1. Applicable Statutes

New Mexico Statutes Annotated 1978. Chapter 59A: Insurance. Article 51: Bail Bondsmen Licensing Law.

New Mexico Statutes Annotated 1978. Chapter 31: Criminal Procedure. Article 3: Bail.

New Mexico Court Rules Annotated, Rule 5 – 406, 407.

2. Licensing Requirements

"Bail Bondsman" means a limited surety agent or a property bondsman.

"Solicitor" means a person employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, or to assist in the apprehension and surrender of defendant to the court or keeping the defendant under necessary surveillance, and to solicit bail bond business, to sign property bonds and assist in other conduct of the business all as authorized by the employer bail bondsman.

[N. M. S. A. 1978, § 59A-51-2]

Bail bondsmen or solicitors must comply with the following for licensure: [N. M. S. A. 1978, § 59A-51-4.1]

• be an individual not less than eighteen years of age;
• be a citizen of the United States ;
• not have been convicted of a felony, with the exception of a conditional discharge of a felony conviction, or anyone properly licensed as of January 1, 2005;
• not be a law enforcement, adjudication, jail, court or prosecution official or an employee thereof or an attorney, official authorized to admit to bail, or state or county officer
• if for license as bondsman, pass a written examination testing the applicant's knowledge and competence to engage in the bail bondsman business;
• be of good personal and business reputation;
• if to act as a property bondsman, be financially responsible and provide the surety bond or deposit in lieu thereof as required in accordance with Section 59A-51-8 NMSA 1978;
• if to act as a limited surety agent, be appointed by an authorized surety insurer; and
• if for license as a solicitor, have been so appointed by a licensed bail bondsman subject to issuance of the solicitor license.
• pay exam and license fees
• Applicants for Bail Bondsmen licenses must comply with education and examination requirements, including:
• Completion of not less than thirty clock hours of formal classroom education in subjects pertinent to the duties and responsibilities of a bail bondsman, including ethics and all laws and rules related to the bail bond business. In addition, the applicant shall complete one hundred twenty hours of on-the-job training under the direct supervision of a sponsoring bail bondsman who shall certify in writing that he has taught the applicant the subjects pertinent to the duties and responsibilities of a bail bondsman, including ethics and all laws and rules related to the bail bond business, and that the applicant is prepared to take the examination; OR
• Instead of the above educational requirement, an applicant may become eligible to take the examination by apprenticing for a minimum of six months with a sponsoring bail bondsman. The sponsoring bail bondsman shall certify in writing that he has taught the applicant the subjects pertinent to the duties and responsibilities of a bail bondsman, including ethics and all laws and rules related to the bail bond business, and that the applicant is prepared to take the examination.
• The scope of the examination shall be as broad as the bail bond business.
• Applicants for a solicitor's license must comply with the following education requirement:
• Each person shall complete not less than ten clock hours of formal classroom education in subjects pertinent to the duties and responsibilities of a solicitor, including ethics and all laws and rules related to the bail bond business. In addition, the applicant for a solicitor's license shall complete thirty hours of on-the-job training under the direct supervision of a sponsoring bail bondsman who shall certify in writing that he has taught the applicant the subjects pertinent to the duties and responsibilities of a solicitor, including ethics and all laws and rules related to the bail bond business, and that the applicant is prepared to take the examination. The scope of the examination shall be as broad as the bail bond business.
• Both bail bondsmen and solicitors must complete 15 clock hours of continuing education in order to renew their licenses. An examination is not necessary for renewal.

3. Notice of Forfeiture

After a defendant's failure to appear, the court may order an immediate forfeiture of the bond. In so doing, the court shall give written notice of the forfeiture to the surety within four (4) working days of declaration and issue a bench warrant for the defendant's arrest. [N. M. S. A. 1978, § 31-3-3]

4. Forfeiture to Judgment

If a forfeiture has been declared, the court shall hold a hearing on the forfeiture prior to entering a judgment of default on the bond. A hearing on the forfeiture shall be held thirty (30) or more days after service of the Notice of Forfeiture and Order to Show Cause on the clerk of the court in the manner provided by Rule 5-407. [NMRA, Rule 5-406]

When a forfeiture has not been set aside, the court shall on motion enter a judgment of default, and execution may issue thereon. By entering into a bail bond, the obligors submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as their agent upon whom papers affecting their liability may be served. Liability of the surety may be enforced on motion without the necessity of an independent action.

Notice of the motion to enter a judgment of default may be served pursuant to the rules of criminal procedure or may be served on the clerk of the court, who shall forthwith mail copies to the obligors at their last known address. The notice shall require the sureties to appear on or before a given date and show cause why judgment shall not be entered against them for the amount of the bail bond or recognizance. If good cause is not shown, the court may then enter judgment against the obligors on the recognizance, for such sum as it sees fit, not exceeding the penalty fixed by the bail bond or recognizance. [N. M. S. A. 1978, § 31-3-3]

If, after a hearing, the forfeiture is not set aside, a default judgment on the bond shall be entered by the court. If the default judgment is not paid within ten (10) days after it is filed and served on the surety in the manner provided by Rule 5-407, execution may issue thereon.

5. Defenses to Forfeiture

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. [N. M. S. A. 1978, § 31-3-3]

6. Remission

When a judgment has been rendered against the defendant or surety for the whole or part of the penalty of a forfeited recognizance, the court rendering such judgment shall remit the amount thereof when, after such rendition, the accused has been arrested and surrendered to the proper court to be tried on such charge or to answer the judgment of the court, provided that the apprehension of the accused in some way was aided by the surety's efforts or by information supplied by the surety. [N. M. S. A. 1978, § 31-3-3]

7. Bail Agent's Arrest Authority

If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge, or magistrate, by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state. [N. M. S. A. 1978, § 31-4-18]

A person who is released upon execution of a bail bond by a paid surety may be arrested by the paid surety if the court has revoked the defendant's conditions of release pursuant to Rule 5- 403 or if the court has declared a forfeiture of the bond pursuant to the provisions of this rule. If the paid surety delivers the defendant to the court prior to the entry of a judgment of default on the bond, the court may absolve the bondsman of responsibility to pay all or part of the bond. [NMRA, Rule 5-406]

8. Other Noteworthy Provisions

In the event that an obligor does not possess property in this state sufficient to satisfy a judgment against it for the whole or part of the penalty of a forfeited recognizance, the court entering judgment against the obligor on the recognizance shall send written notification to the superintendent of insurance. Immediately upon receipt of such written notification and pursuant to Section 46-6-4 NMSA 1978, the superintendent of insurance shall inform the obligor that unless the judgment is paid or an appeal, writ of error or supersedeas is taken within thirty days of the rendition of the judgment or decree, such obligor shall forfeit all right to do business in this state. If timely appeal, writ of error or supersedeas is not taken, the superintendent of insurance shall immediately take whatever steps necessary to revoke the right of the obligor to do business in this state.

9. Noteworthy Appellate Decisions

State of New Mexico v. Alberto Lopez and Thomas K. Colson . 734 P.2d 778 (N.M. App. 1986).

Bondsman was convicted of aggravated assault on peace officer, attempted aggravated burglary, and aggravated assault, and his employee was convicted of attempted aggravated burglary and aggravated assault, by the District Court. They appealed. The Court of Appeals held that neither the common law nor statutory authority of bondsman to make warrantless arrest of principal absolved defendants of criminal responsibility ensuing from their armed, unauthorized and forcible entry into residence of third party.

Tony Madrid v. Department of Insurance , 697 P.2d 125 (N.M.,1985)

A bondsman appealed the decision of the Superintendent of Insurance suspending his operating licenses. The District Court upheld the suspension. The bondsman appealed. The Supreme Court held that under sections of relevant bondsmen licensing law in effect at the time, the licenses were suspended by Superintendent of Insurance and the bondsman's only recourse was to appeal to the Commission. Therefore, the district court did not have jurisdiction over the bondsman's appeal from the Superintendent's suspension order. The license suspension was reversed and remanded.

State of New Mexico v. Adelaida Ellen Ramierez, Charles McNelly and Cotton Belt Insurance Company, 637 P.2d 556 (N.M., 1981).

The district court affirmed a magistrate's refusal to reduce or remit a forfeited bond because more than 15 days had passed since the judgment. The Supreme Court reversed, and held that the legislature affirmatively granted magistrate courts discretion to set aside a bail bond forfeiture judgment. Thus a magistrate court has jurisdiction to remit or reduce a forfeiture even though a motion to do so is made more than 15 days after entry of forfeiture judgment.

State v. Cotton Belt Ins. Co ., 637 P.2d 834 (1981).

Bail is subject to forfeiture until such time as the defendant surrenders himself to the authorities to serve his sentence.

State v. United Bonding Ins. Co ., 464 P.2d 884 (N.M., 1970).

No bail discharge because principal imprisoned in another state. If the performance of a recognizance is rendered impossible by the imprisonment of the principal in another state, it is not such an act of law as will discharge bail.

10. Bounty Hunter Provisions

In New Mexico, “solicitors” assist bondsmen in apprehending defendants. They are governed by the licensing provisions outlined in Part 2.