I. Applicable Statutes
TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURECHAPTER 11 BAIL Parts 1 – 4.
Licensing Requirements for Agents
A. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 3-- Professional Bondsmen 40-11-301 Definitions.
1. "Professional bondsman," under this part, means any person, firm, partnership or corporation, engaged for profit in the business of furnishing bail, making bonds or entering into undertakings, as surety, in criminal proceedings, or for the appearance of persons charged with any criminal offense or violation of law or ordinance punishable by fine, imprisonment and/or death, before any of the courts of this state, including municipal courts, and/or securing the payment of fines, judgments and/or damages imposed and of costs assessed by such courts upon preliminary or final disposition thereof.
2. The business of a professional bondsman shall be limited to the acts, transactions and undertakings enumerated in subsection (1) and to no others.
3. The masculine gender, whenever used herein, applies to all persons, firms, partnerships and corporations affected by this part.
4. "Professional bondsman" or "bondsman," whenever used herein, extends to and includes the agents, representatives or employees of such professional bondsman, or those acting for the bondsman, whether with or without compensation or salary.
B. 40-11-317 Application required to set forth criminal history of applicant.
In addition to any other qualifications required by law, the petition or license application for a person seeking to become a professional bondsman shall have attached to it an affidavit setting forth the criminal history, if any, of the petitioner or applicant and a copy of such criminal history as maintained by the appropriate law enforcement agency. The petitioner or applicant shall obtain a copy of the petitioner's or applicant's criminal history, if any, from the appropriate law enforcement agency and shall be responsible for any fee that is charged to obtain such a copy. In addition to any other penalties provided by law, if the affidavit is found to be inaccurate, the petitioner or applicant shall be immediately disqualified as a professional bonding person.
C. 40-11-318 Bounty hunting.
1. "Bounty hunting" is defined as a person who acts as an agent of a professional bondsman who attempts to or takes into custody a person who has failed to appear in court and whose bond has been forfeited, for a fee, the payment of which is contingent upon the taking of a person into custody and returning such person to the custody of the professional bondsman for whom the bounty hunter works; provided, that "bounty hunting" does not include the taking into custody of a person by a professional bondsman.
2. No person who has been "convicted of a felony" shall serve as a bounty hunter in the state of Tennessee. Persons having been convicted of a felony who perform the services of a bounty hunter as defined in this section commit a criminal offense, punishable as a Class A misdemeanor.
3. Before a bounty hunter takes into custody any person who has failed to appear in court, such bounty hunter shall present to the office of the appropriate law enforcement officer of the political subdivision where the taking will occur:
a. A copy of the applicable warrant;
b. A copy of the bond; and
c. Proper credentials from a professional bondsman in Tennessee or another state verifying that the bounty hunter is an agent of a professional bondsman.
d. Failure to present all of the proper credentials as specified in this section to the office of the appropriate law enforcement officer prior to taking any person into custody shall be punishable as a Class A misdemeanor.
5. A professional bondsman, who knowingly employs a convicted felon to act as an agent of such bondsman for purposes of taking into custody a person who failed to appear in court, commits a Class A misdemeanor.
D. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 4-- Continuing Education 40-11-401 Continuing education required.
Each professional bail bondsman or bonding agent individually, including partners, officers and directors of a corporation engaged for profit who are qualified as professional bail bondsmen or bonding agents, making bonds or entering into undertakings as surety in criminal proceedings as defined in § 40-11-301, shall obtain eight (8) hours of continuing education credits during each twelve-month period beginning on January 1, 1997. For the purpose of this part, "agent" means a professional bail bondsman or professional bail bonding agent except for those who are licensed as limited insurance representatives by the department of commerce and insurance pursuant to the provisions of title 56, chapter 6, part 1 and the regulations of that department. Agents holding limited insurance representative licenses are expressly excluded from the provisions of this part until July 15, 1998, at which time they shall be required to submit their first annual certificate of compliance.
III. Notice of Forfeiture
A. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 1-- Admission to Bail 40-11-139 Forfeiture of bail security -- Notice to defendant and sureties.
1. If the defendant whose release is secured under § 40-11-122 does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited. Notice of such order of forfeiture shall be forthwith sent by certified mail, restricted delivery, return receipt requested, by the clerk of the court to the defendant at the defendant's last known address. The defendant's surety will be served with scire facias upon the forfeiture entered.
2. After the expiration of one hundred eighty (180) days from the date:
a. The surety is served with scire facias; or
b. Scire facias is returned to the clerk unserved or undelivered; the court may enter judgment for the state against the defendant and the defendant's sureties for the amount of the bail and costs of the proceedings.
B. 40-11-202 Scire facias.
A scire facias shall issue as heretofore to notify the defendant and the defendant's sureties to show cause why such judgment shall not be made final.
IV. Allotted Time between Forfeiture Declaration and Payment Due Date
See section #3 above, sub A.
V. Forfeiture Defenses
A. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 1-- Admission to Bail 40-11-132 Exoneration of bail bondsman or surety by surrender of defendant.
At any time before the forfeiture of their undertaking, the bail bondsman or surety may surrender the defendant in their exoneration, or the defendant may personally surrender to the officer. Surrender by a bail bondsman or surety shall be for good cause, including, but not limited to, the following:
1. The defendant has violated the contractual provisions between defendant and bondsman; or
2. The bondsman or surety has good cause to believe the defendant will not appear as ordered by the court having jurisdiction.
B. 40-11-138 Release of bail bondsmen or sureties from obligations.
1. If the conditions of the bail bond have been performed and the defendant has been discharged from the defendant's obligations in the cause, the clerk of the court shall return to the bondsman the deposit of any cash. If the bail has been secured by real estate, the clerk of the court shall forthwith prepare and forward to the register a written release of the deed of trust on the real estate. The costs thereof shall be paid by the defendant.
C. 40-11-201 Conditional judgment on failure to appear.
1. If the defendant who gives bail or makes a cash deposit as provided in part 1 does not appear according to such undertaking, a conditional judgment may be entered against the defendant and the defendant's sureties, or against the defendant alone, in case of a deposit.
2. No forfeiture or conditional forfeiture of any appearance or bail bond shall be rendered in any case where a sworn statement of a licensed physician is furnished the court showing that the principal in such bond is prevented from attending by some mental or physical disability, or where a sworn affidavit of the jailer, warden or other responsible officer of a jail, workhouse or penitentiary in which the principal is being detained shall be furnished the court.
3. The appearance or bail bond shall remain in full force and effect until the principal is physically or mentally able to appear, or until a detainer against the principal is filed with the detaining authority. On the filing of such detainer, the bondsman and sureties shall remain liable for the expenses of returning the principal to this jurisdiction for trial when the principal is released by the detaining authority. The liability of any bondsman or surety shall not exceed the amount of the bail bond. After trial, however, if it is necessary to return the principal to the detaining authority in another jurisdiction, all expenses incurred in such return shall be paid by the state of Tennessee.
D. 40-11-203 Exoneration by surrender of defendant.
1. After the liability of the bail bondsman or surety has become fixed by forfeiture, and before payment, the bail bondsman or surety may be exonerated from the liability by the surrender of the defendant and the payment of all costs; but may be exonerated from costs also if, in the opinion of the court, the bail bondsman or surety has been in no fault.
2. It is left to the sound discretion of the court whether the bail bondsman or surety shall be relieved from the liability of bail to any and to what extent.
A. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 2-- Forfeiture of Bail 40-11-204 Relief on forfeited recognizances.
1. Except as provided in subsection 2, the judges of the general sessions, circuit, criminal and supreme courts may receive, hear and determine the petition of any person who claims relief is merited on any recognizances forfeited, and so lessen or absolutely remit the same, less a clerk's commission of five percent (5%) of the original paid final forfeiture or one thousand dollars ($1,000), whichever is less, and do all and everything therein as they shall deem just and right, and consistent with the welfare of the state, as well as the person praying such relief. This power shall extend to the relief of those against whom final judgment has been entered whether or not the judgment has been paid, as well as to the relief of those against whom proceedings are in progress. Cities, which have adopted home rule, may elect to authorize their city court judges to lessen or remit forfeitures in accordance with the provisions of this section if those judges have jurisdiction to hear state misdemeanor cases.
2. In counties having a population of more than seven hundred thousand (700,000) according to the 1990 federal census or any subsequent federal census, the clerk's commission authorized by this section shall be ten percent (10% ) of such forfeiture or one thousand dollars ($1,000), whichever is less.
B. 40-11-205 Refund of forfeiture payments on reversal.
Money paid into the treasury by virtue of a judgment of the circuit or criminal court upon a forfeited recognizance shall be refunded to the party paying the same, upon the reversal of the judgment by the supreme court, on appeal or writ of error duly prosecuted. The commissioner of finance and administration shall give the party a warrant for the money upon the production of a certified copy of the judgment of reversal.
VII. Bail Agent’s Arrest Authority
A. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 1-- Admission to Bail 40-11-133 Arrest of defendant by bail bondsman or other authorized person.
1. For the purpose of § 40-11-132, the bail bondsman or surety may arrest the defendant on a certified copy of the undertaking, at any place in this state, or may, by a written authority endorsed on such copy, authorize another person to make the arrest.
2. After the payment of the forfeiture, the bail bondsman or surety may arrest the defendant on a certified copy of the capias, or may, by a written authority endorsed on such copy, authorize another person to make the arrest.
3. Any capias issued pursuant to a forfeit, whether the forfeit is conditional or final, shall remain in full force and effect until the defendant is apprehended and returned to the criminal justice system, and a disposition is entered in the defendant's case.
B. 40-11-134 Sheriff assisting bail bondsman or surety in arrest.
The bail bondsman or surety is also entitled to the aid of the sheriff of any county in this state in making the arrest, within the bounds of the sheriff's county, by producing a certified copy of the bail bond, and, in person or by agent, accompanying the officer to receive the person arrested.
VIII. Other Noteworthy Provisions
A. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 1-- Admission to Bail 40-11-128 Certain persons disqualified as bondsmen.
The following persons or classes shall not be bail bondsmen or agents of bail bondsmen or surety companies and shall not directly or indirectly receive any benefits from the execution of any bail bond: jailers, attorneys, police officers, convicted felons, committing magistrates, municipal or magistrate court judges, clerks or deputy clerks, sheriffs, deputy sheriffs and constables, and any person having the power to arrest or having anything to do with the control of federal, state, county or municipal prisoners.
B. TENNESSEE CODE ANNOTATED TITLE 40 CRIMINAL PROCEDURE CHAPTER 11 BAIL Part 3-- Professional Bondsmen 40-11-308 Guarantees of immunity prohibited.
It is unlawful for any professional bondsman, while acting on such bondsman's own behalf, or while acting for or through any third person or persons, or in concert with them, to solicit, demand, procure, exact, receive or collect any money or other thing of value or any other consideration, promise, favor or return of any character, directly or indirectly, from any person or persons, upon the agreement, promise, offer, representation, pretense or holding out the inducement, that such bondsman can or will:
1. Provide, furnish or guarantee to such person or persons, or to any person, persons or group of persons, immunity or protection from prosecution, arrest, investigation or indictment for any criminal offense or violation of law; or
2. Influence, persuade, "fix," order or direct any public official defined under §§ 38-3-102 and 38-3-103 as a "conservator of the peace," or any member of a grand or petit jury, or district attorney general or prosecuting officer, to provide or furnish such immunity or protection herein referred to, or to fail, neglect or omit to do or perform any act or official duty whatsoever toward the prosecution, suppression or prevention of criminal offenses or violations of law, and it is also unlawful for any professional bondsman to cause or procure any of these acts or things to be done.
IX. Noteworthy State Appellate Decisions
A. State v. Bengtson
2000 WL 1456926
Tennessee Criminal Appellate Court
October 2, 2000
1. FACTS: The evidence presented at trial shows that the defendant, a then thirty-five- year-old former Marine from Minnesota, moved in May of 1996 to Riceville, Tennessee, and was employed as a factory worker in Etowah. The defendant testified that he was also a bounty hunter as a "pasttime [sic], as a hobby." [FN1] He lived in a trailer home off County Road 701 not far from the residence of James Wyatt, one of the three victims. The defendant received a bounty hunting assignment from Bill Henry of Bill Henry Bonding to apprehend Vance Martin, a friend of James Wyatt.
2. CONCLUSION: Our review of the entire record leads us to conclude that the evidence was sufficient as a matter of law to convict the defendant of felony reckless endangerment of Katherine Martin, and we, therefore, affirm the conviction. Having also concluded that the defendant could legally be convicted of only one count of felony reckless endangerment, the remaining two convictions are vacated. State v. Robinson
2000 WL 1211316
Tennessee Criminal Appellate Court
August 28, 2000
The state appeals the trial court's exoneration of a bond forfeiture taken against AA Bonding Company. The trial court exonerated the bonding company of the entire bond amount of $8,000, even though the forfeiture was final and the full amount had been paid to the trial court clerk. Concluding that Tenn.Code Annotated section 40-11-204(a) authorizes the action of the trial court and that the record reflects no abuse of the trial court's discretion, even though the trial court granted the exoneration via an $8,000 credit against AA Bonding's future forfeitures in Anderson County, we affirm the trial court's order to grant exoneration; however, we reverse as to the amount of, and the manner of effectuating the refund.
C. State v. Melton
1998 WL 113997
Tennessee Criminal Appellate Court
March 12, 1998
Liberty Bail Bond Company ("Liberty") was the surety on a $750.00 appearance bond for Roger Martin in Bartlett City Court. Martin failed to appear at a scheduled court date. Liberty Bail Bond filed a petition for exoneration of surety in the Shelby County Criminal Court. After a hearing, the court denied the motion. Liberty appeals. The sole issue for our review is whether the trial court abused its discretion in denying the petition. The judgment of the trial court is affirmed.
D. State v. Shredeh
909 S.W.2d 833,br>
Tennessee Criminal Appellate
A petition for remission of forfeited bond was only to be granted in the most extreme cases, such as where the sureties cannot produce the principal on account of his death or some other condition of affairs which make it equally impossible for them to surrender him, and a petition based solely on good faith diligent efforts to recapture was denied.
E. State v. Frankgos
114 Tenn. 76
85 S.W. 79
Relief may be granted under this section, after final judgment, and thus until payment, the sureties have an inducement to continue their efforts to apprehend the fugitive.
X. Bounty Hunter Provisions
See II.C. and VII above.