BILL REQ. #:  H-3546.1 

Read first time 01/13/12.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to bail for felony offenses; amending RCW 10.19.090, 10.19.100, 10.19.160, 18.185.010, 18.185.040, 18.185.070, 18.185.100, and 18.185.110; and adding a new section to chapter 10.19 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 10.19.090 and 1986 c 322 s 2 are each amended to read as follows:
     In criminal cases where a recognizance for the appearance of any person, either as a witness or to appear and answer, shall have been taken and a default entered, the recognizance shall be declared forfeited by the court, and at the time of adjudging such forfeiture said court shall enter judgment against the principal and sureties named in such recognizance for the sum therein mentioned, and execution may issue thereon the same as upon other judgments. If the surety is not notified by the court in writing of the unexplained failure of the defendant to appear within ((thirty)) fourteen calendar days of the date for appearance, then the forfeiture shall be null and void and the recognizance exonerated.

Sec. 2   RCW 10.19.100 and 1891 c 28 s 86 are each amended to read as follows:
     The parties, or either of them, against whom such judgment may be entered in the superior or supreme courts, may stay said execution for sixty days from the date of the notification by the court by giving a bond with two or more sureties, to be approved by the clerk, conditioned for the payment of such judgment at the expiration of sixty days, unless the same shall be vacated before the expiration of that time.

Sec. 3   RCW 10.19.160 and 1986 c 322 s 5 are each amended to read as follows:
     (1) The surety on the bond may return a person to custody ((a person)) for good cause in a criminal case under the surety's bond if the surrender is accompanied by a notice of forfeiture or a notarized affidavit specifying the reasons for the surrender. If, upon motion by a party to the bail transaction, a court determines that good cause does not exist for the surety to surrender a person, the surety shall return the premium paid by, or on behalf of, the person, as well as any recovery fee. Good cause for surrender includes, but is not limited to, a substantial increase in the likelihood of the risk of flight, violation of a court order, failure to appear, or the concealment or intentional misrepresentation of information by the person, provided that good cause does not include failure to make timely payments to the surety for the bond premium. The surrender shall be made to the ((facility in which the person was originally held in custody or the)) county or city jail affiliated with the court issuing the warrant resulting in bail.
     (2) A violation of this section amounts to unprofessional conduct under RCW 18.185.110.

NEW SECTION.  Sec. 4   A new section is added to chapter 10.19 RCW to read as follows:
     The presiding judge of a court shall notify the administrative office of the courts when the court revokes or reinstates the justification or certification of a bail bond agent to post bonds in the court. The notice to the administrative office of the courts must include the reasons for the revocation or reinstatement. Upon receiving the notification, the administrative office of the courts shall notify superior courts and courts of limited jurisdiction statewide. No civil liability may be imposed by any court on the administrative office of the courts or its employees under this section except upon proof of bad faith or willful or wanton misconduct or gross negligence.

Sec. 5   RCW 18.185.010 and 2004 c 186 s 2 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Department" means the department of licensing.
     (2) "Director" means the director of licensing.
     (3) "Commission" means the criminal justice training commission.
     (4) "Collateral or security" means property of any kind given as security to obtain a bail bond.
     (5) "Bail bond agency" means a business that sells and issues corporate surety bail bonds or that provides security in the form of personal or real property to ensure the appearance of a criminal defendant before the courts of this state or the United States.
     (6) "Qualified agent" means an owner, sole proprietor, partner, manager, officer, or chief operating officer of a corporation who meets the requirements set forth in this chapter for obtaining a bail bond agency license.
     (7) "Bail bond agent" means a person who is employed by a bail bond agency and engages in the sale or issuance of bail bonds, but does not mean a clerical, secretarial, or other support person who does not participate in the sale or issuance of bail bonds.
     (8) "Licensee" means a bail bond agency, a bail bond agent, a qualified agent, or a bail bond recovery agent.
     (9) "Branch office" means any office physically separated from the principal place of business of the licensee from which the licensee or an employee or agent of the licensee conducts any activity meeting the criteria of a bail bond agency.
     (10) "Bail bond recovery agent" means a person who is under contract with a bail bond agent to receive compensation, reward, or any other form of lawful consideration for locating, apprehending, and surrendering a fugitive criminal defendant for whom a bail bond has been posted. "Bail bond recovery agent" does not include a general authority Washington peace officer or a limited authority Washington peace officer.
     (11) (("Contract" means a written agreement between a bail bond agent or qualified agent and a bail bond recovery agent for the purpose of locating, apprehending, and surrendering a fugitive criminal defendant in exchange for lawful consideration.
     (12))) "Planned forced entry" means a premeditated forcible entry into a dwelling, building, or other structure without the occupant's knowledge or consent for the purpose of apprehending a fugitive criminal defendant subject to a bail bond. "Planned forced entry" does not include situations where, during an imminent or actual chase or pursuit of a fleeing fugitive criminal defendant, or during a casual or unintended encounter with the fugitive, the bail bond recovery agent forcibly enters into a dwelling, building, or other structure without advanced planning.
     (12) "Property bond" means a bail bond executed for compensation the security for which is real property, tangible personal property, or other assets.
     (13) "Property bond agency" means a bail bond agency that issues property bonds.
     (14) "Surety bond" means a bail bond that is guaranteed by an insurance company that has been qualified to transact surety insurance business in Washington state by the insurance commissioner.
     (15) "Surety bond agency" means a bail bond agency that issues only surety bonds.

Sec. 6   RCW 18.185.040 and 2004 c 186 s 4 are each amended to read as follows:
     (1) Applications for licenses required under this chapter shall be filed with the director on a form provided by the director. The director may require any information and documentation that reasonably relates to the need to determine whether the applicant meets the criteria, including fingerprints.
     (2) Applicants for licensure or endorsement as a bail bond agent or a bail bond recovery agent must complete a records check through the Washington state patrol criminal identification system and through the federal bureau of investigation at the applicant's expense. Such record check shall include a fingerprint check using a Washington state patrol approved fingerprint card. The Washington state patrol shall forward the fingerprints of applicants to the federal bureau of investigation for a national criminal history records check. The director may accept proof of a recent national crime information center/III criminal background report or any national or interstate criminal background report in addition to fingerprints to accelerate the licensing and endorsement process. The director is authorized to periodically perform a background investigation of licensees to identify criminal convictions subsequent to the renewal of a license or endorsement.

Sec. 7   RCW 18.185.070 and 1993 c 260 s 8 are each amended to read as follows:
     (1) No bail bond agency license may be issued under the provisions of this chapter unless the qualified agent files with the director a bond, executed by a surety company authorized to do business in this state, in the sum of ten thousand dollars for a surety agency and one hundred thousand dollars for a property bond agency conditioned to recover against the agency and its servants, officers, agents, and employees by reason of its violation of the provisions of RCW 18.185.100. The bond shall be made payable to the state of Washington, and anyone so injured by the agency or its servants, officers, agents, or employees may bring suit upon the bond in any county in which jurisdiction over the licensee may be obtained. The suit must be brought not later than two years after the failure to return property in accordance with RCW 18.185.100. If valid claims against the bond exceed the amount of the bond or deposit, each claimant shall be entitled only to a pro rata amount, based on the amount of the claim as it is valid against the bond, without regard to the date of filing of any claim or action.
     (2) Every licensed bail bond agency must at all times maintain on file with the director the bond required by this section in full force and effect. Upon failure by a licensee to do so, the director shall suspend the licensee's license and shall not reinstate the license until this requirement is met.
     (3) In lieu of posting a bond, a qualified surety agent may deposit ten thousand dollars in an interest-bearing account((, ten)) and a qualified property bond agent may deposit one hundred thousand dollars in an interest-bearing account.
     (4) The director may waive the bond requirements of this section, in his or her discretion, pursuant to adopted rules.

Sec. 8   RCW 18.185.100 and 2004 c 186 s 8 are each amended to read as follows:
     (1)(a) Every qualified agent shall keep adequate records for three years of all collateral and security received, all trust accounts required by this section, and all bail bond transactions handled by the bail bond agency, as specified by rule. The records shall be open to inspection without notice by the director or authorized representatives of the director.
     (b) The department may audit licensee trust accounts every two years unless the licensee submits a financial report prepared by a certified public accountant to the department on an annual basis.
     (2) Every qualified agent who receives collateral or security is a fiduciary of the property and shall keep adequate records for three years of the receipt, safekeeping, and disposition of the collateral or security. Every qualified agent shall maintain a trust account in a federally insured financial institution located in this state. All moneys, including cash, checks, money orders, wire transfers, and credit card sales drafts, received as collateral or security or otherwise held for a bail bond agency's client shall be deposited in the trust account not later than the third banking day following receipt of the funds or money. A qualified agent shall not in any way encumber the corpus of the trust account or commingle any other moneys with moneys properly maintained in the trust account. Each qualified agent required to maintain a trust account shall report annually under oath to the director the account number and balance of the trust account, and the name and address of the institution that holds the trust account, and shall report to the director within ten business days whenever the trust account is changed or relocated or a new trust account is opened.
     (3) Whenever a bail bond is exonerated by the court, the qualified agent shall, within five business days after written notification of exoneration, return all collateral or security to the person entitled thereto.
     (4) Records of contracts for fugitive apprehension must be retained by the bail bond agent and by the bail bond recovery agent for a period of three years.

Sec. 9   RCW 18.185.110 and 2008 c 105 s 4 are each amended to read as follows:
     In addition to the unprofessional conduct described in RCW 18.235.130, the following conduct, acts, or conditions constitute unprofessional conduct:
     (1) Violating any of the provisions of this chapter or the rules adopted under this chapter;
     (2) Failing to meet the qualifications set forth in RCW 18.185.020, 18.185.030, and 18.185.250;
     (3) Knowingly committing, or being a party to, any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme, or device whereby any other person lawfully relies upon the word, representation, or conduct of the licensee. However, this subsection (3) does not prevent a bail bond recovery agent from using any pretext to locate or apprehend a fugitive criminal defendant or gain any information regarding the fugitive;
     (4) Assigning or transferring any license issued pursuant to the provisions of this chapter, except as provided in RCW 18.185.030 or 18.185.250;
     (5) Conversion of any money or contract, deed, note, mortgage, or other evidence of title, to his or her own use or to the use of his or her principal or of any other person, when delivered to him or her in trust or on condition, in violation of the trust or before the happening of the condition; and failure to return any money or contract, deed, note, mortgage, or other evidence of title within thirty days after the owner is entitled to possession, and makes demand for possession, shall be prima facie evidence of conversion;
     (6) Entering into a contract, including a general power of attorney, with a person that gives the bail bond agent full authority over the person's finances, assets, real property, or personal property;
     (7) Failing to keep records, maintain a trust account, or return collateral or security, as required by RCW 18.185.100;
     (((7))) (8) Any conduct in a bail bond transaction which demonstrates bad faith, dishonesty, or untrustworthiness;
     (((8))) (9) Violation of an order to cease and desist that is issued by the director under chapter 18.235 RCW;
     (((9))) (10) Wearing, displaying, holding, or using badges not approved by the department;
     (((10))) (11) Making any statement that would reasonably cause another person to believe that the bail bond recovery agent is a sworn peace officer;
     (((11))) (12) Failing to carry a copy of the contract or to present a copy of the contract as required under RCW 18.185.270(1);
     (((12))) (13) Using the services of an unlicensed bail bond recovery agent or using the services of a bail bond recovery agent without issuing the proper contract;
     (((13))) (14) Misrepresenting or knowingly making a material misstatement or omission in the application for a license;
     (((14))) (15) Using the services of a person performing the functions of a bail bond recovery agent who has not been licensed by the department as required by this chapter;
     (((15))) (16) Performing the functions of a bail bond recovery agent without being both (a) licensed under this chapter or supervised by a licensed bail bond recovery agent under RCW 18.185.290; and (b) under contract with a bail bond agent;
     (((16))) (17) Performing the functions of a bail bond recovery agent without exercising due care to protect the safety of persons other than the defendant and the property of persons other than the defendant; ((or
     (17))) (18) Using a dog in the apprehension of a fugitive criminal defendant;
     (19) Surrendering a person without good cause pursuant to RCW 10.19.160; or
     (20) Failing to reasonably disclose, when requested by law enforcement, information within the bail agent's possession concerning the location of a fugitive criminal defendant.