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2016 Regular Session
SENATE BILL NO. 123
BY SENATOR CLAITOR (On Recommendation of the Louisiana State Law Institute)
CRIMINAL PROCEDURE. Revises and reorganizes Code of Criminal Procedure articles
and Revised Statutes relative to bail. (1/1/17)
1 AN ACT
2 To amend and reenact Title VIII of the Code of Criminal Procedure, to be comprised of
3 Articles 311 through 342, R.S. 15:85, and the introductory paragraph of R.S.
4 22:1441(A) and (A)(1) through (5), (C)(1), the introductory paragraph of (C)(2) and
5 (C)(2)(a) through (e), and (D), to enact R.S. 22:1441(C)(3) through (5), and to repeal
6 Code of Criminal Procedure Articles 327.1, 330.1, 330.2, 330.3, 334.1, 334.2, 334.3,
7 334.4, 334.5, 334.6, 335.1, 335.2, 336.1, 336.2, 343, 344, 345, 346, 347, 348, 349,
8 349.1, 349.2, 349.3, 349.4, 349.5, 349.6, 349.7, 349.8, and 349.9, relative to bail; to
9 provide for the revision and reorganization of bail law; to provide for definitions; to
10 provide for the right to bail; to provide for bail hearings and detention without bail;
11 to provide for the authority to fix bail; to provide schedules of bail and factors in
12 fixing bail; to provide for modification of bail; to provide for conditions, types, and
13 restrictions of bail; to provide for bail with and without surety; to provide for cash
14 deposits; to provide the requirements of the bail undertaking; to provide for notice
15 of required appearance; to provide for discharge of the bail obligation; to provide
16 relative to a defendant's failure to appear and issuance and notice of arrest warrant;
17 to provide for the filing of a rule to show cause; to provide for nonforfeiture
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1 situations; to provide for notice and recordation of judgment; to provide for appeals;
2 to provide for enforcement of judgment; to provide relative to failure to satisfy a
3 judgment of bond forfeiture or claim under a criminal bond contract; and to provide
4 for related matters.
5 Be it enacted by the Legislature of Louisiana:
6 Section 1. Title VIII of the Code of Criminal Procedure, to be comprised of Articles
7 311 through 342, is hereby amended and reenacted to read as follows:
8 TITLE VIII. BAIL
9 Art. 311. Bail defined Definitions
10 For the purpose of this Title, the following definitions shall apply:
11 (1) Bail is the security given by a person to assure his a defendant's
12 appearance before the proper court whenever required. (Source: Art. 311)
13 (2) An appearance is a personal appearance before the court or the
14 court's designee, where the charges are pending.
15 (3) A surrender is the detention of the defendant at the request of the
16 surety by the officer originally charged with his detention on the original
17 commitment. When the surety has requested the surrender of the defendant, the
18 officer shall acknowledge the surrender by a certificate of surrender signed by
19 him and delivered to the surety.
20 (4) A constructive surrender is the detention of the defendant in another
21 parish of the state of Louisiana or a foreign jurisdiction under the following
22 circumstances:
23 (a) A warrant for arrest has been issued for the defendant in the
24 jurisdiction in which the bail obligation is in place.
25 (b) The surety has provided proof of the defendant's current
26 incarceration to the court in which the bail obligation is in place, the
27 prosecuting attorney, and the officer originally charged with the defendant's
28 detention.
29 (c) The surety has paid to the officer the reasonable costs of returning the
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1 defendant to the jurisdiction where the warrant for arrest was issued.
2 (5) A personal surety must be is a natural person domiciled in this the state
3 of Louisiana who owns property in this state that is subject to seizure and is of
4 sufficient value to satisfy, considering all his property, the amount specified in the
5 bail bond undertaking. The value of the property of the surety shall exclude
6 property the amount exempt from execution, and shall be over and above all his
7 other liabilities including the amount of any other bail bond undertaking on which
8 he may be principal or surety. When If there is more than one personal surety, then
9 the requirements of this Article shall apply to the aggregate value of their property.
10 No A personal surety shall not charge a fee or receive any compensation for posting
11 a personal surety bond bail undertaking. (Source: Art. 315) A bail undertaking of
12 a personal surety may be unsecured or secured. (Source: Art. 316)
13 (Source: C.Cr.P. Arts. 311, 315, and 316)
14 Art. 312. Types and elections of bail Right to bail before and after conviction
15 A. The types of bail in Louisiana are:
16 (1) Bail with a commercial surety.
17 (2) Bail with a secured personal surety.
18 (3) Bail with an unsecured personal surety.
19 (4) Bail without surety, with or without security.
20 (5) Bail with a cash deposit.
21 B. Except as provided in Paragraphs C and D of this Article, all bail must be
22 posted in the full amount fixed by the court.
23 C. When the court fixes the amount of bail, a secured bail undertaking may
24 be satisfied by a commercial surety, a cash deposit, or with the court's approval, by
25 a secured personal surety or a bond secured by the property of the defendant, or by
26 any combination thereof.
27 D. When the court elects to release the defendant on an unsecured personal
28 surety or a bail without surety, that election shall be expressed in the bail order.
29 A. Except as provided in this Article and Article 331 313, a person in
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1 custody who is charged with the commission of an offense is entitled to be admitted
2 to bail before conviction unless the person is charged with a crime of violence as
3 defined by law or with production, manufacture, distribution, or dispensing or
4 possession with intent to produce, manufacture, distribute, or dispense a controlled
5 dangerous substance as defined by the Louisiana Controlled Dangerous Substances
6 Law, and after a contradictory hearing, conducted pursuant to the provisions of
7 Article 330.1, the judge or magistrate finds by clear and convincing evidence that the
8 defendant may flee or poses an imminent danger to any other person or the
9 community. (Source: Art. 330)
10 B. A person released on a previously posted bail undertaking for (1) a
11 crime of violence as defined by R.S. 14:2(B) which carries a minimum
12 mandatory sentence of imprisonment upon conviction or (2) the production,
13 manufacture, distribution, or dispensing or possession with intent to produce,
14 manufacture, distribute, or dispense a controlled dangerous substance as
15 defined by the Louisiana Uniform Controlled Dangerous Substances Law, shall
16 not be readmitted to bail when the person previously failed to appear and a
17 warrant for arrest was issued and not recalled or the previous bail undertaking
18 has been revoked or forfeited. If a person voluntarily appears without
19 confinement by a law enforcement officer or bail recovery agent following a
20 motion to revoke bail or issuance of an arrest warrant for failure to appear but
21 prior to revocation or forfeiture, then he may be released only under one of the
22 following circumstances:
23 (1) Notwithstanding the provisions of Subparagraphs (2) and (3) of this
24 Paragraph, after After a contradictory hearing, any a person who voluntarily
25 surrenders following revocation or forfeiture of bail may be released on the forfeited
26 or revoked previously posted bail undertaking provided the revocation or forfeiture
27 of the bail if the motion to revoke bail is rescinded by the court or the arrest
28 warrant is recalled and the surety is present or represented at the hearing and
29 consents gives written consent. Previous instances of revocation or and forfeiture
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1 of bail in unrelated cases is are admissible at that contradictory the hearing. The
2 relief shall be available only at the first instance of revocation or forfeiture of that
3 bail and within six months of the forfeiture of the bail. This relief is available only
4 once. (Source: Art. 334.3(A)(4))
5 (2) Any person who voluntarily surrenders following revocation forfeiture
6 of bail A person may be released on a new bail undertaking without a
7 contradictory hearing only on bail with a commercial surety and in an amount
8 higher than the original bail. (Source: Art. 334.3(A)(2))
9 C. A defendant who has been surrendered himself under the provisions of
10 Article 345 331, or has been rearrested under the provisions of Article 346 332, is
11 entitled to bail in accordance with this Code. (Source: Art. 347)
12 D. A convicted person shall be remanded to jail to await sentence unless any
13 of the following occur:
14 (1) He is allowed to remain free on a bail obligation undertaking posted
15 prior to conviction by operation of Article 326(B) 331(A), and the bail previously
16 fixed is in accordance with all of the applicable provisions of this Article.
17 (2) He is released by virtue of a bail obligation undertaking posted after
18 conviction, which and the bail was fixed in accordance with this Article. (Source:
19 Art. 332(A))
20 E. After conviction and before sentence, bail shall be allowed if the
21 maximum sentence which may be imposed is imprisonment for five years or less.
22 Bail may be allowed pending sentence if the maximum sentence which may be
23 imposed is imprisonment exceeding five years, except when the court has reason to
24 believe, based on competent evidence, that the release of the person convicted will
25 pose a danger to any other person or the community, or that there is a substantial risk
26 that the person convicted might flee. (Source: Art. 332(B))
27 F. After sentence and until final judgment, bail shall be allowed if a sentence
28 of five years or less is actually imposed. Bail may be allowed after sentence and until
29 final judgment if the sentence actually imposed exceeds imprisonment for five years,
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1 except when the court has reason to believe, based on competent evidence, that the
2 release of the person convicted will pose a danger to any other person or the
3 community, or that there is a substantial risk that the person convicted might flee.
4 (Source: Art. 332(C))
5 G. After conviction of a capital offense, a defendant shall not be allowed bail.
6 (Source: Art. 332(E))
7 H. A person held without bail or unable to post bail may invoke the
8 supervisory jurisdiction of the court of appeal on a claim that the trial court has
9 improperly refused bail or a reduction of bail in a bailable case. (Source: Art. 343)
10 (Source: C.Cr.P. Arts. 330, 332, 334.3, 343, and 347)
11 Art. 313. Surety Gwen's Law; bail hearings; detention without bail
12 Surety as used in this Title is a legal suretyship pursuant to the provisions of
13 the Louisiana Civil Code.
14 A. This Article Paragraph may be cited as and referred to as "Gwen's Law".
15 (1) A contradictory bail hearing, as provided for in this Article Paragraph,
16 may be held prior to setting bail for a person in custody who is charged with
17 domestic abuse battery, violation of protective orders, stalking, or any felony offense
18 involving the use or threatened use of force or a deadly weapon upon the defendant's
19 family member, as defined in R.S. 46:2132 or upon the defendant's household
20 member as defined in R.S. 14:35.3, or upon the defendant's dating partner, as defined
21 in R.S. 46:2151. If the court orders a contradictory hearing, the hearing shall be held
22 within five days from the date of determination of probable cause, exclusive of
23 weekends and legal holidays. At the contradictory hearing, the court shall determine
24 the conditions of bail or whether the defendant should be held without bail pending
25 trial. If the court decides not to hold a contradictory hearing, it shall notify the
26 prosecuting attorney prior to setting bail. (Source: Art. 330.3(B))
27 (2) In addition to the factors listed in Article 334 316, in determining whether
28 the defendant should be admitted to bail pending trial, or in determining the
29 conditions of bail, the judge or magistrate shall consider the following:
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1 (a) The criminal history of the defendant.
2 (b) The potential threat or danger the defendant poses to the victim, the
3 family of the victim, or to any member of the public, especially children.
4 (c) Documented history or records of any of the following: substance abuse
5 by the defendant; threats of suicide by the defendant; the defendant's use of force or
6 threats of use of force against any victim; strangulation, forced sex, or controlling the
7 activities of any victim by the defendant; or threats to kill. Documented history or
8 records may include but are not limited to sworn affidavits, police reports, and
9 medical records. (Source: Art. 330.3(C))
10 (3) Following the contradictory hearing and based upon the judge's or
11 magistrate's review of the factors set forth in Paragraph C Subparagraph(A)(2) of
12 this Article, the judge or magistrate may order that the defendant not be admitted to
13 bail, upon proof by clear and convincing evidence either that the defendant might
14 flee, or that the defendant poses an imminent danger to any other person or the
15 community. (Source: Art. 330.3(D))
16 (4) If bail is granted, with or without a contradictory hearing, the judge or
17 magistrate shall comply with the provisions of Article 335.1 or 335.2 320, as
18 applicable. The judge or magistrate shall consider, as a condition of bail, a
19 requirement that the defendant wear an electronic monitoring device and be placed
20 under active electronic monitoring and house arrest. The conditions of the electronic
21 monitoring and house arrest shall be determined by the court and may include but are
22 not limited to limitation of the defendant's activities outside the home and a curfew.
23 The defendant may be required to pay a reasonable supervision fee to the supervising
24 agency to defray the cost of the required electronic monitoring and house arrest. A
25 violation of the conditions of bail may be punishable by revocation of the bond bail
26 undertaking and the issuance of a bench warrant for the defendant's arrest or
27 remanding of the defendant to custody or a modification of the terms of bail.
28 (Source: Art. 330.3(E))
29 B. Upon motion of the prosecutor prosecuting attorney, the judge or
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1 magistrate may order the temporary detention of the defendant a person in custody
2 who is charged with the commission of an offense, for a period of not more than
3 five days, exclusive of weekends and legal holidays, pending the conducting of a
4 contradictory bail hearing. Following the contradictory hearing, upon proof by clear
5 and convincing evidence either that there is a substantial risk that the defendant
6 might flee or that the defendant poses an imminent danger to any other person or the
7 community, the judge or magistrate may order the defendant held without bail
8 pending trial. (Source: Art. 330.1)
9 C. A contradictory bail hearing, as provided for in this Article, shall be held
10 prior to setting bail for a person in custody who is charged with the commission of
11 a sex offense and who has been previously convicted of a sex offense. (Source: Art.
12 330.2(A))
13 (1) The court, after having been given notice of an applicable prior conviction
14 as described in Paragraph F Subparagraph (4) of this Article Paragraph, shall
15 order a contradictory hearing to be held within five days of receiving notice of the
16 prior conviction, exclusive of weekends and legal holidays. (Source: Art. 330.2(B))
17 (2) At the contradictory hearing the court, in addition to hearing whatever
18 evidence it finds relevant, shall, with the consent on motion of the prosecuting
19 attorney, perform an ex parte in camera examination of the evidence against the
20 accused. (Source: Art. 330.2(C))
21 (3) In addition to the factors listed in Article 334 of the Code of Criminal
22 Procedure 316, the court shall take into consideration the previous criminal record
23 of the defendant; any potential threat or danger the defendant poses to the victim, the
24 family of the victim, or to any member of the public, especially children; and the
25 court shall give ample consideration to any statistical evidence prepared by the
26 United States Department of Justice relative to the likelihood of the defendant, or any
27 person in general who has been convicted of sexually inappropriate conduct with a
28 prepubescent child under the age of thirteen, to commit similar offenses against
29 juvenile victims in the future. (Source: Art. 330.2(D))
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1 (4) For purposes of this Article Paragraph, "sex offense" means any offense
2 as defined as a sex offense in R.S. 15:541 when the victim is under the age of
3 thirteen at the time of commission of the offense and less than ten years have elapsed
4 between the date of the commission of the current offense and the expiration of the
5 maximum sentence of the previous conviction. (Source: Art. 330.2(F))
6 D.(1) A person charged with the commission of a capital offense shall not be
7 admitted to bail if the proof is evident and the presumption great that he is guilty of
8 the capital offense. When a person charged with the commission of a capital offense
9 makes an application for admission to bail, the judge shall hold a hearing
10 contradictorily with the state. (Source: Art. 331(A) and (B))
11 (2) The burden of proof at the contradictory bail hearing:
12 (a) Prior to indictment is on the state to show that the proof is evident and the
13 presumption great that the defendant is guilty of the capital offense.
14 (b) After indictment is on the defendant to show that the proof is not evident
15 or the presumption is not great that he is guilty of the capital offense. (Source: Art.
16 331(C))
17 (Source: C.Cr.P. Arts. 330.1, 330.2, 330.3, and 331)
18 Art. 314. Commercial surety Authority to fix bail; bail order
19 A surety company authorized to do business in the state of Louisiana may
20 become surety for the release of a person on bail. The sufficiency of security posted
21 in the form of an appearance bond by a surety company, as required by the
22 provisions of Title 22 of the Louisiana Revised Statutes of 1950, shall be determined
23 solely by the commissioner of insurance.
24 A. The following magistrates, throughout their several territorial
25 jurisdictions, shall have authority to fix bail:
26 (1) District courts and their commissioners having criminal jurisdiction, in
27 all cases.
28 (2) City or parish courts and municipal and traffic courts of New Orleans
29 having criminal jurisdiction, in cases not capital.
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1 (3) Mayor's courts and traffic courts in criminal cases within their trial
2 jurisdiction.
3 (4) Juvenile and family courts in criminal cases within their trial jurisdiction.
4 (5) Justices of the peace in cases not capital or necessarily punishable at hard
5 labor. (Source: Art. 333)
6 B. An order fixing bail shall be in writing, set the type and a single amount
7 of bail for each charge, designate the officer or officers authorized to accept the bail,
8 and shall be signed electronically or by any other means by the magistrate. An
9 order fixing bail may issue on request of the state or defendant, or on the initiative
10 of the judge or magistrate. (Source: Art. 338)
11 Art. 315. Personal surety Schedules of bail
12 A personal surety must be a natural person domiciled in this state who owns
13 property in this state that is subject to seizure and is of sufficient value to satisfy,
14 considering all his property, the amount specified in the bail bond. The value of the
15 property of the surety shall exclude property exempt from execution, and shall be
16 over and above all his other liabilities including the amount of any other bail bond
17 on which he may be principal or surety. When there is more than one personal
18 surety, the requirements of this Article shall apply to the aggregate value of their
19 property. No personal surety shall charge a fee or receive any compensation for
20 posting a personal surety bond.
21 A. Unless the bail is fixed by a schedule in accordance with Paragraph B this
22 Article, the amount of bail in felony cases shall be specifically fixed in each case.
23 In noncapital felony cases, a bail schedule according to the offense charged may
24 be fixed by a district court. In misdemeanor cases, a bail schedule according to
25 the offense charged may be fixed by a district, parish or city court for offenses
26 committed within its trial jurisdiction. (Source: Art. 340(A)) When more than one
27 court has trial jurisdiction over an offense, the applicable bail schedule shall be that
28 of the court in which the case is to be tried. (Source: Art. 341(A))
29 B. The court order setting the bail schedule shall fix the amount of bail for
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1 each offense listed, designate the officer or officers authorized to accept the bail, and
2 order that bail be taken in conformity with the schedule. It may also contain a general
3 provision designating the amount of bail for any noncapital felony and
4 misdemeanor not listed in the schedule. A copy of the schedule shall be sent to all
5 jails, sheriff's offices, and police stations within the judicial district, parish, or city,
6 respectively. A bail schedule may be revised or rescinded at any time. (Source: Art.
7 341(B)) The type or form of bail shall not be sent in the a bail schedule. (Source:
8 Art. 341(A))
9 C. A person charged with the commission of a felony an offense for which
10 bail is fixed by a schedule may give bail according to the schedule or demand a
11 special order fixing bail. The bail amount fixed by schedule may be modified by
12 the court in accordance with Article 319. (Source: Art. 340(C))
13 (Source: C.Cr.P. Arts. 340 and 341)
14 Art. 316. Types of personal surety Factors in fixing amount of bail
15 There are two types of personal surety in Louisiana: unsecured, and secured.
16 The amount of bail shall be such that, in the judgment of the court,
17 commissioner, or magistrate, it will insure fixed in an amount that will ensure the
18 presence of the defendant, as required, and the safety of any other person and the
19 community, having regard to:
20 (1) The seriousness of the offense charged, including but not limited to
21 whether the offense is a crime of violence or involves a controlled dangerous
22 substance.
23 (2) The weight of the evidence against the defendant.
24 (3) The previous criminal record of the defendant.
25 (4) The ability of the defendant to give bail.
26 (5) The nature and seriousness of the danger to any other person or the
27 community that would be posed by the defendant's release.
28 (6) The defendant's voluntary participation in a pretrial drug testing program.
29 (7) The absence or presence in the defendant of any controlled dangerous
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1 substance in the defendant's blood at the time of arrest.
2 (8) Whether the defendant is currently out on a bond bail undertaking on a
3 previous felony arrest for which he is awaiting institution of prosecution,
4 arraignment, trial, or sentencing.
5 (9) Any other circumstances affecting the probability of defendant's
6 appearance.
7 (10) The type or form of bail.
8 (Source: C.Cr.P. Art. 334)
9 Art. 317. Unsecured personal surety Organization performing or providing
10 pretrial services
11 A person in custody may be released by order of the court on an unsecured
12 personal surety bond. An unsecured personal surety is a personal surety where the
13 surety meets all the qualifications of law and lives and resides in the state of
14 Louisiana without specifically mortgaging or giving a security interest in any
15 property as security to guarantee the surety's performance.
16 Any nonprofit organization which is contracted, employed, or which receives
17 public funds to perform or provide pretrial services, such as screening of any
18 defendant, shall verify all background information provided by a defendant or
19 otherwise obtained by the organization regarding the defendant.
20 (Source: C.Cr.P. Art. 334.6)
21 Art. 318. Secured personal surety Juvenile records in fixing bail
22 A secured personal surety is a personal surety who meets all the
23 qualifications of law and specifically mortgages immovable property located in the
24 state of Louisiana.
25 A. For the purpose of fixing bail, a magistrate court may make a written
26 request of any juvenile court for an abstract containing only the delinquent acts of
27 a defendant currently before the requesting magistrate court. The request shall be
28 promptly complied with; however, not more than forty-eight hours, exclusive of
29 Saturdays, Sundays, and legal holidays, shall lapse before the requested information
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1 is deposited in the mail, addressed to the requesting court.
2 B. The requesting court shall not copy, duplicate, or otherwise reproduce
3 such juvenile records, and these shall be deposited in the mail and addressed to the
4 issuing juvenile court within seventy-two hours, exclusive of Saturdays, Sundays,
5 and legal holidays, after bail is determined.
6 C. Failure to comply with the provisions of this Article shall subject the
7 violating court to disciplinary action by the Supreme Court of Louisiana upon receipt
8 by the judicial administrator of the supreme court of a written complaint,
9 subsequently substantiated.
10 (Source: C.Cr.P. Art. 337)
11 Art. 319. Conditions for providing a property bond Modifications of bail
12 A. A defendant or a secured personal surety, pursuant to Article 312, may
13 establish a legal mortgage over immovable property in favor of the state of Louisiana
14 or the proper political subdivision to secure a bail obligation.
15 B. The mortgage is established upon the recordation of a written mortgage,
16 in authentic form satisfactory to the officer authorized to receive the bail, in the
17 mortgage records of the parish where the immovable is located that:
18 (1) Contains the name and signature of the person making the mortgage.
19 (2) Describes the immovable and declares that a mortgage is given over it as
20 security for the performance of the bail obligation.
21 (3) Certifies that the person making the mortgage owns the immovable and
22 states its value, in excess of the amount of all encumbrances against it.
23 (4) Attaches to it a copy of the order fixing the bail obligation.
24 C. The person providing the security shall deliver a certified copy of the
25 recorded statement establishing the mortgage and a mortgage certificate to the officer
26 authorized to receive the bail. The officer may require additional evidence of
27 ownership and value of the mortgaged property including a copy of the current tax
28 assessment.
29 D.(1) The recorder shall cancel the mortgage from his records upon the order
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1 of the court.
2 (2) In all other cases, the effect of its recordation shall cease ten years after
3 its recordation unless it is reinscribed in the manner otherwise provided by law.
4 E. Any materially false or incorrect statements made by a person who
5 intentionally and knowingly gives a mortgage or security interest pursuant to this
6 Article shall be prima facie proof of a violation of the provisions of R.S. 14:125,
7 false swearing.
8 A. The court having trial jurisdiction over the offense charged, on its own
9 motion or on motion of the state prosecuting attorney or defendant, for good cause,
10 may either increase or reduce the amount of bail, or require new or additional
11 security. For purposes of this Article, good cause for increase of bail specifically
12 includes but is not limited to the rearrest of the defendant on offenses alleged to have
13 been committed while out on bond a bail undertaking. The modification of any bail
14 order wherein a bail bond undertaking has been posted by a criminal defendant and
15 his sureties shall upon said the modification terminate the liability of the defendant
16 and his sureties under the previously existing bail contract undertaking. A new bail
17 undertaking must be posted in the amount of the new bail order. (Source: Art. 342)
18 B. The defendant or his surety may, at any time before a breach of the bail
19 undertaking and with approval of the court in which the prosecution is pending,
20 substitute another form of security authorized by this Code. The original security,
21 including a surety, shall be released when the substitution of security is made.
22 (Source: Art 328)
23 (Source: C.Cr.P. Arts. 328 and 342)
24 Art. 320. Those who may not be sureties Conditions of bail undertaking
25 A person shall not be released on bail for which an attorney at law, a judge,
26 or ministerial officer of a court becomes a surety or provides money or property for
27 bail; but the invalidity of such bail shall not be a defense to an action to forfeit and
28 enforce the bail.
29 A. Definitions. For the purpose of this Article:
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1 (1) For the purposes of this Subsubparagraph, "firearm" "Firearm" means
2 any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder
3 weapon, or assault rifle that is designed to fire or is capable of firing fixed cartridge
4 ammunition or from which a shot or projectile is discharged by an explosive.
5 (Source: Art. 335.1(A)(1)(c))
6 (2) "Global positioning monitoring system" means a system that
7 electronically determines and reports the location of an individual by means of an
8 ankle bracelet transmitter or similar device worn by the individual that transmits
9 latitude and longitude data to monitoring authorities through global positioning
10 satellite technology but does not contain or operate any global positioning system
11 technology or radio frequency identification technology or similar technology that
12 is implanted in or otherwise invades or violates the corporeal body of the individual.
13 (Source: Art. 335.1(C)(1))
14 (3) "Immediate family member" means the spouse, mother, father, aunt,
15 uncle, sibling, or child of the victim, whether related by blood, marriage, or
16 adoption.
17 (4) "Informed consent" means that the victim was given information
18 concerning all of the following before consenting to participate in global positioning
19 system monitoring:
20 (a) The victim's right to refuse to participate in global positioning system
21 monitoring and the process for requesting the court to determine the victim's
22 participation after it has been ordered.
23 (b) The manner in which the global positioning monitoring system
24 technology functions and the risks and limitations of that technology, and the extent
25 to which the system will track and record the victim's location and movements.
26 (c) The boundaries imposed on the defendant during the global positioning
27 system monitoring.
28 (d) Sanctions that the court may impose on the defendant for violating an
29 order issued under this Article.
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1 (e) The procedure that the victim is to follow if the defendant violates an
2 order issued under this Article or if global positioning monitoring system equipment
3 fails.
4 (f) Identification of support services available to assist the victim to develop
5 a safety plan to use if the court's order issued under this Article is violated or if the
6 global positioning monitoring system equipment fails.
7 (g) Identification of community services available to assist the victim in
8 obtaining shelter, counseling, education, child care, legal representation, and other
9 help in addressing the consequences and effects of domestic violence or stalking.
10 (h) The nonconfidential nature of the victim's communications with the court
11 concerning global positioning system monitoring and the restrictions to be imposed
12 upon the defendant's movements. (Source: Art. 335.1(C)(2))
13 B. Conditions of bail generally. Except as provided in Paragraph B, the The
14 condition of the bail undertaking in district, juvenile, parish, and city courts shall be
15 that the defendant will appear at all stages of the proceedings to answer the charge
16 before the court in which he may be prosecuted, will submit himself to the orders and
17 process of the court, and will not leave the state without written permission of the
18 court. (Source: Art. 326(A)) The court may impose any additional condition
19 conditions of release that is are reasonably related to assuring the appearance of the
20 defendant before the court and guarding the safety of any other individual or the
21 community. (Source: Art. 335)
22 C. Operating a vehicle while intoxicated. The court shall require as a
23 condition of release on bail that any person who is charged with a second or
24 subsequent violation of R.S. 14:32.1, 39.1, 39.2, 98, 98.1, or a parish or municipal
25 ordinance that prohibits the operation of a motor vehicle while under the influence
26 of alcohol or drugs to install an ignition interlock device on any vehicle which he
27 operates. The defendant shall have fifteen days from the date that he is released on
28 bail to comply with this requirement, and the ignition interlock device shall remain
29 on the vehicle or vehicles during the pendency of the criminal proceedings. Failure
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1 to comply with this condition of release shall result in the revocation of bail and
2 reincarceration of the defendant. Under exceptional circumstances, the court may
3 waive the provisions of this Article but shall indicate the reasons therefor to the law
4 enforcement agency who has custody of the alleged offender documentation.
5 (Source: Art. 336.2)
6 D. Drug offenses and crimes of violence. Every person arrested for a
7 violation of the Uniform Controlled Dangerous Substances Law or a crime of
8 violence as provided in R.S. 14:2(B) shall be required to submit to a pretrial drug test
9 for the presence of designated substances in accordance with the provisions of this
10 Article and rules of court governing such testing. (Source: Art. 336(A)(1)) Every
11 person arrested for a any other felony, not otherwise required to submit to a pretrial
12 drug test as provided for in Subparagraph (1) of this Paragraph, may be required to
13 submit to a pretrial drug test for the presence of designated substances in accordance
14 with the provisions of this Article and rules of court governing such testing. (Source:
15 Art. 336(A)(2)) Every person arrested for a misdemeanor may be required to submit
16 to a pretrial drug test for the presence of designated substances in accordance with
17 the provisions of this Article and rules of court governing such testing. (Source: Art.
18 336(A)(3))
19 E. Pretrial drug testing program. The court may, and in all municipalities
20 with a population of three hundred thousand or more persons shall, implement a
21 pretrial drug testing program. All persons released under the provisions of the
22 pretrial drug testing program must submit to continued random testing and
23 refrain from the use or possession of any controlled dangerous substance or any
24 substance designated by the court. A pretrial drug testing program which shall
25 provide for the following: (Source: Art. 336(B))
26 (1) Mandatory participation for all persons arrested for violations of state
27 law. Additionally, all persons testing positive for the presence of one or more of
28 the designated substances set forth in Subparagraph (2) of this Paragraph, who
29 are not otherwise required to participate, shall submit to a pretrial drug testing
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1 program. (Source: Art. 336(B)(1))
2 (2) Drug testing to determine the presence of phencyclidine (PCP), opiates
3 (heroin), cocaine, methadone, amphetamines, or marijuana, any controlled
4 dangerous substance identified in the Uniform Controlled Substances Law prior
5 to first court appearance and random testing thereafter to verify that the person is
6 drug free. (Source: Art. 336(B)(2))
7 (3) Restrictions on the use of any and all test results to ensure that they are
8 used only for the benefit of the court to determine appropriate conditions of release,
9 monitoring compliance with court orders, and assisting in determining appropriate
10 sentences. A form statement shall be signed by the law enforcement agency and the
11 person in custody stipulating that under no circumstances shall the information be
12 used as evidence or as the basis for additional charges. (Source: Art. 336(B)(3))
13 (4) Reasonable testing procedures to ensure the fair administration of the test
14 and protection for the chain of custody for any evidence obtained. (Source: Art.
15 336(B)(4))
16 F. Implementation of pretrial drug testing program. The implementation
17 of any pretrial drug testing program authorized pursuant to the provisions of this
18 Article shall be contingent upon receipt by the court requiring the test of sufficient
19 federal or other funding to conduct the testing program in accordance with the
20 provisions of this Article and any rules of court. No elected official who is in any
21 way connected with the administration of the pretrial drug testing program provided
22 for in this Article, either directly or indirectly, shall have any financial interest, either
23 directly or indirectly, in any drug testing company participating in such pretrial drug
24 testing program. All contracts awarded to any drug testing company authorized to
25 conduct the pretrial drug testing program provided for in this Article shall be
26 awarded in accordance with the provisions governing public bids, R.S. 38:2181 et
27 seq. (Source: Art. 336(E), (F) and (G))
28 G. Domestic offenses, stalking, and sex offenses. In determining conditions
29 of release of a defendant who is alleged to have committed an offense against the
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1 defendant's family or household member, as defined in R.S. 46:2132(4), or against
2 the defendant's dating partner, as defined in R.S. 46:2151, or who is alleged to have
3 committed the offense of domestic abuse battery under the provisions of R.S.
4 14:35.3, or who is alleged to have committed the offense of stalking under the
5 provisions of R.S. 14:40.2, or who is alleged to have committed a sexual assault as
6 defined in R.S. 46:2184, or who is alleged to have committed the offense of first
7 degree rape under the provisions of R.S. 14:42, the court shall consider the
8 previous criminal history of the defendant and whether the defendant poses a
9 threat or danger to the victim. If the court determines that the defendant poses such
10 a threat or danger, it shall require as a condition of bail that the defendant refrain
11 from going to the residence or household of the victim, the victim's school, and the
12 victim's place of employment or otherwise contacting the victim in any manner
13 whatsoever, and shall refrain from having any further contact with the victim.
14 (Source: Art. 335.1(A)(1)(a)) In making a determination relative to the granting of
15 release or the conditions of such release of a defendant who is alleged to have
16 committed the offense of aggravated or first degree rape as provided in R.S.
17 14:42(A)(4), the court shall take into consideration the previous criminal record of
18 the defendant; any potential threat or danger the defendant poses to the victim, the
19 family of the victim, or to any member of the public, especially children; and The
20 court shall also consider any statistical evidence prepared by the United States
21 Department of Justice relative to the likelihood of such defendant or any person in
22 general who has raped or molested victims under the age of thirteen years to commit
23 sexual offenses against a victim under the age of thirteen in the future. (Source: Art.
24 336.1(A))
25 H. Uniform Abuse Prevention Order. (1) If, as part of a bail restriction, an
26 order is issued pursuant to the provisions of this Paragraph for purposes of
27 preventing violent or threatening acts or harassment against, or contact or
28 communication with or physical proximity to, another person for the purpose
29 of preventing domestic abuse, stalking, dating violence, or sexual assault, the
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1 judge shall cause to have prepared a Uniform Abuse Prevention Order, as provided
2 in R.S. 46:2136.2(C), shall sign such order, and shall immediately forward it to the
3 clerk of court for filing, on the next business day after the order is issued. The clerk
4 of the issuing court shall transmit the Uniform Abuse Prevention Order to the
5 Judicial Administrator's Office, Louisiana Supreme Court, for entry into the
6 Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile
7 transmission or direct electronic input as expeditiously as possible, but no later than
8 the end of the next business day after the order is filed with the clerk of court. The
9 clerk of the issuing court shall also send a copy of the Uniform Abuse Prevention
10 Order, as provided in R.S. 46:2136.2(C), or any modification thereof, to the chief
11 law enforcement officer of the parish where the person or persons protected by the
12 order reside. A copy of the Uniform Abuse Prevention Order shall be retained on file
13 in the office of the chief law enforcement officer until otherwise directed by the
14 court. (Source: Art. 335.1(A)(1)(b))
15 (2) Except as provided in Subsubparagraph (d) of this Subparagraph, if, If,
16 as part of a bail restriction, an order is issued pursuant to the provisions of this
17 Paragraph, the court shall also order that the defendant be prohibited from possessing
18 a firearm for the duration of the Uniform Abuse Prevention Order. (Source: Art.
19 335.1(A)(1)(c))
20 I. Global positioning monitoring. (1) In addition, the court may shall order
21 the a defendant who is alleged to have committed the offense of first degree rape
22 under the provisions of R.S. 14:42 and may order a defendant who is alleged to
23 have committed an offense against the defendant's family or household
24 member, as defined in R.S. 46:2132(4), or against the defendant's dating
25 partner, as defined in R.S. 46:2151, or who is alleged to have committed the
26 offense of domestic abuse battery under the provisions of R.S. 14:35.3, or who
27 is alleged to have committed the offense of stalking under the provisions of R.S.
28 14:40.2, or who is alleged to have committed a sexual assault as defined in R.S.
29 46:2184 to be equipped with a global positioning monitoring system as a condition
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1 of release on bail pursuant to Paragraph B of this Article. (Source: Art.
2 335.1(A)(2)(a))
3 (a) In determining whether to order a defendant, as a condition of release on
4 bail, to participate in global positioning system monitoring, the court shall consider
5 the likelihood that the defendant's participation in global positioning system
6 monitoring will deter the defendant from seeking to harm, injure, or otherwise
7 threaten the victim prior to trial. (Source: Art. 335.1(A)(2)(b))
8 (b) The defendant shall be released on bail pursuant to the provisions of this
9 Article only if he agrees to pay the cost of the global positioning monitoring system
10 and monitoring fees associated with the device, or agrees to perform community
11 service in lieu of paying such costs. (Source: Art. 335.2(A)(2)(c))
12 (2) If the court orders the defendant to be equipped with a global positioning
13 monitoring system as a condition of release on bail, the court may order the
14 defendant, with the informed consent of the victim, to provide the victim of the
15 charged crime with an electronic receptor device which is capable of receiving the
16 global positioning system information and which notifies the victim if the defendant
17 is located within an established proximity to the victim. The court, in consultation
18 with the victim, shall determine which areas the defendant shall be prohibited from
19 accessing and shall establish the proximity to the victim within which a defendant
20 shall be excluded. In making this determination, the court shall consider a list,
21 provided by the victim, which includes those areas from which the victim desires the
22 defendant to be excluded. (Source: Art. 335.2(B)(1))
23 (3) The victim shall be furnished with telephone contact information for the
24 local law enforcement agency in order to request immediate assistance if the
25 defendant is located within that proximity to the victim. The court shall order the
26 global positioning monitoring system provider to program the system to notify local
27 law enforcement if the defendant violates the order. The victim, at any time, may
28 request that the court terminate the victim's participation in the global positioning
29 monitoring system of the defendant. The court shall not impose sanctions on the
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1 victim for refusing to participate in global positioning system monitoring provided
2 for in this Paragraph. (Source: Art. 335.2(B)(2),(3),(4), and (5))
3 (4) In addition to electronic monitoring, the court shall consider house
4 arrest. The conditions of the electronic monitoring and house arrest shall be
5 determined by the court, and may include but are not be limited to limitation of the
6 defendant's activities outside of the home and a curfew. (Source: Art. 336.1(B))
7 J. Crimes of violence. If the defendant has been charged with a crime of
8 violence as defined in R.S. 14:2(B), the court shall require as a condition of bail
9 that the defendant be prohibited from communicating, by electronic
10 communication, in writing, or orally, with a victim of the offense, or with any
11 of the victim's immediate family members while the case is pending. This
12 condition does not apply if the victim consents in person or through a
13 communication through the local prosecuting agency. If an immediate family
14 member of the victim consents in person or through a communication through
15 the local prosecuting agency, then the defendant may contact that person.
16 K. Violations. Violation of such any condition by the defendant shall be
17 considered as a constructive contempt of court, and shall be grounds for result in the
18 revocation of bail, but does not give rise to a forfeiture and issuance of a bench
19 warrant for the defendant's arrest or remanding the defendant to custody. The
20 court may also modify bail by either increasing the amount of bail or adding
21 additional conditions of bail. (Source: Art. 335)
22 (Source: C.Cr.P. Arts. 326, 335, 335.1, 335.2, 336, 336.1, and 336.2)
23 Art. 321. Affidavit of surety Types of bail; restrictions
24 A personal surety shall execute an affidavit that he possesses the sufficiency
25 and qualifications prescribed by Article 315 and that he is not disqualified from
26 becoming a surety by Article 320. The affidavit shall list the number and amount of
27 undischarged bail bonds, if any, entered into by the surety. The officer accepting the
28 bail may require the surety to state in his affidavit the nature and value of his
29 property not exempt from execution, and the amount of his liabilities. An officer
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1 authorized to accept the bail shall have authority to administer any affidavit required
2 of the person signing a bail bond.
3 A. The types of bail in Louisiana are:
4 (1) Bail with a commercial surety.
5 (2) Bail with a secured personal surety.
6 (3) Bail with an unsecured personal surety.
7 (4) Bail without surety, with or without security.
8 (5) Bail with a cash deposit. (Source: Art. 312(A))
9 B. Except as provided in Paragraphs C and D of this Article, all All bail must
10 be posted in the full amount fixed by the court. When the court fixes the amount of
11 bail, a secured bail undertaking may be satisfied by a commercial surety, a cash
12 deposit, or with the court's approval, by a secured personal surety or a bond bail
13 undertaking secured by the property of the defendant, or by any combination
14 thereof. When the court elects to release the defendant on an unsecured personal
15 surety or a bail without surety, that election shall be expressed in the bail order.
16 (Source: Art. 312(B),(C), and (D))
17 C. Notwithstanding any other provision of law to the contrary, anyAny
18 defendant who has been arrested for any of the following crimes offenses shall not
19 be released by the court on the defendant's own recognizance or on the signature of
20 any other person on his personal undertaking or with an unsecured personal
21 surety: (Source: Art. 334.4(A))
22 (1) A crime of violence as defined by R.S. 14:2(B). (Source: Art. 334.2(5))
23 (2) The court shall not release any defendant who has been arrested for a A
24 felony offense, an element of which is the discharge, use, or possession of a firearm
25 on his personal undertaking without security or with an unsecured personal surety.
26 (Source: Art. 334.1)
27 (3) A sex offense as defined by R.S. 15:541 when the victim is under the
28 age of thirteen at the time of commission of the offense and less than ten years
29 have elapsed between the date of the commission of the current offense and the
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1 expiration of the maximum sentence of the previous conviction. (Source: Art.
2 330.2(F))
3 (4) R.S. 14:32.1 (vehicular homicide). (Source: Art. 334.4(A)(1))
4 (5) R.S. 14:35.3 (domestic abuse battery). (Source: Art. 334.2(1))
5 (6) R.S. 14:37.7 (domestic abuse aggravated assault). (Source: Art.
6 334.2(2))
7 (7) R.S. 14:40.3 (cyberstalking), if the person has two prior convictions for
8 the same offense. (Source: Art. 334.4(A)(2))
9 (8) R.S. 14:44.2 (aggravated kidnapping of a child). (Source: Art.
10 334.4(A)(3))
11 (9) R.S. 14:46 (false imprisonment). (Source: Art. 334.2(3))
12 (10) R.S. 14:46.1 (false imprisonment while the offender is armed with
13 a dangerous weapon). (Source: Art. 334.2(4))
14 (11) R.S. 14:87.1 (killing a child during delivery). (Source: Art. 334.4(A)(5))
15 (12) R.S. 14:87.2 (human experimentation). (Source: Art. 334.4(A)(6))
16 (13) R.S. 14:93.3 (cruelty to persons with infirmities), if the person has a
17 prior conviction for the same offense. (Source: Art. 334.4(A)(7))
18 (14) R.S. 14:98 (operating a vehicle while intoxicated), if the person has a
19 prior conviction for the same offense. (Source: Art. 334.4(A)(8))
20 (15) R.S. 14:102.1(B) (aggravated cruelty to animals). (Source: Art.
21 334.4(A)(9))
22 (16) R.S. 14:102.8 (injuring or killing of a police animal). (Source: Art.
23 334.4(A)(10))
24 (17) R.S. 14:110.1 (jumping bail).
25 (18) R.S. 14:110.1.1 (out-of-state bail jumping).
26 (19) Violation of an order issued pursuant to R.S. 9:361 et seq., R.S. 9:372,
27 R.S. 46:2131 et seq., R.S. 46:2151, Children's Code Article 1564 et seq., Code of
28 Civil Procedure Articles 3604 and 3607.1, or Code of Criminal Procedure Articles
29 30, 320, and 871.1. (Source: Art. 334.2(6))
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1 (20) The production, manufacturing, distribution, or dispensing or the
2 possession with the intent to produce, manufacture, distribute or dispense a
3 controlled dangerous substance in violation of R.S. 40:966(B), 967(B), 968(B),
4 969(B), or 970(B) of the Uniform Controlled Dangerous Substances Law. (Source:
5 Art. 334.4(A)(11))
6 D. There shall be a presumption that any defendant who has either been
7 arrested for a new felony offense or has at any time failed to appear in court on
8 the underlying felony offense after having been notified in open court shall not
9 be released on his own recognizance or on the signature of any other person.
10 This presumption may be overcome after contradictory hearing in open court
11 only if the judge determines by clear and convincing evidence that the relevant
12 factors warrant this type of release. (Source: Art. 334.4(B))
13 (Source: C.Cr.P. Arts. 312, 330.2, 334.1, 334.2, and 334.4)
14 Art. 322. Declaration of residence by defendant and surety; social security number;
15 waiver of notice Commercial surety
16 A. The defendant and personal surety signing a bail bond shall write the
17 address at which each can be served under their respective signatures and the last
18 four digits of their social security number. The defendant and his counsel may, by
19 joint affidavit filed of record in the proceeding in which the bond was given, appoint
20 his counsel as his agent for service of notice to appear. The appointment shall be
21 conclusively presumed to continue until the defendant files of record an affidavit
22 revoking or changing the appointment. The affidavit shall include the address at
23 which to serve his counsel. A commercial surety shall inscribe its proper mailing
24 address on the face of the power of attorney used to execute the bond. The agent or
25 bondsman posting the bond shall write his proper mailing address under his
26 signature. A bail bond shall not be set aside because of the invalidity of the
27 information required by this Article or for the failure to include the information
28 required by the provisions of this Article.
29 B. Each address provided pursuant to Paragraph A of this Article shall be
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1 conclusively presumed to continue for all proceedings on the bond until the party
2 providing the address changes it by filing a written declaration in the proceeding for
3 which the bond was filed.
4 C. By signing the bail bond, the defendant and his surety waive any right to
5 notice, except that provided for in Articles 344 and 349.3.
6 A surety company authorized to do business in the state of Louisiana may
7 become surety for the release of a person on a bail undertaking. The sufficiency of
8 security posted in the form of an appearance bond by a surety company, as required
9 by the provisions of Title 22 of the Louisiana Revised Statutes of 1950, shall be
10 determined solely by the commissioner of insurance. (Source: Art. 314) A contract
11 to indemnify a surety company against loss on a bail bond undertaking is valid and
12 enforceable. (Source: Art. 329)
13 (Source: C.Cr.P. Arts. 314 and 329)
14 Art. 323. Signature or declaration of person unable to write Secured personal
15 surety
16 When a person who is required to sign his name or to make a declaration in
17 writing under the provisions of this Code swears that he cannot sign or write, the
18 officer authorized to receive the signature or declaration in writing may, at the
19 request of the person, sign for him or make for him the declaration in writing, with
20 the same binding effect as if the person had himself signed or himself made the
21 declaration in writing; provided that the declaration and signature shall be witnessed
22 and signed by at least two competent witnesses.
23 A. A secured personal surety is a personal surety who meets all the
24 qualifications of law satisfies all the requirements of Article 311(5) and
25 specifically mortgages immovable property located in the state of Louisiana.
26 (Source: Art. 318)
27 B. Bail without surety may be secured by a mortgage on the property of
28 the defendant pursuant to this Article or unsecured. A defendant or a secured
29 personal surety, pursuant to Article 312, may establish a legal mortgage over
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1 immovable property in favor of the state of Louisiana or the proper political
2 subdivision to secure a bail obligation undertaking. (Source: Art. 319(A))
3 C. The mortgage is established upon the recordation of a written mortgage,
4 in authentic form satisfactory to the officer authorized to receive the bail, in the
5 mortgage records of the parish where the immovable is located that:
6 (1) Contains the name and signature of the person making the mortgage.
7 (2) Describes the immovable and declares that a mortgage is given over it as
8 security for the performance of the bail obligation.
9 (3) Certifies that the person making the mortgage owns the immovable and
10 states its value, in excess of the amount of all encumbrances against it.
11 (4) Attaches to it a copy of the order fixing the bail obligation. (Source: Art.
12 319(B))
13 D. The person providing the security shall deliver a certified copy of the
14 recorded statement establishing the mortgage and a mortgage certificate to the officer
15 authorized to receive the bail. The officer may require additional evidence of
16 ownership and value of the mortgaged property including a copy of the current tax
17 assessment. (Source: Art. 319(C))
18 E.(1) The recorder shall cancel the mortgage from his records upon the order
19 of the court. (Source: Art. 319(D)(1))
20 (2) In all other cases, the effect of its recordation shall cease ten years after
21 its recordation unless it is reinscribed in the manner otherwise provided by law.
22 (Source: Art. 319(D)(2))
23 F. Any materially false or incorrect statements made by a person who
24 intentionally and knowingly gives a mortgage or security interest pursuant to this
25 Article shall be prima facie proof of a violation of the provisions of R.S. 14:125,
26 false swearing. (Source: Art. 319(E))
27 (Source: C.Cr.P. Arts. 318 and 319)
28 Art. 324. Cash deposits Unsecured personal surety
29 A.(1) In lieu of a surety the defendant may furnish his personal undertaking,
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1 secured by a deposit with an officer authorized to accept the bail.
2 (2) The deposit shall consist of any of the following which are equal to the
3 amount of the bail:
4 (a) Cash.
5 (b) A certified or cashier's check on any state or national bank.
6 (c) Bonds of the United States government negotiable by delivery.
7 (d) Bonds of the state of Louisiana or any political subdivision thereof
8 negotiable by delivery.
9 (e) United States postal money orders or money orders issued by any state or
10 national bank.
11 (3) The court in the parishes of St. John the Baptist and St. Charles, by
12 written rule, may alter the percentage amount of bail to be deposited with the officer
13 authorized to accept the bond and authorize the officer to charge an administrative
14 fee, not to exceed fifteen dollars, for processing the bond.
15 B. Upon final disposition of all cases in which a deposit of money, checks,
16 bonds, or money orders has been made pursuant to this Article, and said deposits
17 have remained unclaimed for a period of one year from the date of the final
18 disposition, the officer authorized to accept said bail shall apply and use one-half of
19 such funds for the operation and maintenance of the office of the clerk of court, or
20 the office of the clerk of the criminal district court, or the office of the clerk of the
21 criminal district court in Orleans Parish, and one-half to the local governing authority
22 after advertising his intention to so utilize the funds by publication in the official
23 parish journal of a notice to the public containing an itemized list of all of such funds
24 on deposit, containing the names and last known addresses of defendants and the
25 docket numbers of the cases involved. The publication shall be made once within
26 thirty days after the final disposition of the case as aforesaid. The clerk shall also
27 send a notice by certified mail to each of such defendants at the last known address
28 of the defendant. Any interest earned on the funds deposited for bail shall be
29 disbursed as provided in Paragraph E of this Article.
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1 C. After the publication and mailing of the notice by certified mail, the clerk
2 of court, or the clerk of the criminal district court in Orleans Parish shall petition the
3 court of proper jurisdiction for permission to utilize the funds for the use, operation,
4 and maintenance of the office of the clerk of court or the clerk of criminal district
5 court in Orleans Parish.
6 D. When bail has been given in conformity with this Article, the money,
7 check, bond, or money order shall not be subject to garnishment, attachment, or
8 seizure under any legal process. An assignment or sale thereof by the owner, to be
9 valid, must be in the form of an authentic act and filed in the proceedings in the court
10 having jurisdiction to discharge the bail. The property shall remain on deposit and
11 the assignment or sale shall be contingent upon the nonforfeiture of the bail.
12 E. When money, checks, or money orders have been given for bail in
13 conformity with this Article, those funds may be deposited by the officer authorized
14 to accept bail into an interest-bearing account established exclusively for the deposit
15 of such funds. Interest earned on the deposits in the account shall be used solely for
16 the operation and maintenance of the office of the clerk of court.
17 A. A person in custody may be released by order of the court on an unsecured
18 personal surety bond bail undertaking. An unsecured personal surety is a personal
19 surety where the surety meets all the qualifications of law satisfies all the
20 requirements of Article 311(5) and lives and resides in the state of Louisiana
21 without specifically mortgaging or giving a security interest in any property as
22 security to guarantee the surety's performance. (Source: Art. 317)
23 B. A personal surety shall execute an affidavit that he possesses the
24 sufficiency and qualifications prescribed by Article 315 of a personal surety and
25 that he is not disqualified from becoming a surety by Article 320 327. The affidavit
26 shall list the number and amount of undischarged bail bonds undertakings, if any,
27 entered into by the personal surety. The officer accepting the bail may require the
28 personal surety to state in his affidavit the nature and value of his property not
29 exempt from execution, and the amount of his liabilities. An officer authorized to
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1 accept the bail shall have authority to administer any affidavit required of the person
2 signing a bail bond undertaking. (Source: Art. 321)
3 (Source: C.Cr.P. Arts. 317 and 321)
4 Art. 325. Bail without surety
5 A person in custody may be released by order of the court on his personal
6 bail undertaking pursuant to Article 329 without the necessity of furnishing a
7 surety, unless otherwise provided in this Title.
8 Art. 326. Condition of the bail undertaking Cash deposits
9 A. Except as provided in Paragraph B, the condition of the bail undertaking
10 in district, juvenile, parish, and city courts shall be that the defendant will appear at
11 all stages of the proceedings to answer the charge before the court in which he may
12 be prosecuted, will submit himself to the orders and process of the court, and will not
13 leave the state without written permission of the court. The bail obligation shall run,
14 subject to the provisions of Article 626, in favor of the state of Louisiana, or the city
15 or parish whose ordinance is charged to have been violated, with the proceeds to be
16 disposed of according to law. No error, inaccuracy, or omission in naming the
17 obligee on the bond is a defense to an action thereon.
18 B.(1) Upon conviction and imposition of sentence or the pronouncement of
19 sentence or condition of probation pursuant to Article 894 in misdemeanor cases, the
20 bail undertaking shall cease and the surety shall be relieved of all obligations under
21 the bond.
22 (2) Upon conviction in any felony case, the bail undertaking shall cease and
23 the surety shall be relieved of all obligations under the bond.
24 (3) In all cases, if necessary to assure the presence of the defendant at all
25 future stages of the proceedings, the court may in its discretion, in accordance with
26 Article 332 require the defendant to post another bond or other acceptable security,
27 or may release the defendant on bail without surety as provided for in Article 325.
28 The court may continue the existing bail undertaking with the written approval of the
29 surety on the bond. Such approval must be obtained from the surety after conviction.
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1 A.(1) In lieu of a surety the defendant may furnish his personal a bail
2 undertaking, secured by a deposit with an officer authorized to accept the bail. The
3 deposit shall consist of any of the following which are equal to the amount of the
4 bail:
5 (a) Cash.
6 (b) A certified or cashier's check on any state or national bank.
7 (c) Bonds of the United States government negotiable by delivery.
8 (d) Bonds of the state of Louisiana or any political subdivision thereof
9 negotiable by delivery.
10 (e) United States postal money orders or money orders issued by any state or
11 national bank.
12 (2) The court in the parishes of St. John the Baptist and St. Charles, by
13 written rule, may alter the percentage amount of bail to be deposited with the officer
14 authorized to accept the bond bail undertaking and authorize the officer to charge
15 an administrative fee, not to exceed fifteen dollars, for processing the bond bail
16 undertaking.
17 B. Upon final disposition of all cases in which a deposit of money, checks,
18 bonds, or money orders has been made pursuant to this Article, and said the deposits
19 have remained unclaimed for a period of one year from the date of the final
20 disposition, the officer authorized to accept said the bail shall apply and use one-half
21 of such funds for the operation and maintenance of the office of the clerk of court,
22 or the office of the clerk of the criminal district court, or the office of the clerk of the
23 criminal district court in Orleans Parish, and one-half to the local governing authority
24 after advertising his intention to so utilize the funds by publication in the official
25 parish journal of a notice to the public containing an itemized list of all of such funds
26 on deposit, containing the names and last known addresses of defendants and the
27 docket numbers of the cases involved. The publication shall be made once within
28 thirty days after the final disposition of the case as aforesaid. The clerk shall also
29 send a notice by certified mail to each of such defendants at the last known address
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1 of the defendant. Any interest earned on the funds deposited for bail shall be
2 disbursed as provided in Paragraph E of this Article.
3 C. After the publication and mailing of the notice by certified mail, the clerk
4 of court, or the clerk of the criminal district court in Orleans Parish shall petition the
5 court of proper jurisdiction for permission to utilize the funds for the use, operation,
6 and maintenance of the office of the clerk of court or the clerk of criminal district
7 court in Orleans Parish.
8 D. When bail has been given in conformity with this Article, the money,
9 check, bond, or money order shall not be subject to garnishment, attachment, or
10 seizure under any legal process. An assignment or sale thereof by the owner, to be
11 valid, must be in the form of an authentic act and filed in the proceedings in the court
12 having jurisdiction to discharge the bail. The property shall remain on deposit and
13 the assignment or sale shall be contingent upon the nonforfeiture of the bail.
14 E. When money, checks, or money orders have been given for bail in
15 conformity with this Article, those funds may be deposited by the officer authorized
16 to accept bail into an interest-bearing account established exclusively for the deposit
17 of such funds. Interest earned on the deposits in the account shall be used solely for
18 the operation and maintenance of the office of the clerk of court.
19 (Source: C.Cr.P. Art. 324)
20 Art. 327. Requisites of the bail undertaking Those who may not be sureties
21 A. The bail undertaking shall:
22 (1) Be in writing.
23 (2) State the court before which the defendant is bound to appear.
24 (3) Be entered into before an officer who is authorized to take it.
25 (4) State a single amount of bail for each charge.
26 B. The bail undertaking shall be enforceable if the above requirements are
27 met; and no officer may refuse to accept the posting of a bail bond and releasing a
28 defendant on bail if the provisions of Code of Criminal Procedure Article 314 and
29 the conditions set by this Article are met. A person shall not be discharged from his
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1 bail undertaking, nor shall a judgment of forfeiture be stayed, set aside, or reversed,
2 nor the collection of any such judgment be barred or defeated by reason of any defect
3 of form, omission of a recital, or of a condition of the undertaking, by reason of a
4 failure to note or record the default of any defendant or surety, or because of any
5 other irregularity.
6 A person shall not be released on bail for which an attorney at law, a judge,
7 or ministerial officer of a court becomes a surety or provides money or property for
8 bail; but the invalidity of such bail shall not be a defense to an action to forfeit and
9 enforce the bail.
10 (Source: C.Cr.P. Art. 320)
11 Art. 328. Substitution of security Bail undertaking
12 The defendant or his surety may, at any time before a breach of the bail
13 undertaking and with approval of the court in which the prosecution is pending,
14 substitute another form of security authorized by this Code. The original security,
15 including a surety, shall be released when the substitution of security is made.
16 A. The bail undertaking shall:
17 (1) Be in writing.
18 (2) State the court before which the defendant is bound to appear.
19 (3) Be entered into before an officer who is authorized to take it.
20 (4) State a single amount of bail for each charge. (Source: Art. 327(A))
21 B. The bail undertaking shall be enforceable if the above requirements are
22 met; and no officer may refuse to accept the posting of a bail bond undertaking and
23 releasing a defendant on bail if the provisions of Code of Criminal Procedure Article
24 314 and the conditions set by this Article Title are met. A person shall not be
25 discharged from his bail undertaking, nor shall a judgment of forfeiture be stayed,
26 set aside, or reversed, nor the collection of any such judgment be barred or defeated
27 by reason of any defect of form, omission of a recital, or of a condition of the
28 undertaking, by reason of a failure to note or record the default of any defendant or
29 surety, or because of any other irregularity. (Source: Art. 327(B)) The bail obligation
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1 undertaking shall run, subject to the provisions of Article 626, in favor of the state
2 of Louisiana, or the city or parish whose ordinance is charged to have been violated,
3 with the proceeds to be disposed of according to law. No error, inaccuracy, or
4 omission in naming the obligee on the bond bail undertaking is a defense to an
5 action thereon. (Source: Art. 326(A))
6 (Source: C.Cr.P. Arts. 326 and 327)
7 Art. 329. Contract to indemnify surety Declaration of residence; waiver of notice
8 A contract to indemnify a surety against loss on a bail bond is valid and
9 enforceable.
10 A. The defendant and personal surety signing a bail bond undertaking shall
11 write the address at which each can be served and mailing address, if different,
12 under their respective signatures and the last four digits of their social security
13 number. The defendant and his counsel may, with the Court's approval, by joint
14 affidavit filed of record in the proceeding matter in which the bond bail
15 undertaking was given, appoint his counsel as his agent for service of to whom
16 notice to appear can be sent. The appointment shall be conclusively presumed to
17 continue until the defendant, with court approval, files of record an affidavit
18 revoking or changing the appointment. The affidavit shall include the address at
19 which to serve his counsel to which notice to appear can be sent. A commercial
20 surety shall inscribe place its proper mailing address and electronic address on the
21 face of the power of attorney used to execute the bond bail undertaking. The agent
22 or bondsman posting the bond bail undertaking shall write place his proper mailing
23 address under his signature. A bail bond forfeiture judgment shall not be denied
24 or set aside because of the invalidity of the information required by this Article or
25 for the failure to include the information required by the provisions of this Article.
26 (Source: Art. 322(A))
27 B. When a person who is required to sign his name or to make a declaration
28 in writing under the provisions of this Code Title swears that he cannot sign or write,
29 the officer authorized to receive the signature or declaration in writing may, at the
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1 request of the person, sign for him or make for him the declaration in writing, with
2 the same binding effect as if the person had himself signed or himself made the
3 declaration in writing; provided that the declaration and signature shall be witnessed
4 and signed by at least two competent witnesses. (Source: Art. 323)
5 C. When a person who is required to sign his name or to make a
6 declaration in writing under the provisions of this Title indicates that he cannot
7 speak or write the English language, the officer authorized to receive the
8 signature or declaration in writing may provide either an interpreter or a
9 written form in the person's native language, enabling him to sign his name or
10 make a declaration in writing.
11 D. Each address provided pursuant to Paragraph A of this Article shall be
12 conclusively presumed to continue for all proceedings on the bond until the party
13 providing the address changes it by filing a written declaration in the proceeding
14 matter for which the bond bail undertaking was filed. (Source: Art. 322(B))
15 E. Except for the notice required by Article 330, By by signing the bail
16 bond undertaking, the defendant and his surety waive any right to of notice to
17 appear, except that provided for in Articles 344 and 349.3 including actual notice.
18 (Source: Art. 322(C))
19 (Source: C.Cr.P. Arts. 322 and 323)
20 Art. 330. Bail before conviction Notice of defendant's required appearance
21 Except as provided in Article 331, a person in custody charged with the
22 commission of an offense is entitled to be admitted to bail before conviction unless
23 the person is charged with a crime of violence as defined by law or with production,
24 manufacture, distribution, or dispensing or possession with intent to produce,
25 manufacture, distribute, or dispense a controlled dangerous substance as defined by
26 the Louisiana Controlled Dangerous Substances Law, and after a contradictory
27 hearing, conducted pursuant to the provisions of Article 330.1, the judge or
28 magistrate finds by clear and convincing evidence that the defendant may flee or
29 poses an imminent danger to any other person or the community.
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1 A. When a bail bond undertaking fixes an appearance date, the defendant
2 appears as ordered, and notice of the next appearance date is given to the defendant,
3 no additional notice of that appearance date is required to be given to the defendant
4 or the personal surety or the commercial surety or the agent or bondsman who posted
5 the bond bail undertaking for the commercial surety.
6 B. When a bail bond undertaking does not fix the appearance date, written
7 notice of the time, date, and place the defendant is first ordered by the court to appear
8 shall be given to the defendant or his duly appointed agent and his personal surety
9 or the commercial surety or the agent or bondsman who posted the bond bail
10 undertaking for the commercial surety.
11 C. If the defendant appears as ordered and the proceeding is continued to a
12 specific date, the defendant and the personal surety or the commercial surety or the
13 agent or bondsman who posted the bond bail undertaking for the commercial surety
14 and who has been given initial notice pursuant to Paragraph A or B of this Article,
15 need not be given notice of the new appearance date. If the defendant fails to appear
16 as ordered, or the proceeding is not continued to a specific date, the defendant or his
17 duly appointed agent, the personal surety or the agent or bondsman who posted the
18 bond bail undertaking for the commercial surety shall be given notice of the new
19 appearance date.
20 D. Notice required pursuant to the provisions of this Article to the defendant
21 and the personal surety or the commercial surety or the agent or bondsman who
22 posted the bond bail undertaking for the commercial surety shall be made to the
23 address provided pursuant to Article 322 329. Notice may be:
24 (1) Delivered by an officer designated by the court at least two days prior to
25 the appearance date.
26 (2) Mailed by United States first class mail or by electronic means in
27 accordance with Article 329 at least five days prior to the appearance date.
28 E. Failure to give the notice required by this Article relieves the surety from
29 liability on a judgment of bond forfeiture for the nonappearance of the defendant on
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1 that particular date.
2 (Source: C.Cr.P. Art. 344)
3 Art. 331. Capital offenses Discharge of bail obligation
4 A. A person charged with the commission of a capital offense shall not be
5 admitted to bail if the proof is evident and the presumption great that he is guilty of
6 the capital offense.
7 B. When a person charged with the commission of a capital offense makes
8 an application for admission to bail, the judge shall hold a hearing contradictorily
9 with the state.
10 C. The burden of proof:
11 (1) Prior to indictment is on the state to show that the proof is evident and the
12 presumption great that the defendant is guilty of the capital offense.
13 (2) After indictment is on the defendant to show that the proof is not evident
14 or the presumption is not great that he is guilty of the capital offense.
15 A. (1) Upon conviction and imposition of sentence or the pronouncement of
16 sentence or condition of probation pursuant to Article 894 in misdemeanor cases, the
17 bail undertaking shall cease and the surety shall be relieved of all obligations under
18 the bond bail undertaking. (Source: Art. 326(B)(1))
19 (2) Upon conviction in any felony case, the bail undertaking shall cease and
20 the surety shall be relieved of all obligations under the bond bail undertaking.
21 (Source: Art. 326(B)(2))
22 (3) In all cases, if necessary to assure the presence of the defendant at all
23 future stages of the proceedings, the court may in its discretion, in accordance with
24 Article 312 require the defendant to post another bond bail undertaking or other
25 acceptable security, or may release the defendant on bail without surety as provided
26 for in Article 325. The court may continue the existing bail undertaking with the
27 written approval of the surety on the bond bail undertaking. Such approval must be
28 obtained from the surety after conviction. (Source: Art. 326(B)(3))
29 B. When the district attorney dismisses an indictment or information and
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1 institutes a subsequent indictment or information for the same offense or for a lesser
2 offense based on the same facts, the court shall reinstate any bail discharged when
3 the district attorney dismissed the initial indictment or information if the surety
4 consents to the reinstatement expressly and in writing. Orleans Parish district judges
5 with criminal jurisdiction sitting en banc may adopt rules effectuating telephonic
6 communication and verification of bonds bail undertakings and releases. (Source:
7 Art. 334.5(A) and (B))
8 C. (1) A surety may surrender the defendant or the defendant may surrender
9 himself, in open court or to the officer charged with his detention, at any time prior
10 to forfeiture or within the time allowed by law for setting aside a judgment of
11 forfeiture of the bail bond. For the purpose of surrendering the defendant, the surety
12 may arrest him. The surety shall pay a fee of twenty-five dollars to the officer
13 charged with the defendant's detention for accepting the surrender, processing
14 the paperwork, and giving the surety a certificate of surrender. Upon the
15 surrender of the defendant, the officer shall detain the defendant in his custody as
16 upon the original commitment and shall acknowledge the surrender by a certificate
17 signed by him and delivered to the surety. The officer shall retain a copy and
18 forward a copy of the certificate of surrender to the clerk of court and the
19 prosecuting attorney.
20 (2) After compliance with the provisions of Paragraph F of this Article Upon
21 surrender of the defendant at any time prior to the expiration of one hundred
22 eighty days after the notice of warrant for arrest was sent, the surety shall be
23 fully and finally discharged and relieved, as provided for in Paragraphs C and D of
24 this Article, of all obligations under the bond bail undertaking by operation of law,
25 without the need to file a motion or other pleading. (Source: Art. 345(A))
26 D. A surety may constructively surrender the defendant only within one
27 hundred eighty days of when the notice of warrant for arrest was sent. After the
28 constructive surrender of the defendant, the surety shall be fully and finally
29 discharged and relieved of all obligations under the bail undertaking by
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1 operation of law, without the need to file a motion or other pleading.
2 E. At any time prior to forfeiture or within the time allowed by law for setting
3 aside a judgment for forfeiture of the bail bond the defendant's failure to appear
4 or within one hundred eighty days after the notice of warrant for arrest is sent,
5 the surety may file with the clerk of court and present to the court a certificate of
6 death naming the defendant as the deceased party. The certificate shall be under seal
7 of the authority confirming the defendant's death. Upon proof that the surety is
8 unable to obtain a certificate of death, the surety or the court may invoke a
9 contradictory hearing in order to establish proof of death by clear and
10 convincing evidence. If the court determines that the defendant is deceased
11 thereafter, the surety shall be fully and finally discharged and relieved of any and
12 all obligations under the bond bail undertaking. (Source: Art. 345(E))
13 F.(1) Forty-five days after the defendant's failure to appear and while
14 there is still an active arrest warrant in the proceeding for which the bond was
15 posted, the surety or bail bond producer who posted the bond may file with the
16 clerk of court where the charges are pending an affidavit requesting the
17 defendant be remanded and surrendered upon his appearance before the court.
18 The clerk of court shall forward a copy of the affidavit to the court before which
19 the charges are pending. The affidavit must meet all the requirements set forth
20 in R.S. 22:1585 and be filed before the court where the charges are pending. A
21 copy of the affidavit must be provided to the prosecuting attorney.
22 (2) Upon the appearance of the defendant within one hundred eighty
23 days of when the notice of warrant for arrest was sent, the court shall grant the
24 relief requested and remand the defendant to the custody of the officer
25 originally charged with the defendant's detention. Upon remand and payment
26 by the surety of the twenty-five dollar fee to the officer charged with the
27 defendant's detention, the court shall relieve the surety of all obligations under
28 the bail undertaking.
29 G. During the period provided for surrendering the defendant Any time after
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1 the defendant's failure to appear and the issuance of the warrant of arrest, the
2 surety may request that the officer originally charged with the detention of a felony
3 defendant place the name of the felony defendant into the National Crime
4 Information Center registry. The officer shall determine if the placement of the
5 name is authorized by the rules governing the National Crime Information
6 Center registry within thirty days of the request. If not authorized, the officer
7 shall provide notice to the surety of the reason for nonplacement. If placement
8 is authorized, the surety shall pay to that officer a fee of twenty-five dollars for
9 processing the placement. If, authorized and after payment of the twenty-five-dollar
10 fee, the name of the defendant is removed from the National Crime Information
11 Center registry without cause during the period provided for surrendering the
12 defendant, the surety shall be relieved of all obligations under the bond the period
13 for filing a rule to show cause under Article 349.2 shall be suspended until the
14 name of the defendant is placed back in the registry. (Source: Art. 345(G))
15 H. In the case of any fee required under the provisions of this Article, the
16 officer charged with the defendant's detention shall provide the surety with a receipt
17 indicating the amount of the fee collected, the name of the defendant, the purpose of
18 the fee collected, the date and time the defendant was surrendered, the name of the
19 person from whom the fee was collected, and information sufficient to identify any
20 applicable bond bail undertaking, and the date and time the defendant was
21 surrendered. (Source: Art. 345(H))
22 I. The court shall order the bail bond obligation canceled when there is no
23 further liability thereon. (Source: Art. 348)
24 (Source: C.Cr.P. Arts. 326, 334.5, 345, and 348)
25 Art. 332. Bail after conviction Court order for arrest of defendant
26 A. A convicted person shall be remanded to jail to await sentence unless any
27 of the following occur:
28 (1) He is allowed to remain free on a bail obligation posted prior to
29 conviction by operation of Article 326(B), and the bail previously fixed is in
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1 accordance with all of the applicable provisions of this Article.
2 (2) He is released by virtue of a bail obligation posted after conviction, which
3 bail was fixed in accordance with this Article.
4 B. After conviction and before sentence, bail shall be allowed if the
5 maximum sentence which may be imposed is imprisonment for five years or less.
6 Bail may be allowed pending sentence if the maximum sentence which may be
7 imposed is imprisonment exceeding five years, except when the court has reason to
8 believe, based on competent evidence, that the release of the person convicted will
9 pose a danger to any other person or the community, or that there is a substantial risk
10 that the person convicted might flee.
11 C. After sentence and until final judgment, bail shall be allowed if a sentence
12 of five years or less is actually imposed. Bail may be allowed after sentence and until
13 final judgment if the sentence actually imposed exceeds imprisonment for five years,
14 except when the court has reason to believe, based on competent evidence, that the
15 release of the person convicted will pose a danger to any other person or the
16 community, or that there is a substantial risk that the person convicted might flee.
17 D. In those instances above in which bail shall be allowed, the court shall
18 consider whether the release of the person convicted or sentenced will pose a danger
19 to any other person or the community in determining the amount of bail.
20 E. After conviction of a capital offense, a defendant shall not be allowed bail.
21 The court in which the defendant is held to answer may issue a warrant for
22 the arrest and commitment of the defendant who is at large on bail when any of the
23 following are true:
24 (1) There has been a breach of the bail undertaking.
25 (2) It appears that a surety has become insufficient, is dead, cannot be found,
26 or has ceased to meet the qualifications of law or does not own adequate immovable
27 property within the state.
28 (3) The court is satisfied that the bail should be increased or new or additional
29 security required.
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1 (Source: C.Cr.P. Art. 346)
2 Art. 333. Authority to fix bail Failure to appear; issuance of arrest warrant
3 The following magistrates, throughout their several territorial jurisdictions,
4 shall have authority to fix bail:
5 (1) District courts having criminal jurisdiction, in all cases.
6 (2) City or parish courts and municipal and traffic courts of New Orleans
7 having criminal jurisdiction, in cases not capital.
8 (3) Mayor's courts and traffic courts in criminal cases within their trial
9 jurisdiction.
10 (4) Juvenile and family courts in criminal cases within their trial jurisdiction.
11 (5) Justices of the peace in cases not capital or necessarily punishable at hard
12 labor.
13 If at the time fixed for appearance the defendant, who was properly noticed,
14 fails to appear as required by the court, the judge may, court shall, on its own
15 motion or shall on motion of the prosecuting attorney, immediately issue a warrant
16 for the arrest of the defendant.
17 (Source: C.Cr.P. Art. 349.1)
18 Art. 334. Factors in determining amount of bail Notice of warrant of arrest
19 The amount of bail shall be such that, in the judgment of the court,
20 commissioner, or magistrate, it will insure the presence of the defendant, as required,
21 and the safety of any other person and the community, having regard to:
22 (1) The seriousness of the offense charged, including but not limited to
23 whether the offense is a crime of violence or involves a controlled dangerous
24 substance.
25 (2) The weight of the evidence against the defendant.
26 (3) The previous criminal record of the defendant.
27 (4) The ability of the defendant to give bail.
28 (5) The nature and seriousness of the danger to any other person or the
29 community that would be posed by the defendant's release.
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1 (6) The defendant's voluntary participation in a pretrial drug testing program.
2 (7) The absence or presence of any controlled dangerous substance in the
3 defendant's blood at the time of arrest.
4 (8) Whether the defendant is currently out on bond on a previous felony
5 arrest for which he is awaiting institution of prosecution, arraignment, trial, or
6 sentencing.
7 (9) Any other circumstances affecting the probability of defendant's
8 appearance.
9 (10) The type or form of bail.
10 After entering the fact of the signing of the judgment of bond forfeiture in the
11 court minutes, the clerk of court shall promptly mail notice of the signing of the
12 judgment of bond forfeiture. After a warrant for arrest is issued, the clerk of
13 court shall, within sixty days, send a notice of warrant for arrest to the
14 prosecuting attorney. The notice of the signing of the judgment shall also be mailed
15 sent by United States certified mail with return receipt affixed thereto or electronic
16 means to the defendant, the bail agent or bondsman, if any, and the personal
17 surety, the agent, or bondsman who posted the bond for the commercial surety, and
18 the commercial surety at the addresses designated in Article 322 or an address
19 registered with the Louisiana Department of Insurance. Notice shall be sent by
20 electronic means or certified mail to the commercial surety. All notices shall be
21 sent to the addresses provided pursuant to Article 329 or an address registered
22 with the Louisiana Department of Insurance. The notice to the commercial surety
23 shall include the power of attorney number used to execute the bail undertaking
24 bond without which the bond obligation of the commercial surety shall be suspended
25 until the power of attorney number is supplied, provided the commercial surety
26 provides notice to the clerk of court who mailed the notice to the surety of the failure
27 to include such number in the notice by certified mail not later than thirty days
28 following receipt of notice of the judgment. If the power of attorney number is not
29 provided to the commercial surety within thirty days after the date of receipt by the
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1 clerk of court of the notice that it was not included in the notice of the judgment, the
2 commercial surety shall be released from the bond obligation. Failure to include the
3 power of attorney number shall not affect the validity or enforcement of a
4 resulting judgment. (Source: Art. 349.3(A)(1)) After mailing sending the notice of
5 the signing of the judgment of bond forfeiture warrant for arrest, the clerk of court
6 shall execute an affidavit of the mailing a certificate that notice was sent and place
7 the affidavit and the return receipts certificate in the record. (Source: Art. 349.3(B))
8 Failure to mail send notice of the signing of the judgment to the commercial surety
9 within sixty days after the defendant fails to appear shall release the sureties surety
10 of all obligations under the bond bail undertaking. (Source: Art. 349.3(C))
11 (Source: C.Cr.P. Art. 349.3)
12 Art. 335. Other conditions related to the appearance of the defendant Period for
13 filing a rule to show cause
14 The court may impose any additional condition of release that is reasonably
15 related to assuring the appearance of the defendant before the court. Violation of
16 such condition by the defendant shall be considered as a constructive contempt of
17 court, and shall be grounds for revocation of bail, but does not give rise to a
18 forfeiture.
19 If the defendant fails to make an appearance and has not been
20 surrendered or constructively surrendered within one hundred eighty days of
21 the execution of the certificate that notice of warrant for arrest was sent, the
22 prosecuting attorney may file a rule to show cause requesting that a bond
23 forfeiture judgment be rendered. The rule to show cause shall be mailed to the
24 defendant and served on all other parties against whom a judgment is sought.
25 The rule to show cause shall be set for a contradictory hearing. The time period
26 for filing a rule to show cause to obtain a judgment of bond forfeiture does not
27 begin until after the notice of warrant for arrest is sent.
28 Art. 336. Release conditioned on participation in pretrial drug testing program Proof
29 necessary at rule to show cause
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1 A.(1) Every person arrested for a violation of the Uniform Controlled
2 Dangerous Substances Law or a crime of violence as provided in R.S. 14:2(B) shall
3 be required to submit to a pretrial drug test for the presence of designated substances
4 in accordance with the provisions of this Article and rules of court governing such
5 testing. A person arrested for the above referenced crimes, who tests positive for the
6 presence of one or more of the designated substances set forth in Subparagraph (2)
7 of Paragraph B of this Article or any person arrested for a violation of R.S. 40:961
8 through 1036, if released by order of court on his personal surety, shall meet the
9 requirements of Article 315 for a personal surety and shall, as a condition of bail, be
10 required to participate in a pretrial drug testing program.
11 (2) Every person arrested for a felony, not otherwise required to submit to a
12 pretrial drug test as provided for in Subparagraph (1) of this Paragraph, may be
13 required to submit to a pretrial drug test for the presence of designated substances
14 in accordance with the provisions of this Article and rules of court governing such
15 testing. A person arrested for a felony who tests positive for the presence of one or
16 more of the designated substances set forth in Subparagraph (2) of Paragraph B of
17 this Article or any person arrested for a violation of R.S. 40:961 through 1036, if
18 released by order of court on his personal surety, shall meet the requirements of
19 Article 315 for a personal surety and may, as a condition of bail, be required to
20 participate in a pretrial drug testing program.
21 (3) Every person arrested for a misdemeanor may be required to submit to a
22 pretrial drug test for the presence of designated substances in accordance with the
23 provisions of this Article and rules of court governing such testing. A person arrested
24 for a misdemeanor who tests positive for the presence of one or more of the
25 designated substances set forth in Subparagraph (2) of Paragraph B of this Article
26 or any person arrested for a violation of R.S. 40:961 through 1036, if released by
27 order of court on his personal surety, shall meet the requirements of Article 315 for
28 a personal surety and may, as a condition of bail, be required to participate in a
29 pretrial drug testing program.
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1 (4) The provisions of this Paragraph requiring mandatory pretrial drug testing
2 shall be contingent upon receipt of adequate funding to cover the costs of such
3 testing, as provided in Paragraph E of this Article.
4 B. The court may, and in all municipalities with a population of three
5 hundred thousand or more persons shall, implement a pretrial drug testing program
6 which shall provide for the following:
7 (1) Mandatory participation for all persons arrested for violations of state
8 law.
9 (2) Drug testing to determine the presence of phencyclidine (PCP), opiates
10 (heroin), cocaine, methadone, amphetamines, or marijuana, prior to first court
11 appearance and random testing thereafter to verify that the person is drug free.
12 (3) Restrictions on the use of any and all test results to ensure that they are
13 used only for the benefit of the court to determine appropriate conditions of release,
14 monitoring compliance with court orders, and assisting in determining appropriate
15 sentences. A form statement shall be signed by the law enforcement agency and the
16 person in custody stipulating that under no circumstances shall the information be
17 used as evidence or as the basis for additional charges.
18 (4) Reasonable testing procedures to ensure the fair administration of the test
19 and protection for the chain of custody for any evidence obtained.
20 C. If the person fails to comply with the pretrial drug testing program rules,
21 the court may hold him in contempt and impose sanctions the court deems
22 appropriate, including the posting of additional bail.
23 D. No person shall be released under the provisions of the pretrial drug
24 testing program unless he agrees to do the following:
25 (1) Submit to continued random testing to verify that he is drug free.
26 (2) Refrain from the use or possession of any controlled dangerous substance
27 or any substance designated by the court.
28 E. The implementation of any pretrial drug testing program authorized
29 pursuant to the provisions of this Article shall be contingent upon receipt by the court
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1 requiring the test of sufficient federal or other funding to conduct the testing program
2 in accordance with the provisions of this Article and any rules of court.
3 F. No elected official who is in any way connected with the administration
4 of the pretrial drug testing program provided for in this Article, either directly or
5 indirectly, shall have any financial interest, either directly or indirectly, in any drug
6 testing company participating in such pretrial drug testing program.
7 G. All contracts awarded to any drug testing company authorized to conduct
8 the pretrial drug testing program provided for in this Article shall be awarded in
9 accordance with the provisions governing public bids, R.S. 38:2181 et seq.
10 A. The court at a contradictory hearing shall forfeit the bail undertaking
11 and sign a judgment of bond forfeiture upon proof of all of the following:
12 (1) The bail undertaking.
13 (2) The power of attorney, if any.
14 (3) Notice to the defendant and the surety as required by Article 334.
15 (4) Proof that more than one hundred eighty days have elapsed since the
16 notice of warrant for arrest was sent. (Source: Art. 349.2(A))
17 B. The court shall immediately issue a warrant for the arrest of the person
18 failing to appear and order a judgment decreeing the forfeiture of the bond and The
19 judgment of bond forfeiture shall be issued against the defendant and his sureties
20 in solido for the full amount of the bond bail. A bail agent who represents the surety
21 as an insurance agent shall not be solidarily liable for the judgment of bond
22 forfeiture of a bond against the defendant and his sureties. In the event that a bail
23 agent who represents the surety as an insurance agent is held solidarily liable, then
24 that bail agent may request to be released from the judgment, and. However, the
25 release of the bail agent shall have no effect on the judgment decreeing the forfeiture
26 of the bond bail undertaking against the defendant and his sureties. (Source: Art.
27 349(B) and (C))
28 C. The judgment shall include the address and the last four digits of the social
29 security number for the defendant and his the personal sureties. A judgment of bond
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1 forfeiture shall not be set aside because of the invalidity of the information required
2 by the provisions of this Article or for the failure to include the information required
3 by this Article. (Source: Art. 349.2(B))
4 (Source: C.Cr.P. Arts. 349 and 349.2)
5 Art. 337. Juvenile records to determine bail Interruption of the period for
6 obtaining a bond forfeiture judgment
7 A. For the purpose of fixing bail, a magistrate may make a written request of
8 any juvenile court for an abstract containing only the delinquent acts of a defendant
9 currently before the requesting magistrate. The request shall be promptly complied
10 with; however, not more than forty-eight hours, exclusive of Saturdays, Sundays, and
11 legal holidays, shall lapse before the requested information is deposited in the mail,
12 addressed to the requesting court.
13 B. The requesting court shall not copy, duplicate, or otherwise reproduce
14 such juvenile records, and these shall be deposited in the mail and addressed to the
15 issuing juvenile court within seventy-two hours, exclusive of Saturdays, Sundays,
16 and legal holidays, after bail is determined.
17 C. Failure to comply with the provisions of this Article shall subject the
18 violating court to disciplinary action by the Supreme Court of Louisiana upon receipt
19 by the judicial administrator of the supreme court of a written complaint,
20 subsequently substantiated.
21 An appearance by the defendant shall interrupt the period for obtaining
22 a bond forfeiture judgment. An appearance by the defendant does not relieve
23 the surety of its bail undertaking obligations.
24 Art. 338. Form and contents of bail order Nonforfeiture situations
25 An order fixing bail shall be in writing, set the type and a single amount of
26 bail for each charge, designate the officer or officers authorized to accept the bail,
27 and shall be signed by the magistrate. An order fixing bail may issue on request of
28 the state or defendant, or on the initiative of the judge or magistrate.
29 A. A judgment decreeing the forfeiture of an appearance bond a bail
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1 undertaking shall not be rendered if it is shown to the satisfaction of the court
2 proven, at or prior to the hearing on a rule to show cause, that the defendant,
3 principal in on the bond bail undertaking, is prevented from attending failed to
4 appear in court because of any of the following: (Source: Art. 349.9(A))
5 (1) He is The defendant was serving in the armed forces of the United
6 States. (Source: Art. 349.9(A)(3))
7 (2) He is The defendant was a member of the Louisiana National Guard
8 called to duty pursuant to R.S. 29:7. This provision does not apply to appearances
9 in a state military court. (Source: Art. 349.9(A)(4))
10 (3) The defendant was prevented from appearing due to a state of
11 emergency declared by the governor.
12 B. There shall be a rebuttable presumption that the calling of the
13 defendant to duty pursuant to R.S. 29:7 prevented the defendant, principal on
14 the bail undertaking, from attending court.
15 Comments - 2016
16
17 (a) The term "serving in the armed forces of the United States" refers
18 to service within (1) the armed forces on active duty, (2) the National Guard
19 while on full-time National Guard Duty, or (3) a Reserve Component while
20 performing inactive-duty training. See 10 U.S.C. § 976(a)(1) (2015); see also
21 10 U.S.C. § 101(d) (2015) (defining the terms "active duty," "full-time
22 National Guard duty," and "inactive-duty training").
23
24 (b) Note that federal law currently provides that "[a] court may not
25 enforce a bail undertaking during the period of military service of the
26 principal on the bond when military service prevents the surety from
27 obtaining the attendance of the principal. The court may discharge the surety
28 and exonerate the bail, in accordance with principles of equity and justice,
29 during or after the period of military service of the principal." 50 App. U.S.C.
30 § 513(c) (2015); see also 50 App. U.S.C. § 511 (2015) (defining the terms
31 "military service" and "period of military service").
32
33 (Source: C.Cr.P. Art. 349.9)
34 Art. 339. Notice of judgment
35 A. Notice of the signing of judgment of bond forfeiture shall be mailed
36 by the clerk of court to the counsel of record for each party, and to each party
37 not represented by counsel pursuant to Code of Civil Procedure Article 1913.
38 B. The clerk shall file a certificate in the record showing the date on
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1 which the notice of the signing of the judgment was mailed.
2 Art. 340. Amount of bail in felony cases; schedules of bail in noncapital cases
3 Recordation of judgment
4 A. Unless the bail is fixed by a schedule in accordance with Paragraph B, the
5 amount of bail in felony cases shall be specifically fixed in each case. A person shall
6 not be released on bail pursuant to a general order which authorizes the sheriff, or
7 other officers, to take bail and fixes the amount thereof at a certain sum for particular
8 felonies.
9 B. A schedule of bail according to the offense charged in noncapital felony
10 cases may be fixed by a district court. The court order setting the bail schedule shall
11 fix the amount of bail for each offense listed, designate the officer or officers
12 authorized to accept the bail, and order that bail be taken in conformity with the
13 schedule. It may also contain a general provision designating the amount of bail for
14 any noncapital felony not listed in the schedule. A copy of the schedule shall be sent
15 to all jails, sheriff's offices, and police stations within the judicial district. A bail
16 schedule may be revised or rescinded at any time.
17 C. A person charged with the commission of a felony for which bail is fixed
18 by a schedule may give bail according to the schedule or demand a special order
19 fixing bail.
20 D. Bail herein may be set above the scheduled amount if the court deems it
21 appropriate or the district attorney moves for good cause to have the bail set above
22 the scheduled amount and the court finds it appropriate.
23 A. After mailing notice of the signing of the judgment of bond forfeiture, the
24 The district attorney shall may cause the judgment to be recorded in every parish in
25 which the recordation may be proper. Every such recordation shall be without cost,
26 pursuant to R.S. 13:4521, and shall operate as a judicial mortgage against the
27 defendant and all his sureties.
28 B. Prior to recordation, the district attorney shall verify the inclusion of
29 information on the judgment, namely, the address and the last four digits of the
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1 social security number for the defendant and his the personal sureties. Third parties
2 may rely upon the accuracy of the information required by the provisions of this
3 Article for purposes of distinguishing the identity of the defendant and his sureties.
4 Any judgment of bond forfeiture containing inaccurate information required by the
5 provisions of this Article shall be deemed ineffective as a judicial mortgage to third
6 parties who rely upon that information.
7 (Source: C.Cr.P. Art. 349.4)
8 Art. 341. Schedules of bail in misdemeanor cases Appeals
9 A. Schedules of bail according to the offense charged in misdemeanor cases
10 may be fixed by district, parish, and city courts for offenses within their respective
11 trial jurisdictions. The type or form of bail shall not be set in the bail schedule. When
12 more than one court has trial jurisdiction over an offense, the applicable bail
13 schedule shall be that of the court in which the case is to be tried.
14 B. The court order setting the bail schedule shall fix the amount of bail for
15 each offense listed, designate the officer or officers authorized to accept the bail, and
16 order that bail be taken in conformity with the schedule. It may also contain a general
17 provision designating the amount of bail for any misdemeanor not listed in the
18 schedule. A copy of the schedule shall be sent to all jails, sheriff's offices, and police
19 stations within the judicial district, parish, or city, respectively. A bail schedule may
20 be revised or rescinded at any time.
21 C. If a bail schedule has been set up and bail has not previously been
22 specially fixed, a person charged with the commission of a misdemeanor has the
23 right either to give bail according to the bail schedule, or to demand a special order
24 fixing type or form of bail and amount of bail.
25 The rights of appeal of a bail undertaking forfeiture judgment shall be
26 governed by the Code of Civil Procedure Article 2081 et seq.
27 (Source: Art. 349.6)
28 Art. 342. Increase or reduction of bail; sufficiency of security Enforcement of
29 judgment
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1 The court having trial jurisdiction over the offense charged, on its own
2 motion or on motion of the state or defendant, for good cause, may either increase
3 or reduce the amount of bail, or require new or additional security. For purposes of
4 this Article, good cause for increase of bail specifically includes but is not limited
5 to the rearrest of the defendant on offenses alleged to have been committed while out
6 on bond. The modification of any bail order wherein a bail bond has been posted by
7 a criminal defendant and his sureties shall upon said modification terminate the
8 liability of the defendant and his sureties under the previously existing bail contract.
9 A new bail must be posted in the amount of the new bail order.
10 After the delay for filing a suspensive appeal has elapsed or when a
11 judgment becomes final and definitive, the prosecuting attorney may file a rule
12 to show cause in accordance with R.S. 22:1441 or collect the judgment in the
13 same manner as a civil judgment.
14 (Source: C.Cr.P. Art. 349.7)
15 Section 2. R.S. 15:85 is hereby amended and reenacted to read as follows:
16 §85. Failure to satisfy judgment of bond forfeiture
17 A. If a defendant fails to appear after January 1, 2017, and a judgment of
18 bond forfeiture rendered after June 22, 1993, against a commercial surety company
19 has not been satisfied within two hundred ten days after the date of mailing the
20 notice of the signing of the judgment of bond forfeiture for bonds that have a face
21 value under fifty thousand dollars, or within four hundred days from mailing the
22 notice of the signing of the judgment of bond forfeiture for bonds which have a face
23 value of fifty thousand dollars or more, nor has a suspensive appeal or other
24 proceeding challenging the bond forfeiture been timely filed perfected, the
25 prosecuting attorney may file with the district court, in the parish where the bond
26 bail undertaking is forfeited, a rule to show cause why that commercial surety
27 company should not be prohibited from executing criminal bail bonds undertakings
28 before the court issuing the judgment of bond forfeiture.
29 B. At the rule to show cause, the court may consider only issues which would
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1 interrupt the enforceability of the judgment. The court may issue an order enjoining
2 the commercial surety company from posting criminal bail bonds undertakings
3 before the court issuing the judgment of bond forfeiture if the judgment is not has
4 not been satisfied within ten days and if the court finds all of the following:
5 (1) A defendant failed to appear after January 1, 2017, and a judgment
6 of bond forfeiture has been rendered, after June 22, 1993, against the commercial
7 surety.
8 (2) Proper notice pursuant to Code of Criminal Procedure Article 349.3 339
9 has been mailed.
10 (4)(3) The defendant has neither not been surrendered, constructively
11 surrendered, nor appeared within one hundred eighty days of the date of mailing the
12 notice of the signing of the judgment of bond forfeiture for bonds that have a face
13 value of fifty thousand dollars or more, and the defendant has not been surrendered
14 together with ten percent of the total amount of the bond more than one hundred
15 eighty days but within two hundred seventy days after the date of mailing the notice
16 of the signing of the judgment of bond forfeiture the execution of the certificate
17 that notice of warrant for arrest was sent.
18 (3)(4) No The time delays for taking a suspensive appeal, as set forth in
19 Code of Civil Procedure Article 2123, have run and no suspensive appeal has
20 been taken.
21 (5) Two hundred ten days have passed since the date of mailing the notice of
22 the signing of the judgment of bond forfeiture for bonds that have a face value under
23 fifty thousand dollars, or four hundred days have passed since the date of mailing the
24 notice of the signing of the judgment of bond forfeiture for bonds that have a face
25 value of fifty thousand dollars or more.
26 (6) The judgment of bond forfeiture has not been satisfied by payment of the
27 full amount for bonds that have a face value under fifty thousand dollars, or has not
28 been satisfied by the surrender or the appearance of the defendant together with
29 payment in cash of ten percent of the total bond amount for bonds that have a face
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1 value of fifty thousand dollars or more, if applicable.
2 C. The burden of proof at the hearing shall be upon the commercial surety by
3 a preponderance of evidence and shall be limited to documents contained in the
4 official court record where the judgment was rendered. The surety company may use
5 evidence not contained in the record to show that it did not receive post-forfeiture
6 notice of the signing of the judgment of bond forfeiture or the post-forfeiture
7 notice was not properly mailed.
8 Section 3. The introductory paragraph of R.S. 22:1441(A) and (A)(1) through (5),
9 (C)(1), the introductory paragraph of (C)(2) and (C)(2)(a) through (e), and (D) are hereby
10 amended and reenacted and R.S. 22:1441(C)(3) through (5) are hereby enacted to read as
11 follows:
12 §1441. Failure to timely satisfy claim under criminal bond contract
13 A. Any A prosecuting attorney may file with the office of the commissioner
14 of insurance's office insurance a rule to show cause if all the following are true:
15 (1) A defendant failed to appear after January 1, 2017, and a judgment
16 of bond forfeiture has been rendered after June 22, 1993, against the commercial
17 surety underwriter.
18 (2) Notice pursuant to Code of Criminal Procedure Article 349.3 339 has
19 been mailed.
20 (3) All time delays for taking a suspensive appeal, as set forth in Code of
21 Civil Procedure Article 2123, have run and no No suspensive appeal has been
22 taken.
23 (4) The defendant has neither been surrendered, constructively surrendered,
24 nor appeared within one hundred eighty days of mailing of the notice of the signing
25 of the judgment of bond forfeiture the execution of the certificate that notice of
26 warrant for arrest was sent.
27 (5) More than one hundred eighty days has have lapsed from the mailing of
28 the notice of the signing of the judgment of bond forfeiture since the execution of
29 the certificate that notice of warrant for arrest was sent.
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1 * * *
2 C.(1) Within thirty days of the filing of a rule to show cause by the
3 prosecuting attorney with the commissioner of insurance, the commissioner of
4 insurance shall notify provide written notice to the insurance company, the or
5 commercial surety, or Lloyd's Association, in writing, at the address of the home
6 office of that organization by certified mail, setting a time, place, and date of the
7 hearing, of the filing of the rule to show cause and bail bond forfeiture judgment
8 ordering the insurance company or commercial surety to pay the judgment of
9 bond forfeiture. which shall not be more than sixty days from the date of receipt of
10 notice from the prosecuting attorney. If after the hearing, the hearing officer finds
11 that there is no just cause or legal reason for the surety's nonpayment, the
12 commissioner shall take any action deemed necessary for collection of the amount
13 owed, including suspension of the surety from doing business in the state of
14 Louisiana.
15 (2) The commissioner shall order the commercial surety underwriter to pay
16 immediately pay the judgment of bond forfeiture, if the commissioner finds that all
17 of the following are true:
18 (a) A defendant failed to appear after January 1, 2017, and a judgment
19 of bond forfeiture has been rendered after June 22, 1993, against the commercial
20 surety underwriter.
21 (b) Notice pursuant to Code of Criminal Procedure Article 349.3 339 has
22 been mailed.
23 (c) No All time delays for taking a suspensive appeal, as set forth in Code
24 of Civil Procedure Article 2123, have run and no suspensive appeal has been
25 taken.
26 (d) The defendant has neither been surrendered, constructively surrendered,
27 nor appeared within one hundred eighty days of mailing of the notice of the signing
28 of the judgment of bond forfeiture the execution of the certificate that notice of
29 warrant for arrest was sent.
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1 (e) More than one hundred eighty days has have lapsed from the mailing of
2 the notice of the signing of the judgment of bond forfeiture since the execution of
3 the certificate that notice of warrant for arrest was sent.
4 * * *
5 (3) Within thirty days after the commercial surety or insurance company is
6 notified by the commissioner of the rule to show cause and bail bond forfeiture, the
7 commercial surety or insurance company shall provide to the commissioner evidence
8 that the forfeiture was paid, or that a motion contesting the validity of the bail bond
9 forfeiture was filed in the court where the judgment of bail bond forfeiture was
10 rendered. The commercial surety or insurance company may, for good cause shown,
11 petition the commissioner in writing for an extension of time. The granting or denial
12 of the extension shall be at the sole discretion of the commissioner.
13 (4) If, after thirty days, the commercial surety or insurance company has not
14 provided evidence that the judgment of bail bond forfeiture was paid or that a motion
15 contesting the validity of the judgment of bail bond forfeiture was filed, the
16 commissioner shall petition the division of administrative law to hold a hearing,
17 naming the commercial surety or insurance company as the respondent requiring the
18 commercial surety or insurance company to show cause why the commissioner's
19 order to pay the bond forfeiture should not be upheld and confirmed. Upon receipt
20 of the commissioner's petition to hold a hearing, the division of administrative law
21 shall notify the commercial surety or insurance company at the address of the home
22 office of that organization of the setting of the time, place, and date for a hearing to
23 be held in the manner provided in Chapter 12 of this Title, R.S. 22:2191 et seq.
24 (5) At the hearing, the administrative law judge must rule whether the
25 following are true:
26 (a) A defendant failed to appear after January 1, 2017, and a judgment of
27 bond forfeiture has been rendered, against the commercial surety underwriter.
28 (b) Notice pursuant to Code of Criminal Procedure Article 339 has been
29 mailed.
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1 (c) All time delays for taking a suspensive appeal, as set forth in Code of
2 Civil Procedure Article 2123, have run and no suspensive appeal has been
3 taken.
4 (d) The defendant has neither been surrendered, constructively
5 surrendered, nor appeared within one hundred eighty days of the execution of
6 the certificate that notice of warrant for arrest was sent.
7 (e) More than one hundred eighty days have lapsed since the execution
8 of the certificate that notice of warrant for arrest was sent.
9 (f) The judgment of bond forfeiture has not been satisfied by payment.
10 D.(1) The burden of proof at the hearing shall be upon the commercial surety
11 by a preponderance of evidence and shall be limited to documents contained in the
12 official court record where the judgment was rendered. The surety company may use
13 evidence not contained in the record to show that it did not receive post-forfeiture
14 notice of the signing of the judgment of bond forfeiture or the post-forfeiture
15 notice required pursuant to Code of Criminal Procedure Article 349.3 was not
16 properly mailed.
17 (2) If the commercial surety or insurance company does not meet the
18 burden of proof set forth in Paragraph (1) of this Subsection, then the
19 administrative law judge shall enter an order upholding and confirming the
20 commissioner's order to the commercial surety or insurance company to pay
21 the bond forfeiture.
22 * * *
23 Section 4. Code of Criminal Procedure Articles 327.1, 330.1, 330.2, 330.3, 334.1,
24 334.2, 334.3, 334.4, 334.5, 334.6, 335.1, 335.2, 336.1, 336.2, 343, 344, 345, 346, 347, 348,
25 349, 349.1, 349.2, 349.3, 349.4, 349.5, 349.6, 349.7, 349.8, and 349.9 are hereby repealed
26 in their entirety.
27 Section 5. The provisions of this Act shall become effective on January 1, 2017.
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The original instrument was prepared by Alden A. Clement, Jr. The
following digest, which does not constitute a part of the legislative
instrument, was prepared by Thomas L. Tyler.
DIGEST
SB 123 Reengrossed 2016 Regular Session Claitor
Present law (C.Cr.P. Arts. 311 through 349.9) provides for Title VIII of the Code of
Criminal Procedure with respect to bail.
Proposed law (C.Cr.P. Arts. 311 through 342) provides for a revision and reorganization of
present law.
Present law (R.S. 15:85) provides for the failure to satisfy a judgment of bond forfeiture.
Proposed law provides for revisions with respect to failure to appear, surrender of the
defendant, and the time delays for taking a suspensive appeal, as well as technical
corrections to present law based on the reorganization of Title VIII of the Code of Criminal
Procedure.
Present law (R.S. 22:1441) provides for the failure to timely satisfy a claim under a criminal
bond contract.
Proposed law provides for revisions with respect to failure to appear, the time delays for
taking a suspensive appeal, and surrender of the defendant, as well as technical corrections
to present law based on the reorganization of Title VIII of the Code of Criminal Procedure.
Effective January 1, 2017.
(Amends C.Cr.P. Art. 311-342, R.S. 15:85, R.S. 22:1441(A)(intro para) and (A)(1) through
(5), (C)(1), (C)(2)(intro para) and (C)(2)(a) through (e), and (D); adds R.S. 22:1441(C)(3)
through (5); repeals C.Cr.P. Art. 327.1, 330.1, 330.2, 330.3, 334.1, 334.2, 334.3, 334.4,
334.5, 334.6, 335.1, 335.2, 336.1, 336.2, 343, 344, 345, 346, 347, 348, 349, 349.1, 349.2,
349.3, 349.4, 349.5, 349.6, 349.7, 349.8, and 349.9)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary C to the
original bill
1. Add provisions relative to notice of rule to show cause to insurance company
or commercial surety.
2. Add provisions relative to proof of payment of bond forfeiture.
Senate Floor Amendments to engrossed bill
1. Technical amendments.
Page 58 of 58
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.