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Regular Session, 2014
SENATE BILL NO. 439
BY SENATOR CLAITOR
CRIMINAL PROCEDURE. Provides relative to bail. (1/1/15)
AN ACT1
To amend and reenact Code of Criminal Procedure Articles 311, 322(A) and (C), 345, 349,2
349.1, 349.2, 349.3, 349.4, 349.5, 349.6, 349.7, 349.8, and 349.9, R.S. 15:85, and3
R.S. 22:1441(A), (C)(2), and (D), relative to bail; to provide relative to definitions;4
to provide relative to authority to fix bail; to provide relative to surrender of the5
defendant; to provide relative to judgments of bond forfeiture and appeals; and to6
provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. Code of Criminal Procedure Articles 311, 322(A) and (C), 345, 349,9
349.1, 349.2, 349.3, 349.4, 349.5, 349.6, 349.7, 349.8, and 349.9 are hereby amended and10
reenacted to read as follows: 11
Art. 311. Bail defined Definitions12
In this Title:13
(1) "Bail" is the security given by a person to assure his a defendant's14
appearance before the proper court whenever required.15
(2) "Appearance" is a personal appearance before the court, or a16
designee thereof, before which the charges are pending.17 SB NO. 439
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(3) "Surrender" is the detention of the defendant by the officer originally1
charged with his detention as upon the original commitment at the request of2
the surety. When the surety has requested the surrender of the defendant, the3
officer shall acknowledge the surrender by a certificate of surrender signed by4
him and delivered to the surety. The surety shall pay a fee of twenty-five dollars5
to the officer charged with the defendant's detention for recalling the capias,6
accepting the surrender, processing the paperwork, and giving the surety a7
certificate of surrender.8
(4) "Constructive surrender" is the detention of the defendant in another9
parish of the state of Louisiana or a foreign jurisdiction when the surety has10
provided the court before which the charges are pending proof of the11
defendant's current incarceration, and has paid the reasonable cost of returning12
the defendant to the jurisdiction where the warrant was issued. A letter of13
incarceration issued by the officer charged with the detention of the defendant14
verifying that the defendant is incarcerated shall be deemed adequate proof of15
the incarceration of the defendant. The surety shall pay a fee of twenty-five16
dollars to the officer charged with the defendant's detention for the letter17
verifying the incarceration.18
* * *19
Art. 322. Declaration of residence by defendant and surety; social security number;20
waiver of notice21
A. The defendant and personal surety signing a bail bond shall write the22
address at which each can be served sent notice under their respective signatures and23
the last four digits of their social security number. The defendant and his counsel24
may, by joint affidavit filed of record in the proceeding in which the bond was given,25
appoint his counsel as his agent for service of notice to appear to whom notice to26
appear can be sent. The appointment shall be conclusively presumed to continue27
until the defendant files of record an affidavit revoking or changing the appointment.28
The affidavit shall include the address at which to serve to which notice can be sent29 SB NO. 439
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to his counsel. A commercial surety shall inscribe its proper mailing address on the1
face of the power of attorney used to execute the bond. The agent or bondsman2
posting the bond shall write his proper mailing address under his signature. A bail3
bond shall not be set aside because of the invalidity of the information required by4
this Article or for the failure to include the information required by the provisions5
of this Article.6
* * *7
C. By signing the bail bond, the defendant and his surety waive any right to8
notice, including actual notice under Code of Criminal Procedure Article9
579(A)(3), except that the notice provided for in Articles 344 and 349.3 349.1,10
349.2, and 349.6.11
* * *12
Art. 345. Surrender of defendant Discharge of the obligation13
A. A surety may surrender the defendant or the defendant may surrender14
himself, in open court or to the officer charged with his detention, at any time prior15
to forfeiture or within the time allowed by law for setting aside a judgment of16
forfeiture of the bail bond A surety may surrender the defendant at any time17
except as otherwise provided by law. For the purpose of surrendering the18
defendant, the surety may arrest him. Upon surrender of the defendant, the officer19
shall detain the defendant in his custody as upon the original commitment and shall20
acknowledge the surrender by a certificate signed by him and delivered to the surety.21
The officer shall retain and forward a copy of the certificate to the court. After22
compliance with the provisions of Paragraph F of this Article, the surety shall be23
fully and finally discharged and relieved, as provided for in Paragraphs C and D of24
this Article, of all obligations under the bond retain and forward a copy of the25
certificate to the court. Upon verified surrender of the defendant prior to one26
hundred eighty days after the notice of warrant of arrest was sent, the surety27
shall be fully and finally discharged and relieved of all obligations under the28
bond.29 SB NO. 439
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B. If the defendant is incarcerated by the officer originally charged with his1
detention at any time prior to forfeiture or within the time allowed by law for setting2
aside a judgment for forfeiture of the bail bond, the surety may apply for and receive3
from any officer in charge of any facility in the state of Louisiana or a foreign4
jurisdiction charged with the detention of the defendant a letter verifying that the5
defendant is incarcerated, but only after the surety verifies to the satisfaction of the6
officer charged with the detention of the defendant as to the identity of the defendant.7
After compliance with the provisions of Paragraph F of this Article, the surety shall8
be fully and finally discharged and relieved, as provided for in Paragraphs C and D9
of this Article, of all obligations under the bond A surety may constructively10
surrender the defendant within one hundred eighty days of when the notice of11
warrant of arrest was sent. After the constructive surrender of the defendant,12
the surety shall be fully and finally discharged and relieved of all obligations13
under the bail bond.14
C. When a surety receives either a certificate of surrender provided for in15
Paragraph A of this Article or a letter of verification as provided for in Paragraph B16
of this Article, the surety shall pay a fee of twenty-five dollars to the officer charged17
with the defendant's detention for recalling the capias, accepting the surrender or18
verifying the incarceration, processing the paperwork, and giving the surety a19
certificate of surrender or a letter of verification of incarceration issued pursuant to20
this Article after compliance with the provisions of Paragraph F of this Article21
releasing him from his obligation under the defendant's bond.22
D. If during the period allowed for the surrender of the defendant, the23
defendant is found to be incarcerated in another parish of the state of Louisiana or24
a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the25
following conditions are met:26
(1) The defendant or his sureties file a motion within the period allowed for27
the surrender of the defendant. The motion shall be heard summarily.28
(2) The sureties of the defendant provide the court adequate proof of29 SB NO. 439
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incarceration of the defendant, or the officer originally charged with his detention1
verifies his incarceration. A letter of incarceration issued pursuant to this Article2
verifying that the defendant was incarcerated within the period allowed for the3
surrender of the defendant at the time the defendant or the surety files the motion,4
shall be deemed adequate proof of the incarceration of the defendant.5
(3) The defendant's sureties pay the officer originally charged with the6
defendant's detention, the reasonable cost of returning the defendant to the officer7
originally charged with the defendant's detention prior to the defendant's return.8
E. C. At any time prior to forfeiture or within the time allowed by law for9
setting aside a judgment for forfeiture of the bail bond the defendant's failure to10
appear or within one hundred eighty days after the notice of warrant of arrest11
is sent, the surety may present to the court a certificate of death naming the12
defendant as the deceased party. The certificate shall be under seal of the authority13
confirming the defendant's death. Thereafter, the surety shall be fully and finally14
discharged and relieved of any and all obligation under the bond.15
F. When the defendant has been surrendered in conformity with this Article16
or a letter of verification of incarceration has been issued to the surety as provided17
for in this Article, the court shall, upon presentation of the certificate of surrender or18
the letter of verification of incarceration, order that the surety be exonerated from19
liability on his bail undertaking and shall order any judgment of forfeiture set aside.20
D. At any time during which there is an active arrest warrant in the21
proceeding for which the bond was posted, the surety or bail bond producer22
who posted the bond may file an affidavit requesting the defendant be23
remanded and surrendered upon his appearance before the court where the24
charges are pending. The affidavit shall meet all the requirements set forth in25
R.S. 22:1585 and shall be filed before the court in which the charges are26
pending. A copy of the affidavit shall be provided to the prosecuting attorney.27
Upon the appearance of the defendant within one hundred eighty days of the28
date on which the notice of warrant of arrest was sent, the court may either29 SB NO. 439
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grant or deny the relief requested. If the court grants the relief requested, then1
it shall remand the defendant and relieve the surety of all obligations under the2
bond. If the court denies the relief requested, then the surety may seek3
supervisory review.4
G. E. During the period provided for surrendering the defendant At any time5
after the defendant's failure to appear and the issuance of the warrant of arrest,6
the surety may request that the officer originally charged with the detention of a7
felony defendant place the name of the felony defendant into the National Crime8
Information Center registry. The surety shall pay to that officer a fee of twenty-five9
dollars for processing the placement. If, after payment of the twenty-five-dollar fee,10
the name of the defendant is removed from the National Crime Information Center11
registry without cause during the period provided for surrendering the defendant, the12
surety shall be relieved of all obligations under the bond the period for filing a rule13
to show cause under Code of Criminal Procedure Article 349.2 shall be14
suspended until the name of the defendant is returned to the registry.15
H. F. In the case of any fee required under the provisions of this Article, the16
officer charged with the defendant's detention shall provide the surety with a receipt17
indicating the amount of the fee collected, the name of the defendant, the purpose of18
the fee collected, the date and time the defendant was surrendered, the name of the19
person from whom the fee was collected, and information sufficient to identify any20
applicable bond.21
I. In addition to and notwithstanding any other provision of law, a surety may22
seek an extension of time to surrender a defendant, or have the judgment of bond23
forfeiture set aside by filing a motion in the criminal court of record and after24
contradictory hearing with the district attorney and with proof satisfactory to the25
court that a fortuitous event has occurred and that the event has made it impossible26
to perform as required under the contract. A motion seeking relief pursuant to this27
Paragraph must be filed within three hundred sixty-six days from the date of the28
fortuitous event, excluding legal delays. The court in its discretion may do any of the29 SB NO. 439
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following:1
(1) Set aside the forfeiture or grant the nullity.2
(2) Grant an extension of up to three hundred sixty-six days from the3
expiration of the initial time period allowed for the surrender of the defendant from4
the date of the mailing of proper notice of bond forfeiture. If the court grants that5
extension, judicial interest shall be suspended during that additional time period.6
(3) Deny the relief.7
J. Regarding bail bond forfeitures for which the notices of bond forfeiture8
judgments were mailed between February 28, 2005, and September 21, 2005,9
inclusive, in addition to and notwithstanding any other provision of law, the10
defendant or the surety may seek an extension of time to surrender a defendant or to11
have a judgment of bond forfeiture set aside by filing a motion in the criminal court12
record and after contradictory hearing with the district attorney and with proof13
satisfactory to the discretion of the court that after reasonable effort to recover the14
wanted fugitive, the location and return of the wanted fugitive was made impossible15
by damage sustained during and immediately following Hurricane Katrina or16
Hurricane Rita. Such motion must be filed within three hundred sixty-six days of the17
date of the storm, the effect of which gives rise to the request for relief excluding18
legal delays. A motion seeking relief pursuant to this Paragraph must be filed within19
three hundred sixty-six days from the date of the fortuitous event, excluding legal20
delays. The court in its discretion may do any of the following:21
(1) Set aside the forfeiture or grant the nullity.22
(2) Grant an extension of time up to three hundred sixty-six days from the23
expiration of the initial time period allowed for the surrender of the defendant from24
the date of the mailing of proper notice of bond forfeiture. If the court grants that25
extension, judicial interest shall be suspended during that additional time period.26
(3) Deny the relief.27
* * *28
Art. 349. Forfeiture procedure Failure to appear; issuance of arrest warrant29 SB NO. 439
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A. A bond that secures the appearance of a person before a court in the state1
of Louisiana shall be forfeited and collected as provided by law.2
B. The court shall immediately issue a warrant for the arrest of the person3
failing to appear and order a judgment decreeing the forfeiture of the bond and4
against the defendant and his sureties in solido for the full amount of the bond.5
C. A bail agent who represents the surety as an insurance agent shall not be6
solidarily liable for the forfeiture of a bond against the defendant and his sureties.7
In the event that a bail agent who represents the surety as an insurance agent is held8
solidarily liable, then that bail agent may request to be released from the judgment,9
and the release of the bail agent shall have no effect on the judgment decreeing the10
forfeiture of the bond against the defendant and his sureties.11
If at the time fixed for appearance a defendant who was properly noticed12
fails to appear as required by the court, the court, on its own motion or on13
motion of the prosecuting attorney, shall immediately and forthwith issue a14
warrant for the arrest of the defendant.15
Art. 349.1. Failure to appear; issuance of arrest warrant Notice of warrant of arrest16
If at the time fixed for appearance the defendant fails to appear as required17
by the court, the judge may, or shall on motion of the prosecuting attorney, issue a18
warrant for the arrest of the defendant.19
After a warrant of arrest is issued, the clerk of court shall, within sixty20
days unless good cause is shown, send a "notice of warrant of arrest" to the21
prosecuting attorney. The notice shall also be sent by United States mail or22
electronic means to the defendant, the agent or bondsman, if any, and the23
personal surety. Notice shall be sent by electronic means or certified mail to the24
commercial surety. All notices shall be sent to the addresses provided pursuant25
to Code of Criminal Procedure Article 322 or an address registered with the26
Department of Insurance. The notice to the commercial surety shall include the27
power of attorney number used to execute the bail bond, but failure to include28
the power of attorney number shall not affect the validity or enforcement of any29 SB NO. 439
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resulting judgment. After sending the notice of warrant of arrest, the clerk of1
court shall execute an affidavit that notice was sent and place the affidavit in the2
record.3
Art. 349.2. Proof necessary at bond forfeiture hearing Period for filing rule to show4
cause5
A. Upon motion of the prosecuting attorney, and upon proof of the bail6
contract, the power of attorney if any, notice to the defendant and the surety as7
required by Article 344, and the defendant's failure to appear as required, a bond8
shall be forfeited and a judgment of bond forfeiture shall be signed.9
B. The judgment shall include the address and the last four digits of the social10
security number for the defendant and his sureties. A judgment of bond forfeiture11
shall not be set aside because of the invalidity of the information required by the12
provisions of this Article or for the failure to include the information required by this13
Article.14
If the defendant has not been surrendered, constructively surrendered,15
or appeared within one hundred eighty days since the notice of warrant of16
arrest was sent, the prosecuting attorney may file a rule to show cause17
requesting that a bond forfeiture judgment be rendered. The rule to show cause18
shall be mailed to the defendant and served on all other parties against whom19
a judgment is sought. The rule to show cause shall be set for contradictory20
hearing. The time period for filing a rule to show cause to obtain a judgment21
of bond forfeiture does not commence until after the notice of warrant of arrest22
is sent.23
Art. 349.3. Notice of judgment Proof necessary at rule to show cause24
A.(1) After entering the fact of the signing of the judgment of bond forfeiture25
in the court minutes, the clerk of court shall promptly mail notice of the signing of26
the judgment of bond forfeiture. The notice of the signing of the judgment shall be27
mailed by United States certified mail with return receipt affixed thereto to the28
defendant, the personal surety, the agent, or bondsman who posted the bond for the29 SB NO. 439
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commercial surety, and the commercial surety at the addresses designated in Article1
322 or an address registered with the Louisiana Department of Insurance. Notice to2
the commercial surety shall include the power of attorney number used to execute3
the bond without which the bond obligation of the commercial surety shall be4
suspended until the power of attorney number is supplied, provided the commercial5
surety provides notice to the clerk of court who mailed the notice to the surety of the6
failure to include such number in the notice by certified mail not later than thirty7
days following receipt of notice of the judgment. If the power of attorney number is8
not provided to the commercial surety within thirty days after the date of receipt by9
the clerk of court of the notice that it was not included in the notice of the judgment,10
the commercial surety shall be released from the bond obligation.11
(2) The defendant shall reimburse the clerk of court for postage and other12
costs incurred by the clerk to send the notice required in Paragraph A of this Article.13
B. After mailing the notice of the signing of the judgment of bond forfeiture,14
the clerk of court shall execute an affidavit of the mailing and place the affidavit and15
the return receipts in the record.16
C. Failure to mail notice of the signing of the judgment within sixty days17
after the defendant fails to appear shall release the sureties of all obligations under18
the bond.19
A. Upon proof at the contradictory hearing of the bail bond, the power20
of attorney, if any, notice to the defendant and the surety as required by Code21
of Criminal Procedure Article 349.1, and that more than one hundred eighty22
days have passed since the notice of the warrant of arrest was sent, the court23
shall forfeit the bail bond, and a judgment of bond forfeiture shall be entered.24
The judgment of bond forfeiture shall be issued against the defendant and his25
sureties in solido for the full amount of the bail. An exception of prematurity26
may be filed to raise the issue that the period for obtaining a bond forfeiture27
judgment has not run.28
B. A bail agent who represents the surety as an insurance agent shall not29 SB NO. 439
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be solidarily liable for the judgment of bond forfeiture against the defendant1
and his sureties. In the event that a bail agent who represents the surety as an2
insurance agent is held solidarily liable, then the bail agent may request to be3
released from the judgment, and the release of the bail agent shall have no effect4
on the judgment decreeing the forfeiture of the bond against the defendant and5
his sureties.6
C. The judgment of bond forfeiture shall include the address and the last7
four digits of the social security number of the defendant and the personal8
sureties. A judgment of bond forfeiture shall not be set aside because of the9
invalidity of the information required by the provisions of this Article or for the10
failure to include the information required by this Article.11
Art. 349.4. Recordation of judgment Interruption of the period for obtaining a12
bond forfeiture judgment13
A. After mailing notice of the signing of the judgment of bond forfeiture, the14
district attorney shall cause the judgment to be recorded in every parish in which the15
recordation may be proper. Every such recordation shall be without cost and shall16
operate as a judicial mortgage against the defendant and all his sureties.17
B. Prior to recordation, the district attorney shall verify the inclusion of18
information on the judgment, namely, the address and the last four digits of the19
social security number for the defendant and his sureties. Third parties may rely upon20
the accuracy of the information required by the provisions of this Article for21
purposes of distinguishing the identity of the defendant and his sureties. Any22
judgment of bond forfeiture containing inaccurate information required by the23
provisions of this Article shall be deemed ineffective as a judicial mortgage to third24
parties who rely upon that information.25
An appearance by the defendant shall interrupt the period for obtaining26
a bond forfeiture judgment. An appearance by the defendant does not relieve27
the surety of its bond obligations.28
Art. 349.5. Nullity actions, summary proceedings, and cumulative actions29 SB NO. 439
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Nonforfeiture situations1
A.(1) The defendant and his sureties shall be entitled to assert defenses and2
actions in nullity by use of summary proceedings in the criminal matter before the3
trial court that issued the judgment of bond forfeiture within sixty days after the date4
of mailing the notice of the signing of the judgment of bond forfeiture. Any summary5
proceeding brought by the defendant or his sureties within the sixty-day period shall6
be determined by the court within one hundred eighty days of the date of mailing the7
notice of the signing of the judgment of bond forfeiture.8
(2) Nullity actions pursuant to Code of Civil Procedure Article 2001 et seq.9
not filed within the sixty days provided for filing summary proceedings shall be10
brought by the use of ordinary civil proceedings.11
B. The defendant and his sureties shall be entitled to assert defenses pursuant12
to Articles 345 and 349.9 by use of summary proceedings in the criminal matter13
before the trial court that issued the judgment of bond forfeiture within one hundred14
eighty days after the date of mailing the notice of the signing of the judgment of15
bond forfeiture.16
C. A surety, in an action in nullity or to set aside a bond forfeiture, may17
cumulate two or more cases that are similarly situated by the facts and legal issues18
as one cumulative action. The actions cumulated shall be mutually consistent and19
employ the same form of procedure. The action may be by summary proceedings in20
the section of the criminal court where those cases are pending, or by an ordinary21
civil proceeding when the action is within the jurisdiction of the court and in the22
proper venue. The surety has the burden of proving that the cumulation of the actions23
is appropriate and in the interest of justice.24
D. If the court lacks jurisdiction or venue is improper as to one of the actions25
cumulated, that action shall be dismissed. If the cumulation is improper for any other26
reason, the court may do either of the following:27
(1) Order separate trials or hearings of the actions.28
(2) Order the moving party to elect which action shall proceed and to amend29 SB NO. 439
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the pleadings to delete all allegations relating to the discontinued action. The penalty1
for noncompliance with an order to amend is a dismissal of the entire proceeding.2
A. A judgment decreeing the forfeiture of a bail bond shall not be3
rendered if it is shown to the satisfaction of the court at the hearing on a rule to4
show cause, that the defendant, principal in the bond, failed to appear in court5
because of any of the following:6
(1) The defendant was serving in the armed forces of the United States.7
(2) The defendant was a member of the Louisiana National Guard called8
to duty pursuant to R.S. 29:7.9
(3) The defendant was prevented from appearing due to state of10
emergency declared by the governor.11
B. There shall be a rebuttable presumption that the calling of the12
defendant to duty pursuant to R.S. 29:7 prevented the defendant from attending13
court.14
Art. 349.6. Appeals Notice of judgment15
A. The defendant and his sureties shall have the right to a suspensive appeal16
from the judgment of bond forfeiture, which shall be perfected within sixty days after17
the date of mailing the notice of the signing of the judgment. The security for the18
appeal shall be equal to the bail obligation.19
B. The defendant and his sureties shall have the right to a devolutive appeal20
from the judgment of bond forfeiture, which shall be perfected within one hundred21
twenty days after the date of mailing the notice of the signing of the judgment.22
C. All appeals shall be proper in the court having appellate jurisdiction over23
the court issuing the judgment of bond forfeiture.24
A. Notice of the signing of the judgment of bond forfeiture shall be25
mailed by the clerk of court to the counsel of record for each party, and to each26
party not represented by counsel, pursuant to Code of Civil Procedure Article27
1913.28
B. The clerk shall file a certificate in the record showing the date on29 SB NO. 439
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which the notice of the signing of the judgment was mailed.1
Art. 349.7. Enforcement of judgment Recordation of judgment2
A.(1) No judgment of bond forfeiture rendered on or after August 15, 1997,3
shall be enforced until after the expiration of one hundred ninety days after the date4
of mailing the notice of the signing of the judgment of bond forfeiture for bonds that5
have a face value under fifty thousand dollars, or until after the expiration of two6
hundred eighty days for bonds that have a face value of fifty thousand dollars or7
more.8
(2) The court may provide by court rule for the filing of an offset claim9
against the principal with the secretary of the Department of Revenue, in accordance10
with R.S. 47:299.1 et seq.11
(3) If, after the expiration of one hundred ninety days after the date of mailing12
the notice of the signing of the judgment of bond forfeiture for bonds that have a face13
value under fifty thousand dollars, or after the expiration of two hundred eighty days14
for bonds that have a face value of fifty thousand dollars or more, a judgment of15
bond forfeiture against a commercial surety company has not been suspensively16
appealed or satisfied, or if proceedings, other than a devolutive appeal challenging17
the bond forfeiture have not been timely filed, the prosecuting attorney may either18
file a rule to show cause with the commissioner of insurance in accordance with R.S.19
22:1441 or collect the judgment in the same manner as a civil judgment.20
B. The timely filing of a suspensive appeal shall suspend the enforcement of21
the judgment of the bond forfeiture.22
C. A judgment of bond forfeiture shall not be set aside because of the23
invalidity of the information required by the provisions of this Article include the24
information required by the provisions of this Article.25
A. After mailing notice of the signing of the judgment of bond forfeiture,26
the district attorney may cause the judgment to be recorded in every parish in27
which the recordation may be proper. Every such recordation shall be without28
cost and shall operate as a judicial mortgage against the defendant and all his29 SB NO. 439
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sureties.1
B. Prior to recordation, the district attorney shall verify the inclusion of2
information on the judgment, namely, the address and the last four digits of the3
social security number of the defendant and his sureties. Third parties may rely4
upon the accuracy of the information required by the provisions of this Article5
for purposes of distinguishing the identity of the defendant and his sureties. Any6
judgment of bond forfeiture containing inaccurate information required by the7
provisions of this Article shall be deemed ineffective as a judicial mortgage to8
third parties who rely upon that information.9
Art. 349.8. Satisfaction of judgment of bond forfeiture Appeals10
A.(1) For bonds that have a face value under fifty thousand dollars, a11
judgment forfeiting the appearance bond shall at any time, within one hundred eighty12
days after the date of mailing the notice of the signing of the judgment of bond13
forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the14
appearance of the defendant. The surrender of the defendant also relieves the surety15
of all obligations under the bond and the judgment.16
(2) A judgment forfeiting the appearance bond rendered according to this17
Title shall at any time, within ten days of the one-hundred-eighty-day period18
provided to surrender the defendant, be satisfied by the payment of the amount of the19
bail obligation without incurring any interest, costs, or fees.20
B.(1) For bonds with a face value of fifty thousand dollars or more, a21
judgment forfeiting the appearance bond shall, at any time within one hundred eighty22
days after the date of mailing the notice of the signing of the judgment of bond23
forfeiture, be fully satisfied and set aside upon the surrender or the appearance of the24
defendant. The appearance of the defendant shall satisfy the judgment, and the25
surrender shall relieve the surety of all obligations under the bond and the judgment.26
A judgment forfeiting the appearance bond shall, at any time within ten days after27
the expiration of the period provided to surrender the defendant, be fully satisfied by28
the payment of the amount of the bail obligation without incurring any interest, costs,29 SB NO. 439
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or fees.1
(2) A judgment forfeiting the appearance bond shall, at any time more than2
one hundred eighty days but within two hundred seventy days after the date of3
mailing the notice for the signing of the judgment of bond forfeiture, be satisfied and4
set aside upon the surrender or the appearance of the defendant and the payment in5
cash of ten percent of the face amount of the bond. The surrender and the payment6
in cash of ten percent of the face amount of the bond shall satisfy the judgment and7
shall relieve the surety of all obligations under the bond and the judgment. A8
judgment forfeiting the appearance bond shall, at any time within ten days after the9
expiration of the two-hundred-seventy-day period provided to surrender the10
defendant, be fully satisfied by the payment of the amount of the bail obligation11
without incurring any interest, costs, or fees.12
The rights of appeal of a bond forfeiture judgment shall be governed by13
Code of Civil Procedure Article 2081 et seq.14
Art. 349.9. Nonforfeiture situations Enforcement of judgment15
A. A judgment decreeing the forfeiture of an appearance bond shall not be16
rendered if it is shown to the satisfaction of the court that the defendant, principal in17
the bond, is prevented from attending because of any of the following:18
(1) He has a physical disability, illness, or injury.19
(2) He is being detained in the jail or penitentiary of another jurisdiction.20
(3) He is serving in the armed forces of the United States.21
(4) He is a member of the Louisiana National Guard called to duty pursuant22
to R.S. 29:7. This provision does not apply to appearances in a state military court.23
B. An affidavit by the jailer, warden, or other responsible officer where the24
principal is detained, or commanding officer, attesting to the cause of the failure to25
appear of the defendant shall be considered adequate proof of the inability to appear26
by the defendant.27
C. If a judgment of bond forfeiture is rendered while the defendant is28
prevented from appearing for any reason enumerated in this Article, and if the29 SB NO. 439
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defendant or his sureties file a motion to set aside the judgment of bond forfeiture1
within one hundred eighty days after the date of the mailing the notice of the signing2
of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that3
the defendant was prevented from attending for any cause enumerated in this Article,4
the court shall declare the judgment of bond forfeiture null and void.5
After the delay for filing a suspensive appeal has elapsed, the prosecuting6
attorney may file a rule to show cause with the commissioner of insurance in7
accordance with R.S. 22:1441 or collect the judgment in the same manner as a8
civil judgment.9
Section 2. R.S. 15:85 is hereby amended and reenacted to read as follows:10
§85. Failure to satisfy judgment of bond forfeiture11
A. If a judgment of bond forfeiture rendered after June 22, 1993, against a12
commercial surety company has not been satisfied within two hundred ten days after13
the date of mailing the notice of the signing of the judgment of bond forfeiture for14
bonds that have a face value under fifty thousand dollars, or within four hundred15
days from mailing the notice of the signing of the judgment of bond forfeiture for16
bonds which have a face value of fifty thousand dollars or more, nor has a suspensive17
appeal or other proceeding challenging the bond forfeiture been timely filed, the18
prosecuting attorney may file with the district court, in the parish where the bond is19
forfeited, a rule to show cause why that commercial surety company should not be20
prohibited from executing criminal bail bonds before the court issuing the judgment21
of bond forfeiture If a defendant fails to appear after January 1, 2015, and a22
judgment of bond forfeiture rendered against a commercial surety company has23
not been satisfied, nor has a suspensive appeal been timely perfected, the24
prosecuting attorney may file with the court, in the parish where the bond is25
forfeited, a rule to show cause why that commercial surety company should not26
be prohibited from executing criminal bail bonds before the court issuing the27
judgment of bond forfeiture.28
B. At the rule to show cause, the court may consider only issues which would29 SB NO. 439
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interrupt the enforceability of the judgment. The court may issue an order enjoining1
the commercial surety company from posting criminal bail bonds before the court2
issuing the judgment of bond forfeiture if the judgment is not satisfied within ten3
days and if the court finds all of the following:4
(1) A judgment of bond forfeiture has been rendered, after June 22, 1993,5
against the commercial surety A defendant failed to appear after January 1, 2015,6
and a judgment of bond forfeiture has been rendered against the commercial7
surety.8
(2) Proper notice pursuant to Code of Criminal Procedure Article 349.3 349.69
has been mailed.10
(3) No suspensive appeal has been taken.11
(4) The defendant has neither been surrendered nor appeared within one12
hundred eighty days of the date of mailing the notice of the signing of the judgment13
of bond forfeiture for bonds that have a face value of fifty thousand dollars or more,14
and the defendant has not been surrendered together with ten percent of the total15
amount of the bond more than one hundred eighty days but within two hundred16
seventy days after the date of mailing the notice of the signing of the judgment of17
bond forfeiture The defendant has not been surrendered, constructively18
surrendered, nor appeared within one hundred eighty days since the notice of19
warrant of arrest was sent.20
(5) Two hundred ten days have passed since the date of mailing the notice21
of the signing of the judgment of bond forfeiture for bonds that have a face value22
under fifty thousand dollars, or four hundred days have passed since the date of23
mailing the notice of the signing of the judgment of bond forfeiture for bonds that24
have a face value of fifty thousand dollars or more Thirty days have passed since25
the date of mailing the notice of the signing of the judgment of bond forfeiture.26
(6) The judgment of bond forfeiture has not been satisfied by payment of the27
full amount for bonds that have a face value under fifty thousand dollars, or has not28
been satisfied by the surrender or the appearance of the defendant together with29 SB NO. 439
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payment in cash of ten percent of the total bond amount for bonds that have a face1
value of fifty thousand dollars or more, if applicable.2
C. The burden of proof at the hearing shall be upon the commercial surety by3
a preponderance of evidence and shall be limited to documents contained in the4
official court record where the judgment was rendered. The surety company may use5
evidence not contained in the record to show that it did not receive post-forfeiture6
notice or the post-forfeiture notice was not properly mailed notice of the signing of7
the judgment of bond forfeiture.8
Section 3. R.S. 22:1441(A), (C)(2), and (D) are hereby amended and reenacted to9
read as follows:10
§1441. Failure to timely satisfy claim under criminal bond contract11
A. Any prosecuting attorney may file with the commissioner of insurance's12
office a rule to show cause if all the following are true:13
(1) A judgment of bond forfeiture has been rendered after June 22, 1993,14
against the commercial surety underwriter A defendant failed to appear after15
January 1, 2015, and a judgment of bond forfeiture has been rendered against16
the commercial surety underwriter.17
(2) Notice pursuant to Code of Criminal Procedure Article 349.3 349.6 has18
been mailed.19
(3) No suspensive appeal has been taken.20
(4) The defendant has neither been surrendered, constructively surrendered,21
nor appeared within one hundred eighty days of mailing of the notice of the signing22
of the judgment of bond forfeiture since the notice of warrant of arrest was sent.23
(5) More than one hundred eighty days has lapsed from the mailing of the24
notice of the signing of the judgment of bond forfeiture since the notice of warrant25
of arrest was sent.26
(6) The judgment of bond forfeiture has not been satisfied by payment.27
* * *28
C.(1) * * *29 SB NO. 439
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(2) The commissioner shall order the commercial surety underwriter to pay1
immediately the judgment of bond forfeiture, if the commissioner finds that all of the2
following are true:3
(a) A judgment of bond forfeiture has been rendered after June 22, 1993,4
against the commercial surety underwriter A defendant failed to appear after5
January 1, 2015, and a judgment of bond forfeiture has been rendered against6
the commercial surety underwriter.7
(b) Notice pursuant to Code of Criminal Procedure Article 349.3 349.6 has8
been mailed.9
(c) No suspensive appeal has been taken.10
(d) The defendant has neither been surrendered nor appeared within one11
hundred eighty days of mailing of the notice of the signing of the judgment of bond12
forfeiture surrendered, constructively surrendered, nor appeared within one13
hundred eighty days since the notice of warrant of arrest has been sent. 14
(e) More than one hundred eighty days has lapsed from the mailing of the15
notice of the signing of the judgment of bond forfeiture since the notice of warrant16
of arrest was sent.17
(f) The judgment of bond forfeiture has not been satisfied by payment.18
D. The burden of proof at the hearing shall be upon the commercial surety19
by a preponderance of evidence and shall be limited to documents contained in the20
official court record where the judgment was rendered. The surety company may use21
evidence not contained in the record to show that it did not receive post-forfeiture22
notice or the post-forfeiture notice required pursuant to Code of Criminal Procedure23
Article 349.3 was not properly mailed notice of the signing of the judgment of24
bond forfeiture.25
* * *26
Section 4. This Act shall become effective on January 1, 2015; if vetoed by the27
governor and subsequently approved by the legislature, this Act shall become effective on28
January 1, 2015, or on the day following such approval by the legislature, whichever is later.29 SB NO. 439
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words in boldface type and underscored are additions.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement, Jr.
DIGEST
Claitor (SB 439)
Present law defines "bail" as the security given by a person to assure his appearance before
the proper court whenever required.
Proposed law retains present law.
Proposed law defines "appearance" as a personal appearance before the court, or a designee
thereof, before which the charges are pending.
Proposed law defines "surrender" as the detention of the defendant by the officer originally
charged with his detention as upon the original commitment at the request of the surety.
Proposed law defines "constructive surrender" as the detention of the defendant in another
parish of the state or a foreign jurisdiction when the surety has provided the court proof of
the defendant's current incarceration and has paid the reasonable cost of returning the
defendant to the jurisdiction where the warrant was issued. Proposed law further provides
that a letter of incarceration issued by the officer charged with the detention of the defendant
verifying that the defendant is incarcerated is adequate proof of the incarceration of the
defendant. Proposed law further provides that the surety is to pay a fee of $25 to the officer
charged with the defendant's detention for the letter verifying the incarceration.
Present law provides that the defendant and personal surety signing a bail bond are to write
the address at which each can be served under their respective signatures and the last four
digits of their social security number.
Proposed law changes "served" to "sent notice" and otherwise retains present law.
Present law provides that the defendant and his counsel by joint affidavit filed of record in
the proceeding in which the bond was given may appoint the defendant's counsel as his agent
for service of notice to appear.
Proposed law makes the defendant's counsel the person to whom notice can be sent rather
than the person on whom notice can be served. Proposed law otherwise retains present law.
Present law provides that by signing the bail bond, the defendant and his surety waive any
right to notice.
Proposed law retains present law.
Present law provides that a surety may surrender the defendant or the defendant may
surrender himself, in open court or to the officer charged with his detention, at any time prior
to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of
the bail bond, and further provides that upon surrender of the defendant, the officer is to
detain the defendant in his custody as upon the original commitment and acknowledge the
surrender by a certificate signed by him and delivered to the surety.
Proposed law changes present law to provide that upon surrender of the defendant, the
officer is to forward a copy of the certificate to the court rather than the surety. Proposed
law further provides that upon verified surrender of the defendant prior to 180 days after the
notice of warrant of arrest was sent, the surety is to be fully and finally discharged and
relieved of all obligations under the bond. Proposed law otherwise retains present law. SB NO. 439
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words in boldface type and underscored are additions.
Present law provides that when the surety has requested the surrender of the defendant, the
officer is to acknowledge the surrender by a certificate of surrender signed by him and
delivered to the surety, and the surety is to pay a fee of $25 to the officer charged with the
defendant's detention for recalling the capias, accepting the surrender, processing the
paperwork, and giving the surety a certificate of surrender.
Proposed law retains present law.
Present law provides that at any time prior to forfeiture or within the time allowed by law
for setting aside a judgment for forfeiture of the bail bond, the surety may present to the
court a certificate of death naming the defendant as the deceased party.
Proposed law changes present law to provide that the surety may present to the court a
certificate of death naming the defendant as the deceased party at any time prior to the
defendant's failure to appear or within 180 days after the notice of warrant of arrest is sent.
Proposed law otherwise retains present law.
Proposed law provides that at any time during which there is an active arrest warrant in the
proceeding for which the bond was posted, the surety or bail bond producer who posted the
bond may file an affidavit requesting the defendant be remanded and surrendered upon his
appearance before the court where the charges are pending. Proposed law further provides
that the affidavit will meet all the requirements set forth in present law relative to bail
enforcement agents and must be filed before the court in which the charges are pending, with
a copy of the affidavit provided to the prosecuting attorney. Proposed law further provides
that within 180 days of the date on which the notice of warrant of arrest was sent, the court
may either grant or deny the relief requested. Proposed law further provides that if the court
grants the relief requested, then it is to remand the defendant and relieve the surety of all
obligations under the bond, but if the court denies the relief requested, then the surety may
seek supervisory review.
Present law provides that during the period provided for surrendering the defendant, the
surety may request that the officer originally charged with the detention of a felony
defendant place the name of the felony defendant into the National Crime Information
Center (NCIC) registry.
Proposed law changes the time for requesting placement of the defendant's name in the
NCIC registry to any time after the defendant's failure to appear and the issuance of the
warrant of arrest rather than during the period provided for surrender to the defendant.
Present law provides relative to bond forfeiture procedure.
Present law provides that if the defendant fails to appear as ordered, the court is to
immediately issue a warrant for the arrest of the person failing to appear and order a
judgment decreeing the forfeiture of the bond against the defendant and his sureties in solido
for the full amount of the bond.
Present law does not require a contradictory hearing to order a judgment of bond forfeiture.
Proposed law requires a contradictory hearing to order a judgment of bond forfeiture.
Proposed law provides that if a defendant who was properly noticed fails to appear as
ordered, the court, on its own motion or on motion of the prosecuting attorney, is to
immediately issue a warrant for the arrest of the defendant. Proposed law further provides
that after a warrant of arrest is issued, the clerk of court within 60 days is to send a "notice
of warrant of arrest" to the prosecuting attorney. Proposed law further provides that this
notice is to also be sent by U.S. mail or electronic means to the defendant, the agent or
bondsman, and the personal surety, and by electronic means or certified mail to the
commercial surety, to the addresses provided pursuant to proposed law or to an address SB NO. 439
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registered with the Dept. of Insurance. Proposed law provides that after sending the notice
of warrant of arrest, the clerk of court is to execute an affidavit that notice was sent and place
the affidavit in the record.
Proposed law provides that if the defendant has not been surrendered, constructively
surrendered, or appeared within 180 days since the notice of warrant of arrest was sent, the
prosecuting attorney may file a rule to show cause requesting that a bond forfeiture judgment
be rendered, which is to be mailed to the defendant and served on all other parties against
whom a judgment is sought. Proposed law further provides that the rule to show cause is to
be set for contradictory hearing.
Proposed law provides that upon proof at the contradictory hearing of the bail bond, the
power of attorney, notice to the defendant and the surety as required by proposed law, and
that more than 180 days have passed since the notice of the warrant of arrest was sent, the
court is to forfeit the bail bond, and a judgment of bond forfeiture entered. Proposed law
further provides that the judgment of bond forfeiture is to be issued against the defendant
and his sureties in solido for the full amount of the bail. Proposed law further provides that
a bail agent who represents the surety as an insurance agent cannot be held solidarily liable
for the judgment of bond forfeiture against the defendant and his sureties, and in the event
that a bail agent who represents the surety as an insurance agent is held solidarily liable, then
the bail agent may request to be released from the judgment, and the release of the bail agent
will have no effect on the judgment decreeing the forfeiture of the bond against the
defendant and his sureties.
Present law provides that a judgment decreeing the forfeiture of a bail bond cannot be
rendered if it is shown to the satisfaction of the court at the hearing on the rule to show cause
that the defendant, principal in the bond, failed to appear in court because he has a physical
disability, illness or injury; is being detained in the jail or penitentiary of another
jurisdiction; was serving in the armed forces of the United States; was a member of the La.
National Guard called to duty pursuant to present law; was prevented from appearing due
to state of emergency declared by the governor.
Proposed law deletes physical disability, illness, or injury and detention in another
jurisdiction from present law.
Present law provides a detailed procedure for notice of judgment to interested parties.
Proposed law deletes present law and provides that notice of the signing of the judgment of
bond forfeiture is to be mailed by the clerk of court to the counsel of record for each party,
and to each party not represented by counsel, pursuant to present law relative to notice of a
civil judgment.
Present law provides that after mailing notice of the signing of the judgment of bond
forfeiture, the district attorney must cause the judgment to be recorded in every parish in
which the recordation may be proper, and every such recordation is without cost and
operates as a judicial mortgage against the defendant and all his sureties.
Proposed law changes the recordation provision in present law from mandatory to
discretionary but otherwise retains present law.
Present law provides detailed procedures for satisfaction and enforcement of a bond
forfeiture judgment.
Proposed law deletes present law and provides that after the delay for filing a suspensive
appeal has elapsed, the prosecuting attorney may file a rule to show cause with the
commissioner of insurance in accordance with present law relative to failure to timely satisfy
a claim under a criminal bond contract, or may collect the judgment in the same manner as
a civil judgment. SB NO. 439
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words in boldface type and underscored are additions.
Present law provides a procedure for appealing a judgment of bond forfeiture.
Proposed law deletes present law and provides that the rights of appeal of a bond forfeiture
judgment are governed by present law relative to civil appeals.
Present law provides relative to a failure to timely satisfy a claim under a criminal bond
contract.
Proposed law essentially retains present law but changes the trigger date for present law
procedures from 6/22/93 to 1/15/15 relative to bond forfeiture judgment dates and the date
after which a defendant fails to appear.
Present law provides relative to proof and procedures at a bond forfeiture hearing.
Proposed law retains present law and adds that a surety company may use evidence not
contained in the record to show that it did not receive notice of the signing of the judgment
of bond forfeiture.
Effective January 1, 2015.
(Amends C.Cr.P. Art. 311, 322(A) and (C), 345, 349, 349.1, 349.2, 349.3, 349.4, 349.5,
349.6, 349.7, 349.8, and 349.9, R.S. 15:85, and R.S. 22:1441(A), (C)(2), and (D))