a case. Provides that if a case is appealed without the surety's approval, the surety is discharged from liability on the bond. Provides that a principal continues to have the right to an appeal bond. Authorizes an attorney for the state to settle the liability of a principal and a surety on the bond for an amount less than that stated in the bond before a final judgement on a forfeiture of an appearance bond in a criminal case. Requires the attorney for the state to set the settlement in an amount that the attorney considers to be reasonable in light of the facts and circumstances of the case. Sec. 16. New title: ACCEPTANCE OF BONDS. Deletes "approval" and "bond" from existing title. Redesignated from existing Section 14. Prohibits a county officer from refusing to accept a bail bond in legally sufficient form that has been executed by a license holder after perfection of a license issued by the board and while the license is in effect in a county. Prohibits a county officer from requiring a license holder to be physically present to post a bail bond with that officer. Authorizes the officer or board by local rule to require a license holder to designate in writing employees authorized to deliver a bond to the officer and may require that a designated employee display photo identification in a form acceptable to the officer or board. Deletes existing Section 14A. Sec. 17. ACTS SUBJECT TO PENALTY. Redesignated from existing Section 15 and amended as follows. Authorizes a county to display a list of approved bondsmen for that county in any place in which a prisoner is confined. Prohibits a person from placing an advertisement for a bail bondsman or a device that dispenses a bail bond in a detention facility. Defines "detention facility." Deletes existing language requiring the bondsman or agent to keep a duplicate copy of a receipt issued for the receipt of money or other consideration or thing of value for issuance of a bond or undertaking of a surety obligation. Makes conforming and nonsubstantive changes. SECTION 2. (a) Effective date: September 1, 1999. (b) Makes application of this Act prospective with respect to Section 17, Chapter 550, Acts of the 63rd Legislature, Regular Session, 1973 (Article 2372p-3, V.T.C.S.). (c) Makes application of this Act prospective with respect to Section 10, Chapter 550, Acts of the 63rd Legislature, Regular Session, 1973 (Article 2372p-3, V.T.C.S.). SECTION 3. Emergency clause.