1. Applicable Statutes:

Code of Virginia Title 9.1. Commonwealth Public Safety. Chapter 1. Department of Criminal Justice Services.

Article 11. Bail Bondsmen

Code of Virginia Title 9.1. Commonwealth Public Safety. Chapter 1. Department of Criminal Justice Services.

Article 12. Bail Enforcement Agents

Code of Virginia Title 19.2. Criminal Procedure. Chapter 9. Bail and Recognizances. Article 4. Bail Bondsmen.

Code of Virginia Title 19.2. Criminal Procedure. Chapter 9. Bail and Recognizances. Article 2. Recognizances.

Code of Virginia Title 38.2 Insurance. Chapter 18. Insurance Agents. Article 6.2. Licensing of Surety Bail Bondsmen.

Governance by Local Rule: Local judges can set the rules of reasonable conduct for bail bondsmen. It does not appear that other provisions of the statutes may be altered by local rules.

2. Licensing Requirements: [ VA ST § 9.1 – 185.4]

There are two types of bail bondsmen in VA: surety bail bond agents and property bail bond agents. Specific requirements for each are detailed below.

In order to be licensed as either a property or surety bail bondsman a person shall:

•  Be 18 years of age or older,

•  Have received a high school diploma or GED, and

•  Have successfully completed the bail bondsman exam required by the Board or successfully completed prior to July 1, 2005, a surety bail bondsman exam required by the State Corporation Commission under former § 38.2-1865.7 .

Exclusions: [ VA ST § 9.1 185.4]

The following persons are not eligible for licensure as either a surety or property bail bondsman and may not be employed nor serve as the agent of a bail bondsman: [ VA ST § 9.1 – 185.5]

•  Persons who have been convicted of a felony within the Commonwealth, any other state, or the United States , who have not been pardoned, or whose civil rights have not been restored;

•  Employees of a local or regional jail, sheriff's office, or state or local police department;

•  Persons appointed as conservators of the peace pursuant to Article 4.1 ( § 9.1-150.1 et seq.) of this chapter;

•  Employees of an office of an attorney for the Commonwealth;

•  Employees of the Department of Corrections, Department of Criminal Justice Services, or a local community corrections agency; and

•  Spouses of or any persons residing in the same household as persons referred in this section

These exclusions shall not be construed to limit the ability of a licensed bail bondsman to employ or contract with a licensed bail enforcement agent authorized to do business in the Commonwealth.

Licensing Process for Surety Bondsmen [ VA ST § § 9.1-185.5]

Prior to the issuance of a surety bail bondsman license, each surety bail bondsman applicant shall:

•  Submit proof of current licensing as a property and casualty insurance agent validated by the State Corporation Commission.

•  Submit copies of each qualifying power of attorney that will be used to provide surety.

Any surety bail bondsman license issued pursuant to this article shall terminate immediately upon the termination of the licensee's property and casualty insurance agent license and may not be applied for again until that individual has been issued a new property and casualty insurance agent license.

Note: All surety bail bondsman licenses in effect with the State Corporation Commission shall become void after June 30, 2005. Applicants for licensure for bail bondsmen may submit an application to the Department on or after May 1, 2005

Licensing Process for Property Bondsmen [ VA ST § 9.1-185.5]

Prior to the issuance of a property bail bondsman license, each property bail bondsman applicant shall:

•  Provide proof of collateral of $200,000 on his bonds and proof of collateral of $200,000 on the bonds of each of his agents. Any collateral that is not in the form of real estate, cash, or certificates of deposit issued by a FDIC-insured financial institution shall be specifically approved by the Department before it may be used as collateral.

If the property used as collateral is real estate, such real estate shall be located in the Commonwealth. In addition, the property bail bondsman applicant shall submit to the Department:

•  A true copy of the current real estate tax assessment thereof or a current appraisal of the fair market value of the real estate

•  A new appraisal, if, at its discretion, the Department so orders for good cause shown prior to certification.

•  An affidavit by the property bail bondsman applicant that states, to the best of such person's knowledge, the amount of equity in the real estate, and the amounts due under any obligations secured by liens or similar encumbrances against the real estate, including any delinquent taxes, as of the date of the submission.

If the property used as collateral consists of cash or certificates of deposit, the property bail bondsman applicant shall submit to the Department verification of the amounts, and the names of the financial institution in which they are held.

The Department may direct property bail bondsmen to place a deed of trust on the real estate he is using, with the Commonwealth named as trustee.

For Property Bail Bondsmen Licensed Pre-1989

Any property bail bondsman issued a certificate by a judge pursuant to former § 19.2-152.1, prior to July 1, 1989, who has continuously maintained his certification and who has never provided to a court collateral of $200,000 or more, shall continue to be exempt from the $200,000 collateral requirements specified above. Those property bail bondsmen who are exempted from this provision shall satisfy all of the other requirements in this article for bail bondsmen, and shall provide to the Department the collateral amount to which they may bond and provide proof of his prior certification by obtaining a certified copy of: (i) the certificate issued pursuant to former § 19.2- 152.1 and (ii) the documents held by the originating court that stated the collateral amount for which they were able to bond.

License Renewal [ VA ST § 9.1-185.6]

•  Every bail bondsman license issued pursuant to this article shall be for a term of two years.

•  A bail bondsman license may be renewed for an ensuing two-year period, upon the filing of an application and payment of fee. In addition, applicants for renewal of a bail bondsman license shall undergo a criminal history background check as set out in subdivision B 3 of § 9.1-185.5 and shall provide all other documentation listed § 9.1-185.5 as the Department deems appropriate.

•  On or before the first day of the month prior to the month his license is due to expire, the licensee shall make application for license renewal and shall at that time pay the renewal application fee.

•  Any license not renewed by its expiration date shall terminate on such date.

3. Notice of Forfeiture

•  If a party or witness fails to appear, the court will hold a hearing to show cause why the bond should not be forfeited. Notices of the hearing will be sent within 45 days of the missed appearance. [ VA ST § 19.2-143]

•  If the court finds the bond should be forfeited, the court will record the default unless the defendant is brought before the court within 60 days. [ VA ST § 19.2-143]

4. Forfeiture to Judgment

•  If the court finds the bond should be forfeited, the court will record the default unless the defendant is brought before the court within 60 days. [ VA ST § 19.2-143]

5. Forfeiture Defenses

•  In order to show good cause of why the recognizance should not be forfeited, the defendant must show:

•  Evidence that he was incarcerated or subject to a court process in another jurisdiction;

•  A medical certificate from a licensed physician stating he was physically unable to appear; or [ VA ST § 19.2-143]

•  His failure to appear resulted from his enlistment or drafting into the United States Army or Navy. [ VA ST § 19.2-144]

6. Remission

•  If the defendant appears before or is delivered to the court within 12 months of the findings of default, the court shall remit any bond previously ordered forfeited by the courts, less such costs as the court may direct. [ VA ST § 19.2-143]

•  If the defendant is incarcerated in another state or country within 48 months of the finding of default, thereby preventing his delivery or appearance within that period, the court shall remit any bond previously ordered forfeited. [ VA ST § 19.2-143]

•  If the defendant left the Commonwealth with the permission of the court, the bond shall be remitted without deduction of costs; otherwise, the cost of returning him to the Commonwealth shall be deducted from the bond. [ VA ST § 19.2-143]

•  Provisions for Cash bonds: [ VA ST § 19.2-143]

•  When any defendant who posted a cash bond and failed to appear is tried in his absence and is convicted, the court trying the case shall first apply the cash bond to the payment of any fines or costs adjudged against the defendant or juvenile or imposed by law. Any remaining funds shall be forfeited without further notice. If a rehearing is granted, the court may remit part or all of such cash bond not applied ultimately to fines or costs if good cause is show.

•  If the defendant or juvenile posted a cash bond and failed to appear, but is not tried in his absence, the bond shall be forfeited promptly without further notice. However, if the defendant or juvenile appears in court within 60 days after the bond is forfeited, the judge may remit part or all of any bond previously forfeited.

7. Bail Agent Arrest Authority

•  A surety on a bond in a recognizance may at any time arrest his principal and surrender him to the court before which the recognizance was taken, or to the sheriff, sergeant or jailer of the county or city of the court where the defendant's appearance is required. The surety shall then be discharged from liability for any subsequent act of the defendant. [ VA ST §19.2-149]

•  During the recovery of a bailee, a bail bondsman shall have a copy of the relevant recognizance for the bailee. In the event a bail bondsman is recovering the bailee of another bondsman, he shall also have written authorization from the bailee's bondsman, obtained prior to effecting the capture. The Department shall develop the written authorization form to be used in such circumstances. [ VA ST § 9.1-185.15]

•  A bail bondsmen shall not enter a residential structure without first verbally notifying the occupants who are present at the time of the entry. [ VA ST § 9.1-185.15]

•  Absent exigent circumstances, a bail bondsman shall give prior notification of at least 24 hours to local law enforcement or state police of the intent to apprehend a bailee. In all cases, a bail bondsman shall inform local law enforcement within 30 minutes of capturing a bailee. [ VA ST § 9.1-185.15]

•  A bail bondsman shall not break any laws of the Commonwealth in the act of apprehending a bailee. [ VA ST § 9.1-185.15]

8. Other Noteworthy Provisions

•  A surety on a bond in a recognizance may, after default, pay into the court the amount for which he is bound, with such costs as the court may direct, and be thereupon discharged. [VA ST 19.2-148]

9. Noteworthy State Appellate Decisions

In re Collins, 173 F.3d 924 (4 th Cir., 1999)

Apr 05, 1999

Note: Federal Court decision, applying Virginia law.

Issue: Whether a surety's obligations to pay forfeited bail bonds are dischargeable in bankruptcy.

•  Mr. Collins, a bankrupt bail bond agent moved to reopen his bankruptcy case to determine whether money owed to the Commonwealth of Virginia arising from his unpaid obligations as surety on forfeited bail bonds was dischargeable. The Commonwealth argued that the debt was nondischargeable, and fell within the exception for fines, penalties and forfeitures.

•  The Bankruptcy Court granted motion to reopen and ruled that debt was dischargeable. Commonwealth appealed. The United States District Court for the Eastern District of Virginia affirmed. Commonwealth appealed. The Court of Appeals affirmed, and held that the debt did not fall within discharge exception for fines, penalties, and forfeitures and therefore the Commonwealth could not collect on the debt.

Re: In re BAIL AMERICA BONDING CO., Misc. No. 6557.

No. 6557.

Circuit Court of Virginia .

Jan. 27, 1999.

Issue: Suspension of Bail Bond Company's License.

•  The evidence presented at the December 11, 1998 hearing demonstrated that Mr. Tommy Simpson, an agent of BAB, had written a bail bond for Mr. Hector Castrejon, a defendant in a criminal proceeding pending in the Fairfax General District Court, for which he received from Mr. Arturo de la Torre, a friend of Castrejon, $1,350: $350 as a bond premium, $1,000 in cash and title to Mr. de la Torre's truck as collateral. Mr. de la Torre received a receipt which listed the amounts received, denominating the $1,000 in cash collateral as "Miscellaneous Charges," and indicating that the collateral was accepted in connection with a bond written by BAB for Mr. Castrejon.

•  This Court has accordingly entered an order today, January 27, 1999, suspending the authority of BAB, its principals, and agents from writing bail bonds in criminal matters pending in the 19th Judicial Circuit after February 1, 1999. This Court, moreover, has received applications for the approval of new agents for BAB. No such application will be considered for approval before July 31, 1999.

•  Finally, only after July 31, 1999, may BAB reapply for authority to write bonds in criminal matters pending in the 19th Judicial Circuit. In connection therewith, BAB will be required to submit a plan showing how the company will in the future monitor activities of its agents and maintain accurate records of bail bonds received.

2. Roger D. ROBERTS, t/a Allstate Bonding Company, etc. v. BOARD OF SUPERVISORS OF ROANOKE COUNTY.

Record No. 940059.

Supreme Court of Virginia.

Jan. 13, 1995.

Issue: Whether Attorney Required to Obtain Bondsman License.

•  Agent and attorney-in-fact for insurance company sought declaratory judgment that he was not required to obtain revenue license as professional bondsman under county ordinance. The Circuit Court, Roanoke County, denied petition. Agent appealed.

•  The Supreme Court, Carrico, C.J., held that agent was required to pay license tax as professional bondsman. The Circuit Court's decision was affirmed.

3. COMMONWEALTH of Virginia v. ALLSTATE BONDING COMPANY, et al

Record No. 921704.

Supreme Court of Virginia.

Issue: Forfeiture

•  Commonwealth moved for forfeiture of bail bonds. The district court ruled that bonds should be forfeited, and sureties appealed. The Circuit Court, City of Roanoke, reversed, and appeal was taken.

•  The Supreme Court held that a delay of 13 months to more than three years between defendants' failure to appear and issuance of notices to sureties to show cause why bonds should not be forfeited did not preclude forfeiture.

10. Bounty Hunter Provisions. [VA ST § 9.1-186.4.]

In order to be licensed as a bounty hunter (“bail enforcement agent”) a person shall

•  Be 21 years of age or older,

•  Have received a high school diploma or GED, and

•  Have satisfactorily completed a basic certification course in training for bail enforcement agents offered by the Department. Partial exemptions to the training requirements may be approved by the Department if the individual has received prior training.

Licensing Process [VA ST § 9.1-186.5]

Prior to the issuance of any bail enforcement agent license, each applicant shall:

•  File with the Department an application for such license on the form and in the manner prescribed by the Board.

•  Complete the basic certification courses in training for bail enforcement agents required by the Department.

•  Submit the appropriate nonrefundable application processing fee to the Department.

•  Submit to fingerprinting and background check and pay the fees for each.

Exclusions [VA ST § 9.1- 186.4]

The following persons are not eligible for licensure as a bail enforcement agent and may not be employed nor serve as agents for a bail enforcement agent:

•  Persons who have been convicted of a felony within the Commonwealth, any other state, or the United States, who have not been pardoned, or whose civil rights have not been restored.

•  Persons who have been convicted of any misdemeanor within the Commonwealth, any other state, or the United States within the preceding five years. This prohibition may be waived by the Department, for good cause shown, so long as the conviction was not for one of the following or a substantially similar misdemeanor: carrying a concealed weapon, assault and battery, sexual battery, a drug offense, driving under the influence, discharging a firearm, a sex offense, or larceny.

•  Persons who have been convicted of any misdemeanor within the Commonwealth, any other state, or the United States, that is substantially similar to the following: brandishing a firearm or stalking. The Department may not waive the prohibitions under this subdivision.

•  Persons currently the subject of a protective order within the Commonwealth or another state.

•  Employees of a local or regional jail, sheriff's office, or a state or local police department.

•  Commonwealth's Attorneys, and any employees of their offices.

•  Employees of the Department of Corrections, Department of Criminal Justice Services, or a local community corrections agency.

The exclusions in subsection shall not be construed to prohibit law enforcement from accompanying a bail enforcement agent when he engages in bail recovery.

Recovery of Bailees by Bounty Hunters [VA ST § 9.1-186.12]

•  During the recovery of a bailee, a bail enforcement agent shall have a copy of the relevant recognizance for the bailee. He shall also have written authorization from the bailee's bondsman, obtained prior to effecting the capture. The Department shall develop the written authorization form to be used in such circumstances

•  A bail enforcement agent shall not enter the residence of another without first verbally notifying the occupants who are present at the time of entry.

•  Absent exigent circumstances, a bail enforcement agent shall give prior notification of at least 24 hours to local law enforcement or state police of the intent to apprehend a bailee. In all cases, a bail enforcement agent shall inform local law enforcement within 60 minutes of capturing a bailee.

•  A bail enforcement agent shall not break any laws of the Commonwealth in the act of apprehending a bailee.

License Renewal for Bounty Hunters [VA ST § 9.1-186.6]

•  Every bail enforcement agent license issued pursuant to this article shall be for a term of two years.

•  A bail enforcement agent license may be renewed for an ensuing two-year period, upon the filing of an application and renewal fee. Applicants shall provide all other documentation as the Department deems appropriate, including but not limited to, a criminal history background check.

•  On or before the first day of the month prior to the month his license is due to expire, the licensee shall make application for license renewal and shall at that time pay the renewal application fee

•  Any license not renewed by its expiration date shall terminate on such date.

•  Prior to license renewal, bail enforcement agents shall be required to complete eight hours of continuing education approved by the Department.