1. Applicable Statutes

Indiana Code [IC] 27-10-1 to 27-10-5-3.

Indiana Code 35-33-1-4 to 35-41-3-3. (relating to arrest authority of non-law enforcement officers generally)

Indiana Administrative Code, 760 IAC 6.2

 

The regulatory body is the Department of Insurance.

 

It does not appear that governance by local rule is permitted.

 

2. Bail Agent Licensing Requirements: [ IC 27-10-3-3]

 

"Bail agent" means a person who has been approved by the commissioner and appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings for which the person receives a premium.

 

Bail Agents must comply with the following for licensure:

• Be at least 18 and of good moral character [27-10-3-3 (a) (1)],
• Never have been convicted of a disqualifying offense as set out in [IC 25-1-1.1]; or, in the case of a conviction, 10 years having lapsed after a felony conviction, and 5 years after a misdemeanor [27-10-3-3 (a) (2)],
• Have knowledge of or instruction in the bail bond business or have held a valid all lines fire and casualty license for 1 year within the last 5, or have been employed by a bail bond company for 1 year of the last 5 [27-10-3-3 (a) (3)],
• Be a resident of Indiana for 1 year from date of application (waivable) [27-10-3-3 (b)],
• Pay license fee ($650) and examination fee ($100) [27-10-3-4 (a)] , submit fingerprints (certified by law enforcement) and photo [27-10-3-4 (b)],
• Take and pass in person a written examination prepared by the commissioner [27-10-3-6].
• Bail agents must keep complete records of all business done under authority of the agent's license. All records shall be open to inspection by the commissioner of the Department of Insurance. [760 IAC 1-6.2-8]

 

3. Notice of Forfeiture [ IC 27-10-2-12]

• Indiana has a combination of late surrender fees and forfeiture. If the defendant does not appear as required by the bond, the clerk shall mail a notice to both the agent and the surety (at their addresses indicated on the bond) of an order by the court to them to surrender the defendant to the court immediately [IC 27-10-2-12 (a)(2) (A)(B)].
• The surety has 365 days after the date of the written notice to produce the defendant, though the late surrender fee increases at each 120-day interval.
• If the surety does not return the defendant within one year, the court shall declare a forfeiture in the amount of 20% of the face of the bond and immediately enter judgment and assess against the surety all actual cost associated with the defendant's recovery [27-10-2-12(d)].

 

4. Forfeiture to Judgment: Allotted Time Between Forfeiture Declaration and Due Date.

 

The bail agent or surety must produce the defendant or prove within 365 days that there was a legitimate reason for defendant's failure to appear. If the agent or surety does not comply with the foregoing terms within 120 days after the clerk mails the notice, they will be assessed a late surrender fee according to the following:

 

• if compliance occurs more than 120 days but less than 180, the fee is 20% of the bond,
• if more than 180 days but less than 210, the fee is 30% of the bond,
• if more than 210 days, but less than 240, late surrender fee is 50%,
• more than 240, but less than 365, the fee is 80%,
• non compliance after 365 days, the fee is 80%. [27-10-2-12(c)(1) through (5)].

 

Tolling is allowed in the sense that the court can waive the late surrender fee or extend the period of payment if

• a written request is filed with the court and the prosecutor [27-10-2-12(e)(1)],
• the surety provides evidence that diligent effort was made to find the defendant [27-10-2-12(e)(2)].

 

Non payment of fees, costs or judgments, etc. result in the revocation of the insurer's license [IC 27-10-2-12(f)] which a surety can appeal [IC 27-10-2-12(h)].

 

5 . Forfeiture Defenses: [IC 27-10-2-12(b)(A)(i)-(iii)].

If the surety cannot produce the defendant, the surety must prove that the appearance of the defendant was prevented:

• By the defendant's illness or death;
• Because the defendant was at the scheduled time of appearance or currently is in the custody of the United States , a state, or a political subdivision of the United States or a state; or
• Because the required notice was not given; and
• The defendant's absence was not with the consent or connivance of the sureties.

 

6. Remission

 

There is no remission period.

 

7. Bail Agent's Arrest Authority [IC 27-10-2-7]

For the purpose of surrendering the defendant, the surety may apprehend the defendant before or after the forfeiture of the undertaking or may empower any law enforcement officer to make apprehension by providing written authority endorsed on a certified copy of the undertaking and paying the lawful fees therefor.

 

8. Other Noteworthy Provisions

A surety may surrender the defendant without return of premium if the defendant fails to report a change of address, conceals himself, leaves the jurisdiction of the court without permission, violates his contract with the surety in a way that does harm to the surety or violates the defendant's obligation to the court. [IC 27-10-2-5 (a)(b)]

 

9. Noteworthy Appellate Decisions

 

Frontier Insurance Company v. State of Indiana , No. 21A04-0302-CR-94, ( Ind. Ct. App. 2003).

The trial court improperly entered a judgment of forfeiture and imposition of late surrender fees against the surety because the court failed to meet the statutory notice requirements regarding forfeiture. The Court of Appeals found that the trial court failed to order the bail agent and surety to immediately surrender the defendant to the court; and the court clerk failed to mail notice of the court's order to the bail agent and surety at the addresses indicated in the bond, as prescribed by Ind. Code § 27-10-2-12(a). The Court of Appeals reversed the imposition of late surrender fees and exonerated the surety from forfeiture of the bond.

 

Accredited Surety & Casualty Co v. State , 565 N.E.2d 1131(Ind. Ct. App. 1991).

When the forfeiture notice was sent to the bondsman but not to the surety, the court held that the forfeiture was invalid. Indiana law requires that both the surety and the bondsman receive notice of the forfeiture, reflecting the legislative intent to afford a full measure of protection to the property rights of the bondsman and surety.

 

 

10. Bounty Hunter Provisions [IC 27-10-3-5]

 

“Recovery agent" means a person who is offered or given any compensation by a bail agent or surety in exchange for assisting the bail agent or surety in apprehending or surrendering any defendant or keeping a defendant under necessary surveillance. This does not affect the right of bail agents or sureties to hire counsel or to ask assistance of law enforcement officers.

 

In addition to the requirements for bail agents, an applicant for a license to serve as a recovery agent must affirmatively show that:

• The applicant is at least eighteen (18) years of age;
• The applicant is a citizen of the United States and has been a bona fide resident of this state for more than six (6) months immediately preceding the date of application; and
• The applicant has never been convicted of a disqualifying offense, notwithstanding IC 25-1-1.1, or in the case of a felony conviction, at least ten (10) years have passed since the date of the applicant's conviction or release from imprisonment, parole, or probation, whichever is later; or in the case of a misdemeanor disqualifying offense, at least five (5) years have passed since the date of the applicant's conviction or release from imprisonment, parole, or probation, whichever is later.
• A license fee of three hundred dollars ($300) and an examination fee of one hundred dollars ($100) shall be submitted to the commissioner with each application, together with the applicant's fingerprints and photograph.

 

A person who is licensed as a bail agent may use as a recovery agent any person who holds a valid recovery agent's license. A bail agent must, on or before October 1 of each year, furnish to the commissioner, on a form supplied by the commissioner, a list of all recovery agents used by the bail agent during the preceding year. [IC 27-10-3-14]