I. Applicable Statutes
A. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 2. SURETIES PART 2. PROFESSIONAL BONDSMEN.
B. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDSAND RECOGNIZANCES ARTICLE 2. SURETIES PART 1. GENERAL PROVISIONS.
C. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 3. PROCEEDINGS FOR FORFEITURE OF BONDS OR RECOGNIZANCES.
II. Licensing Requirements for Agents
A. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 2. SURETIES PART 2. PROFESSIONAL BONDSMEN 17-6-50 Defines "professional bondsmen" and gives requirements for such.
1. Persons who hold themselves out as signers or sureties of bonds for compensation are declared to be professional bondsmen.
2. One who holds himself or herself out as a signer or surety of bonds for compensation who must meet the following qualifications:
a. Is 18 years of age or over;
b. Is a resident of the State of Georgia for at least one year befor making application to write bonds;
c. Is a person of good moral character and has not been convicted of a felony or any crime involving moral turpitude; and
d. Is approved by the sheriff and remains in good standing with respect to all applicable federal, state, and local laws and all rules and regulations established by the sheriff in the county where the bonding business is conducted.
B. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6.BONDS AND RECOGNIZANCES ARTICLE 2. SURETIES PART 2. PROFESSIONAL BONDSMEN 17-6-56 Establishes requirements and registration Bail Recovery Agents.
1. The term "bail recovery agent" means any person who performs services or takes action for the purpose of:
a. apprehending the principal on a bail bond granted in this state or,
b. Capturing a fugitive who has escaped from bail in this state for gratuity, benefit, or compensation.
2. Any sheriff of a county shall require any professional bondsman who is a resident of or doing business in the sheriff's county to register his or her bail recovery agents in that county.
3. A bail recovery agent must be a United States citizen, 25 years of age or older, and must obtain a license pursuant to Code Section 16-11-129.
C. CODE OF GEORGIA TITLE 16. CRIMES AND OFFENSES CHAPTER 11. OFFENSES AGAINST PUBLIC ORDER AND SAFETY ARTICLE 4. DANGEROUS INSTRUMENTALITIES AND PRACTICES PART 3. CARRYING AND POSSESSION OF FIREARMS 16-11-129
This is the same licensing statute for a concealed weapons permit and establishes that No license shall be granted to:
1. Any person under 21 years of age;
2. Any person who is a fugitive from justice or against whom proceedings are pending for any felony, forcible misdemeanor, or violation of Code Section 16-11-126, 16-11-127, or 16-11-128 until such time as the proceedings are adjudicated;
3. Any person who has been convicted of a felony by a court of this state or any other state; by a court of the United States including its territories, possessions, and dominions; or by a court of any foreign nation and has not been pardoned for such felony.
4. Any individual who has been hospitalized as an inpatient in any mental hospital or alcohol or drug treatment center within five years of the date of his application; or
5. Any person, the provisions of paragraph (3) of this subsection notwithstanding, who has been convicted of an offense arising out of the unlawful manufacture, distribution, possession, or use of a controlled substance or other dangerous drug.
III. Notice of Forfeiture
CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 3. PROCEEDINGS FOR FORFEITURE OF BONDS OR RECOGNIZANCES 17-6-70 Gives provisions for when forfeiture occurs.
A. A bond forfeiture occurs at the end of the court day, upon the failure of a principal to appear, of any bond given for the appearance of that person.
B. An appearance bond shall not be forfeited unless the clerk of the court gave the surety at least 72 hours' written notice, exclusive of Saturdays, Sundays, and legal holidays, before the time of the required appearance of the principal. Notice shall not be necessary if the time for appearance is within 72 hours from the time of arrest, provided the time for appearance is stated on the bond, or where the principal is given actual notice in open court.
IV. Allotted Time between Forfeiture Declaration and Payment Due Date
(See above, second paragraph)
V. Forfeiture Defenses
A. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6.BONDS AND RECOGNIZANCES ARTICLE 3. PROCEEDINGS FOR FORFEITURE OF BONDS OR RECOGNIZANCES 17-6-72 Gives conditions, which do not warrant forfeiture. No judgment shall be rendered on a forfeiture of any appearance bond if:
1. It is shown by the written statement of a licensed physician that the principal on the bond was prevented from attending by some mental or physical disability.
2. It is shown that the principal on the bond was prevented from attending because he or she was detained by reason of arrest, sentence, or confinement in a penal institution or jail in the State of Georgia, or so detained in another jurisdiction,
or because he or she was involuntarily confined or detained pursuant to court order in a mental institution in the State of Georgia or in another jurisdiction. (An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement and such notice may be sent from the holding institution by mail or delivered by hand or by facsimile machine).
3. If it is shown that prior to the entry of the judgment on the forfeiture the principal on the bond is in the custody of the sheriff or other responsible law enforcement agency.
4. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement and such notice may be sent from the holding institution by mail or delivered by hand or by facsimile machine.
B. State v. Hightower, 199 Ga. App. 770, 406 S.E.2d 117 (1991). Time for filing. -- is a limited time period for filing and is measured from the surety's payment of judgment on the bond rather than from the apprehension of the principal. This is required even when the principal is found and returned at some time beyond that period.
A. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 3. PROCEEDINGS FOR FORFEITURE OF BONDS OR RECOGNIZANCES 17-6-72 In addition to forfeiture defenses, also establishes extensive and detailed remission procedures.
In cases in where paragraph 3 (above, under #5) are not applicable, and upon application filed within 120 days from the payment of judgment, the court shall order remission under the following conditions:
1. Provided the bond amount has been paid within 120 days after judgment and the delay has not prevented prosecution of the principal and upon application to the court with prior notice to the prosecuting attorney of such application, said court shall direct remission of 95 percent of the bond amount remitted to the surety if:
a. The surety locates the principal in the custody of the sheriff in the jurisdiction where the bond was made or in another jurisdiction causing the return of the principal to the jurisdiction where the bond was made,
b. apprehends, surrenders, or produces the principal, if the apprehension or surrender of the principal was substantially procured or caused by the surety, or,
c. If the location of the principal by the surety caused the adjudication of the principal in the jurisdiction in which the bond was made.
2. If any of the above occurs within two years of the principal's failure to appear, the surety shall be entitled to a refund of 50 percent of the bond amount. The application for 50 percent remission shall be filed no later than 30 days following the expiration of the two-year period following the date of judgment.
3. Remission shall be granted upon condition of the payment of court costs and of the expenses of returning the principal to the jurisdiction by the surety; or if, within 120 days after judgment, the surety surrenders the principal to the sheriff or responsible law enforcement officer, or said surrender has been denied by the sheriff or responsible law enforcement officer, or surety locates the principal in custody in another jurisdiction, the surety shall only be required to pay costs and 5 percent of the face amount of the bond, which amount includes all surcharges.
B. 1976 Op. Att'y Gen. No. U76-28.
No refund where principal surrendered after forfeiture. -- This section provides for the relief of a bondsman from liability prior to the time that he pays the forfeiture to the county. After payment to the county of a final judgment on an appearance bond forfeiture, the bondsman is not entitled to a refund of the forfeiture even though he later surrenders the principal to county authorities.
C. Timing requirements for filing are the same as those under #5(B) above.
VII. Bail Agent’s Arrest Authority
A. A Bail Agent’s arrest authority is implied in -- CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 2. SURETIES PART 2. PROFESSIONAL BONDSMEN 17-6-56 -- which defines a Bail Agent as a person who apprehends a principal on bail bond or who captures a fugitive who has escaped bail.
B. In addition, a 1970 Georgia Attorney General Opinion provides the following:
Bondsman's powers of arrest. -- If the accused refuses to surrender, the bondsman can seize and hold him in order to make delivery. The bondsman's rights include broad powers of pursuit into another state, arrest, and detention. No process is needed, as the bondsman's powers arise, not from the powers of the state, but from the relationship of principal and bondsman (1970 Op. Att'y Gen. No. U70-78).
C. Finally, another 1970 Georgia Attorney General Opinion (1970 Op. Att'y Gen. No.U70-83) distinguishes that a bail agent has right to arrest on an appearance warrant, but may not make an arrest pursuant to a bench warrant.
VIII. Other Noteworthy Provisions
A. CODE OF GEORGIA TITLE 33. INSURANCE CHAPTER 10. ASSETS ANDLIABILITIES 33-10-11 Deals with a requirement of special reserve for certain bonds, including bail bonds.
In lieu of the unearned premium reserve required on surety insurance under subsection (a) of Code Section 33-10-6, the Commissioner may require any surety insurer or limited surety insurer to set up and maintain a reserve on all bail bonds or other single premium bonds without definite expiration data, furnished in judicial proceedings, equal to 25 percent of the total consideration charged for any bonds as are outstanding as of the date of any current financial statement of the insurer.
B. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6.BONDS AND RECOGNIZANCES ARTICLE 1. GENERAL PROVISIONS 17-6-1. Provides that bonds must ultimately be approved by the county sheriff.
For all persons who have been authorized by law or the court to be released on bail, sheriffs and constables shall accept such bail; provided, however, that the sureties tendered and offered on the bond are approved by the sheriff of the county in which the offense was committed.
C. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 2. SURETIES PART 2. PROFESSIONAL BONDSMEN 17-6-51
1. Establishes that professional bondsmen, their agents, or representatives shall not suggest or advise the employment of any attorney to represent a defendant, during or subsequent to the negotiations for the bondsmen to sign the bond.
2. 17-6-52 Establishes that professional bondsmen, their agents, or employees shall not solicit business as bondsmen or loiter about or around jails, places where prisoners are confined, or the courts for the purpose of engaging in or soliciting business as such bondsmen.
In addition, no state or municipal law enforcement officer or keeper or employee of a penal institution may suggest or give advice to any prisoner regarding the services of a professional bondsman to write a criminal bond for the appearance of a prisoner in any court at any time.
3. 17-6-57 Provides extensive notification and registration provisions for out-of-state Bail Recovery Agents with local law enforcement.
4. 17-6-58 Sets forth the penalties for violation of the above section, both for bail recovery agents individually, and for bond companies who employ them.
Further more, subsection (c) establishes that no bail recovery agent shall wear, carry, or display any uniform, badge, shield, card, or other item with any printing, insignia, or emblem that purports to indicate that such bail recovery agent is an employee, officer, or agent of any state or federal government or any political subdivision of any state or federal government. A violation of this subsection shall be punished upon conviction as a felony punishable by imprisonment for not less than one nor more than five years, or a fine of not more than $10,000.00, or both.
5. And, subsection (d) provides that a bail recovery agent who enters the wrong property, causes damage to said property, or causes injury to anyone thereon is liable for all damages.
D. CODE OF GEORGIA TITLE 17. CRIMINAL PROCEDURE CHAPTER 6. BONDS AND RECOGNIZANCES ARTICLE 2. SURETIES PART 1. GENERAL PROVISIONS 17-6-30 Sets forth provisions governing the receiving of fees by sureties.
1. Sureties on criminal bonds in any court shall not charge or receive more than 12 percent of the principal amount of bonds set in the amount of $10,000.00 or less and shall not charge or receive more than 15 percent of the principal amount of bonds set in an amount in excess of $10,000.00 as compensation from defendants or from anyone acting for defendants.
2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.
IX. Noteworthy State Appellate Decisions
A. AMERICAN DRUGGISTS' INSURANCE COMPANY v. HARRIS. No. 71354. Court of Appeals of Georgia. Jan. 8, 1986. The case deals with whether a bail bond company has standing to seek for remission after a final judgement has been entered.
1. Ronald Epperson was arrested in May 1983 and indicted on charges of trafficking in cocaine. In June 1983 Epperson as principal and appellant American Druggists' Insurance Co. as surety executed an appearance bond for $225,000. Epperson failed to appear when his trial was called. The following March 23 a judgment was entered against the surety and Epperson as principal, forfeiting the bond. Epperson was subsequently arrested in Florida and was extradited to Decatur County, Georgia, where in November 1984 he pled guilty as charged and was sentenced to prison. By a Consent Order, the penal sum of the bond was paid into the registry of the Superior Court pending resolution of the appeals process. The Georgia Supreme Court dismissed Epperson's appeal, and in December 1984 the surety filed an application for remission of the bond forfeiture. After a hearing, the trial court denied the application, holding that the surety had no standing at law or equity to reclaim any portion of the judgment.
2. The court holds that after a Final Judgment has been entered against the surety in a Bond Forfeiture Hearing and the Judgment has been satisfied by the payment of funds, the surety has no standing either in law or equity to reclaim any portion of the funds paid over to satisfy the Judgment.
B. BENNETT v. The STATE. No. 66443. Court of Appeals . Nov. 29 1983. This case with use of deadly or excessive force by a bail recovery agent, and what the standard is for determining reasonable use of force; also whether apprehension of a principal constitutes an "arrest."
1. Bennett was a bail recovery agent for a bondsman and was asked to apprehend Charles Brannon after Brannon failed to appear for trial on several traffic offenses. In effecting Brannon's apprehension, appellant went to the Brannon home where he fired a shot in the backyard, kicked in the front door when Brannon ran inside, and beat Brannon on the head and face with a pistol.
2. Bennett contended the trial court erred by charging the jury that if a bondsman or his agent uses deadly force in seizing an arrestee, "then, such constitutes an illegal arrest, or illegal seizure." Bennett argues that a bondsman or his agent who apprehends a principal on the bond is not making an arrest and thus, if he uses unreasonable force it does not constitute an "illegal arrest" or an "illegal seizure."
3. The court disagrees. The court notes that Georgia appellate courts have held that an arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained. Caito v. State, 130 Ga.App. 831, 833(1), 204 S.E.2d 765 (1974); Collier v. State, 244 Ga. 553, 561, 261 S.E.2d 364 (1979). The actions of a surety on a bail bond returning his principal to custody fall within this definition of arrest, and other authorities also consider the apprehension of a principal by the surety on a bail bond as an arrest.
4. As to the amount of force a bail bondsman or his agent may use in arresting his principal, the court finds no state or federal cases dealing with this specific issue and, therefore, looks to the rules relating to arrest by law enforcement officers since a bail bondsman, should have no greater right to the use of force than a law enforcement officer can use in making an arrest.
5. A law enforcement officer can use no more force than is reasonably necessary under the circumstances, and cannot use violence disproportionate to the resistance offered. In the instant case Brannon was being arrested for failure to appear on a DUI charge, a misdemeanor (§OCGA 40-6-391(c) (Code Ann. § 68A-902)), and was not resisting arrest at the time Bennett started beating Brannon on the head and face with a pistol with such force that the pistol discharged. Since Bennett was not entitled to use deadly force in effecting Brannon's arrest (appellant had announced he would take Brannon in, dead or alive), but could only use such force as was reasonably necessary under the circumstances, the trial court's charge of using deadly force was correct.
C. Other Noteworthy Decisions:
1. Lack of notice to surety. -- Where the record shows on its face noncompliance with statutory service and notice requirements, the proceedings and resultant judgment must be set aside. Osborne Bonding Co. v. State, 163 Ga. App. 648, 295 S.E.2d 577 (1982) (construing section prior to 1982 amendment).
2. Forfeiture judgment not set aside upon surrender of principal and payment of costs. -- Section 17-6-31 and this section, while making it mandatory upon the court, after rendering final judgment of forfeiture of a criminal bond, to relieve the surety from liability thereunder upon his surrendering the principal into court and paying all costs, do not authorize in such a case the setting aside of such final judgment, and motion praying only that such judgment be set aside because the principal had been surrendered into court and costs paid, is properly dismissed on demurrer. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945).
3. Where the surety gives assistance to police officials which contributes to the arrest of the fugitive defendant and initiates action to surrender the defendant to the superior court, the surety should be relieved of the penalty on forfeiture of the bond. Troup Bonding Co. v. State, 121 Ga. App. 25, 172 S.E.2d 476 (1970).
4. Intent to surrender principal must be expressed and understood. -- Producing or presenting a principal in court is not all that is required to discharge the obligation and relieve securities from their liability under a criminal bond. In order for a surrender of the principal in open court to be effective, the attention of the court must be called to the presence of the defendant principal, and the intention to surrender him must be definitely expressed and understood. Perkins v. Terrell, 1 Ga. App. 250, 58 S.E. 133 (1907); American Sur. Co. v. State, 50 Ga. App. 777, 179 S.E. 407 (1934).
5. Bail may arrest or recapture his principal. Garner v. Mears, 97 Ga. App. 506, 103 S.E.2d 610 (1958).
X. Bounty Hunter Provisions
Bounty Hunters are termed "Bail Recovery Agents" in Georgia’s statutes. Rules governing such are primarily given above under #2 – Licensing Requirements for Agents.