I. Applicable Statutes
A. WEST VIRGINIA CODE 1966 CHAPTER 51. COURTS AND THEIR OFFICERS. ARTICLE 10A. BAIL BOND ENFORCERS.
B. WEST VIRGINIA CODE 1966 CHAPTER 62. CRIMINAL PROCEDURE. ARTICLE 1C. BAIL.
II. Licensing Requirements for Agents
A. WEST VIRGINIA CODE 1966 CHAPTER 51. COURTS AND THEIR OFFICERS. ARTICLE 10A. BAIL BOND ENFORCERS. § 51-10A-1 Definitions.
1. "Bail bondsman" means any person, partnership or corporation engaged for profit in the business of furnishing bail, making bonds or entering into undertakings, as surety, for the appearance of persons charged with a criminal offense or violation of law punishable by fine or imprisonment before any court within or without this state. The term "bail bondsman" includes, but is not limited to, persons conducting a bonding business as defined in section one [§ 51-10-1], article ten of this chapter.
2. "Bail bond enforcer" means a person who on behalf of a bail bondsman enters this state or is present in this state for the purposes of:
a. Assisting a bail bondsman in presenting the defendant in court when required;
b. assisting in the apprehension and surrender of the defendant to a court;
c. keeping a defendant under surveillance; or
d. executing bonds on behalf of a bail bondsman when a power of attorney has been duly recorded. The term "bail bond enforcer" does not include a duly licensed attorney-at-law or a law- enforcement officer assisting a bail bondsman.
B. § 51-10A-2 Registration of bail bond enforcers and authorization by bail bondsman required; fees.
1. No person may act in the capacity of a bail bond enforcer within this state or perform any of the functions, duties, or powers prescribed for bail bond enforcers under section one [§ 51-10A-1] of this article unless duly registered with the West Virginia state police as provided in this section.
2. The superintendent of the West Virginia state police shall design registration, authorization and notice forms, which, at minimum, shall require:
a. Identifying information as to the registrant and at least one bail bondsman on whose behalf he or she is authorized to act as agent: Provided, That a registrant may not act on behalf of any bail bondsman until authorization to act is filed with the superintendent;
b. A complete set of the registrant's fingerprints, certified by an authorized law enforcement officer;
c. A recent credential-sized, full-face photograph of the registrant;
d. Certification, under penalties of perjury, that the registrant is at least twenty-one years of age, is a citizen of the United States, and has never been convicted of a felony in any state of the United States;
e. Authorization in writing, as provided in subsection (2) or (3) of this section, from any bail bondsman on whose behalf the bail bond enforcer is authorized to enter this state or act within this state; and
f. Other information as the superintendent determines is reasonable and necessary.
3. A bail bondsman conducting a bonding business in this state may grant continuing authorization to a bail bond enforcer who is a citizen and resident of this state to act as his or her agent on a continuing basis, for a period of time not to exceed two years, either statewide or within named counties or judicial circuits of the state, with respect to all defendants for whom the bail bondsman acts as surety to secure an appearance. A continuing authorization shall state the expiration date of the authorization on the face of the document.
4. A bail bondsman within or without this state may grant authorization to a bail bond enforcer within or without this state to act as his or her agent with respect to a named defendant or named defendants, for a period of time not to exceed sixty days, in which case notice in advance of any action to the West Virginia state police of the time and place of any proposed action within this state with respect to any defendant, and the date any bail bond enforcer who is not a resident of this state will enter the state, is required. An authorization shall state the expiration date of the authorization on the face of the document.
5. The superintendent may require any reasonable interrogatories or examinations relating to a registrant's qualifications or other matters which are reasonably necessary to protect the public.
6. The superintendent may establish and collect a reasonable registration fee not to exceed fifty dollars to accompany registration, and a filing fee not to exceed ten dollars to accompany the filing of any authorization, to be used for the purposes of defraying administrative and other expenses incurred due to the enactment of this article. No fee is authorized for the filing of notices required under this article.
7. The superintendent is authorized to file and disseminate an interpretive rule for the purpose of providing information and guidance to prospective registrants, bail bondsmen, and the general public with respect to the enforcement of this article. The superintendent is charged with the enforcement of this article in the civil and criminal courts of the state and may take any lawful action reasonably necessary to effectuate its purposes.
C. § 51-10A-3 Effect of authorization.
A bail bond enforcer authorized or employed by a bail bondsman to act within this state with respect to any defendant whose custody or appearance the bail bond enforcer secures or attempts to secure, is the agent of the bail bondsman for any act related to the purposes set forth in section one [§ 51-10A-1] of this article. A bail bond enforcer who acts in that capacity within this state is the agent of the bail bondsman with whom the bail bond enforcer has an agreement or written or verbal contract, whether or not authorization is filed with the West Virginia state police as required in section two [§ 51-10A-2] of this article.
D. § 51-10A-4 Prohibited conduct.
A bail bond enforcer may not:
1. Enter an occupied residential structure without the consent of the occupants who are present at the time of the entry;
2. Conduct a bail recovery arrest or apprehension without written authorization from a bail bondsman;
3. Wear, carry or display any uniform, badge, shield or other insignia or emblem that implies that the bail bond enforcer is an employee, officer or agent of this state, a political subdivision of this state or the federal government. A bail bond enforcer may display identification that indicates his or her status as a bail bond enforcer only; or
4. Conduct a bail bond apprehension or arrest without exercising due care to protect the safety of persons other than the defendant and the property of persons other than the defendant.
E. § 51-10A-5 Unauthorized acts; penalties.
2. A bail bondsman who, without filing the authorization required in this article, employs or contracts with a bail bond enforcer who enters this state or acts on the bondsman's behalf within this state; who authorizes an unregistered bail bond enforcer to act on his or her behalf; or whose agent acts in a manner prohibited in section four [§ 51-10A-4] of this article, is subject to a civil penalty of ten thousand dollars, enforceable by civil action in the circuit court of Kanawha County or the circuit court of any county in which the unauthorized action as a bail bond enforcer has occurred. The superintendent of the West Virginia state police is authorized to enforce payment of civil penalties through the courts of this state. Civil penalties pursuant to this section are payable one-half to the state police death, disability and retirement fund and one-half to the crime victims compensation fund.
III. Notice of Forfeiture
WEST VIRGINIA CODE 1966 CHAPTER 62. CRIMINAL PROCEDURE. ARTICLE 1C. BAIL. § 62-1C-9 Same -- Enforcement.
When a forfeiture has not been set aside, the court or justice [magistrate], upon motion of the State, shall enter a judgment of default and execution may issue thereon: Provided, That if the forfeiture is declared in a court of record, the order taking judgment shall be entered at the same term of court in which the forfeiture was declared: And Provided further, That if the deposit for bail be by a person other than the defendant, or if the bail be in the form of recognizance, such person making the deposit or the surety on the recognizance shall be given ten days' notice by certified mail at his last- known address to appear and show cause why a judgment of default should not be entered.
IV. Allotted Time between Forfeiture Declaration and Payment Due Date
V. Forfeiture Defenses
A. WEST VIRGINIA CODE 1966 CHAPTER 62. CRIMINAL PROCEDURE. ARTICLE 1C. BAIL. § 62-1C-12 Same -- Exoneration; return of deposit.
When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court or justice [magistrate] shall exonerate the surety and release any bail and, if the bail be in a form other than a recognizance, the deposit shall be returned to the person who made the same. The surety may be exonerated by a deposit of cash in the amount of the bail or by a timely surrender of the defendant into custody.
B. WEST VIRGINIA CODE COURT RULES RULES OF CRIMINAL PROCEDURE GENERAL PROVISIONS. RULE 46. Release from custody.
(4)(f) Exoneration. -- When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail, and if the bail be in a form other than a recognizance, the deposit shall be returned to the person who made the same. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
WEST VIRGINIA CODE COURT RULES RULES OF CRIMINAL PROCEDURE GENERAL PROVISIONS. RULE 46. Release from custody.
A. Setting aside. -- The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
B. Remission. -- After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (A) of this subdivision.
VII. Bail Agent’s Arrest Authority
WEST VIRGINIA CODE 1966 CHAPTER 51. COURTS AND THEIR OFFICERS. ARTICLE 10A. BAIL BOND ENFORCERS. § 51-10A-1 Definitions.
"Bail bond enforcer" means a person who on behalf of a bail bondsman enters this state or is present in this state for the purposes of assisting in the apprehension and surrender of the defendant to a court.
VIII. Other Noteworthy Provisions
A. WEST VIRGINIA CODE 1966 CHAPTER 51. COURTS AND THEIR OFFICERS. ARTICLE 10. PROFESSIONAL BONDSMEN IN CRIMINAL CASES. § 51-10-8 Qualifications of bondsmen; rules to be prescribed by courts; lists of agents to be furnished; renewal of authority to act; false swearing.
1. Courts of record regularly exercising criminal jurisdiction in counties of more than two hundred thousand population shall, and in counties of two hundred thousand population or less such courts may, provide, under reasonable rules and regulations, the qualifications of persons and corporations applying for authority to engage in the bonding business in criminal cases in the State of West Virginia, and the terms and conditions upon which such business shall be carried on, and no person or corporation shall, either as principal, or as agent, clerk, or representative of another, engage in the bonding business in any court regularly exercising criminal jurisdiction until he shall by order of such court of record be authorized to do so.
2. Such courts of record, in making such rules and regulations, and in granting authority to persons to engage in the bonding business, shall take into consideration both the financial responsibility and the moral qualities of the person so applying, and no person shall be permitted to engage, either as principal or agent, in the business of becoming surety upon bonds for compensation in criminal cases, who has ever been convicted of any offense involving moral turpitude, or who is not known to be a person of good moral character.
3. It shall be the duty of each of said courts of record to require every person qualifying to engage in the bonding business as principal to file with said court a list showing the name, age, and residence of each person employed by said bondsman as agent, clerk, or representative in the bonding business, and require an affidavit from each of said persons stating that said person shall abide by the terms and provisions of this article.
4. Each of said courts of record shall require the authority of each of said persons to be renewed from time to time at such periods as the said courts may by rule provide, and before said authority shall be renewed the said courts shall require from each of said persons an affidavit that since his previous qualifications to engage in the bonding business he has abided by the provisions of this article, and any person swearing falsely in any of said affidavits shall be guilty of false swearing.
B. WEST VIRGINIA CODE 1966 CHAPTER 56. PLEADING AND PRACTICE. ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION. § 56-3-34 Actions by or against nonresident bail bond enforcement agents or bail bondsmen; appointment of secretary of state as agents; service of process.
See statute in full for lengthy provisions on this subject
C. WEST VIRGINIA CODE 1966 CHAPTER 62. CRIMINAL PROCEDURE. ARTICLE 1C. BAIL.§ 62-1C-10 Same -- Bail in excess of jurisdictional limit of justice [magistrate] or of particular court.
Where the forfeiture has been declared by a justice [magistrate] or by a court of limited jurisdiction of bail in excess of the jurisdictional limit of justice [magistrate] or of the particular court, such forfeiture shall be certified to a court of the county having sufficient jurisdiction, which court shall thereupon proceed as if the forfeiture were originally declared in such court.
IX. Noteworthy State Appellate Decisions
A. State v. Hedrick
204 W.Va. 547
514 S.E.2d 397
West Virginia Supreme Court of Appeals
February 22, 1999
After bail bonds totaling $455,000 were forfeited due to criminal defendant's failure to appear at hearing, and after defendant surrendered himself, surety moved to exonerate its obligation on forfeited bonds. The Circuit Court, Pendleton County, Donald H. Cookman, J., entered judgment remitting only $355,000 of that amount. Surety appealed. The Supreme Court of Appeals, Davis, J., held that failure to remit full amount of forfeited bonds was not abuse of discretion. Affirmed.
B. State v. Belcher
168 West Virginia 515
285 S.E.2d 147
West Virginia Supreme Court of Appeals
December 15, 1981
Bondsman appealed from a judgment of the Circuit Court, Wyoming County, A. R. Kingdon, J., holding him liable as surety on an appearance bond for the nonappearance of a criminal defendant. The Supreme Court of Appeals held that:
(1) fact that no judgment was entered against defendant in the term in which he was indicted did not relieve bondsman of his liability on the bond following failure of defendant to appear for trial, and
(2) as a general rule, upon default of the principal in a recognizance conditioned upon his appearance before a court, the surety will be excused from liability on such recognizance only where the default of the principal is caused by the public enemy, the obligee, the law or an act of God. Affirmed.
C. State v. Arrington
147 West Virginia 753
131 S.E.2d 382
West Virginia Supreme Court of Appeals
June 11, 1963
Action by State of West Cirginia against principal and surety on recognizance on ground of principal's failure to appear before West Virginia court on June 6, 1960, in accordance with recognizance. The Circuit Court, Marion County, J. Harper Meredith, J., entered judgment for state. On appeal, the Supreme Court of Appeals, Calhoun, J., held that principal's appearance before West Virginia court on June 6, 1960, in accordance with recognizance was prevented by State of West Virginia, and, therefore, circuit court abused its discretion in not remitting penalty of recognizance, where principal, who had been arrested in Ohio and returned to New Jersey by Federal Bureau of Investigation for crime allegedly committed on May 31, 1956, was denied bond by New Jersey authorities after assistant prosecuting attorney in West Virginia had sent detainer to New Jersey authorities on May 13, 1960. Judgment reversed, and case remanded with instructions.
X. Bounty Hunter Provisions
See II above, and WVC 51-10A, 56-3-34, and WV H4481 (Enacted April 4, 2000).