Senate Bill No. 474
(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler,
Schoonover, Snyder, White and Kimble)
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[Originating in the Committee on the Judiciary;
reported February 11, 1998.]
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A BILL to amend and reenact chapter thirty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new article, designated article thirty-three,
relating to bail-bond enforcement; and licensure and
regulation of bond-enforcement agents.
Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article thirty-three, to read as follows:
ARTICLE 33. LICENSURE AND REGULATION OF BAIL-ENFORCEMENT AGENTS.
§30-33-1. Definitions.
For the purposes of this article, except where the context
clearly requires otherwise, the following terms shall have the
meanings ascribed to them:
(1) "Applicant" means a person who files a completed
application with the office of the secretary of state as required in sections two and three of this article for licensure to act as
a bail enforcement agent in the state of West Virginia;
(2) "Bail enforcement" means engaging in the apprehension and
return of a suspect who is released on bail and who has failed to
appear at any stage of a criminal proceeding;
(3) "Bail-enforcement agent" means any person who, on behalf
of a bail bond holder or surety agent, engages in the apprehension
and return of persons who are released on bail and who have failed
to appear at any stage of the proceeding as directed by a court
with jurisdiction over the person or who are released on bail and
have had their bail revoked;
(4) "Licensed bail-enforcement agent" means any person who is
licensed as a bail-enforcement agent by the secretary of state; (5) "Person" means a natural person; and
(6) "Secretary" shall mean the secretary of state.
§ 30-33-2. Eligibility requirements for persons seeking licensure
as a bail-enforcement agent; exceptions.
(a) In order to be eligible to be licensed as a bail-
enforcement agent, an applicant shall:
(1) Be at least eighteen years of age;
(2) Have maintained a residence in this state for more than
one year immediately preceding the date of application;
(3) Not have been convicted in any jurisdiction of any felony,
crime involving moral turpitude, or illegal use or possession of a dangerous weapon for any of which a full pardon or similar relief
has not been granted under the laws of the United States, the state
of West Virginia, or any state or country;
(4) Not have been declared by any court of competent
jurisdiction incompetent by reason of mental defect or disease
which has not been restored;
(5) Not suffer from habitual drunkenness or from controlled
substance addiction or dependence;
(6) Have a minimum of one year of education or training in any
one of the following areas, or some combination thereof:
(A) Coursework or training that is relevant to the criminal
justice system at an accredited college or university;
(B) Employment as a member of any United States government
investigative agency, employment as a member of a state or local
law-enforcement agency, or service as a sheriff;
(C) Employment in the field of bail-bond enforcement for a
period of at least one year; or
(D) Any other substantially equivalent training or experience.
(7) Present satisfactory evidence that such applicant has, if
he or she carries a firearm in the performance of his or her duties
as a bail-enforcement agent, completed a training course in firing
and handling a handgun. The successful completion of any of the
following courses fulfills this training requirement:
(A) Any national rifle association handgun safety course;
(B) Any handgun safety or training course or class available
to the general public offered by an official law-enforcement
organization, community college, junior college, college, or
private or public institution or organization or handgun training
school utilizing instructors duly certified by such institution;
(C) Any handgun training or safety course or class conducted
by a handgun instructor certified as such by the state or by the
national rifle association; or
(D) Any handgun training or safety course or class conducted
by any branch of the United States military, reserve, or national
guard.
(b) The provisions of this article for obtaining licensure as
a bail-enforcement agent shall not apply to any person who has been
approved by a circuit court of this state to act as a bail bondsman
for at least two years prior to the effective date of this article. (c) No person convicted of a crime involving domestic violence
may be licensed as a bail-enforcement agent.
§30-33-3. Application requirements for a license to act as a
licensed bail-enforcement agent.
(a) To be licensed as a bail-enforcement agent, each applicant
shall complete and file a written application, under oath, with the
secretary of state and in such form as the secretary may prescribe.
(b) On the application each applicant shall provide the
following information: The applicant's name, birth date, citizenship, physical description, military service, criminal
history, current residence, residences for the preceding ten years,
and any other information requested by the secretary of state in
order to comply with the requirements of this article.
(c) The applicant shall provide:
(1) Information in the application about whether the applicant
has ever been arrested for or convicted of any crime or wrongs,
either done or threatened, against the government of the United
States;
(2) Information about offenses against the laws of West
Virginia or any state; and
(3) Any facts as may be required by the secretary to determine
the good character, competency and integrity of the applicant.
(d) As part of the application, each applicant shall give the
secretary of state permission to review the records held by the
West Virginia state police for any convictions that may be on
record for such applicant.
(e) For each applicant for a license, the application shall be
accompanied by two recent full-face photographs and one complete
set of the person's fingerprints which shall be certified by a law- enforcement officer of this state.
(f) For each applicant, the application shall be accompanied
by:
(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at
least five years preceding the application. No reference may be
connected to the applicant by blood or marriage. All references
must have been written for the purpose of the application for a
license to conduct the bail-enforcement business; and
(2) A nonrefundable application processing service charge of
fifty dollars, which shall be payable to the secretary of state to
offset the cost of license review and criminal investigation
background report from the West Virginia state police, along with
a license fee of one hundred dollars. The license fee shall be
deposited to the general revenue fund, and shall be refunded only
if the license is denied. This license shall be renewable on a
yearly basis.
(g) All applicants for bail-enforcement agent licenses shall
file in the office of secretary of state a surety bond. Such bond
shall:
(1) Be in the sum of fifty thousand dollars and conditioned
upon the faithful and honest conduct of such business by such
applicant;
(2) Be written by a company recognized and approved by the
insurance commissioner of West Virginia and approved by the
attorney general of West Virginia with respect to its form; and
(3) Be in favor of the state of West Virginia for any person
who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.
(h) Any person claiming against the bond required by
subsection (g) of this section for a violation of this article may
maintain an action at law against any licensed bail-enforcement
agent and against the surety. The surety shall be liable only for
damages awarded under section nine of this article and not the
punitive damages permitted under that section. The aggregate
liability of the surety to all persons damaged by a person under
this article may not exceed the amount of the bond.
§30-33-4. Temporary license for interstate bail enforcement.
(a) Persons from states other than West Virginia seeking to
act as bail-enforcement agents within the state may do so provided
that the applicant for the temporary license has a background
substantially similar to that which is required to become licensed
in the state of West Virginia and is approved by the secretary of
state. Applicants for temporary licensure shall be subject to the
same application process, fees, and surety bond promulgated by
section three of this article. Applicants for temporary licenses
must post a standing surety bond in the sum of fifty thousand
dollars with the secretary of state which is subject to the same
rules and regulations as the surety bond required by subsection
(g), section three of this article.
(b) Before engaging in the apprehension and return of a
suspect who is released on bail and who has failed to appear at any stage of the proceedings to answer the charge before the court in
which he may be prosecuted, a bail-enforcement agent holding a
temporary license shall notify the sheriff of the county in which
they will be apprehending said suspect of the date, time, and place
of intended apprehension in advance of such intended apprehension.
Bail-enforcement agents possessing temporary licenses shall notify
the sheriff of the county in which an apprehension occurs within
eight hours after the apprehension takes place.
(c) A license granted under the provisions of this section
shall be in effect for thirty days from the date the certificate of
license is issued and may be renewed for a period of thirty days by
the secretary of state upon application, in such form as the
secretary may prescribe, and upon payment of the fee and the filing
of the surety bond. At the time of applying for renewal of a
license, the secretary of state may require any person to provide
additional information to reflect any changes in the original
application or any previous renewal.
§30-33-5. Prohibitions.
(a) No person shall engage in the bail-enforcement business
without having first obtained from the secretary of state a license
to conduct such business.
(b) All licensed persons are prohibited from transferring
their licenses to an unlicensed person. This prohibition includes
contracting or subcontracting with an unlicensed person to conduct the bail-enforcement business.
(c) It is unlawful for any person subject to the provisions of
this article to knowingly commit any of the following:
(1) Employ any individual to perform the duties of a bail- enforcement agent who has not first complied with all provisions of
this article and the rules promulgated by the secretary;
(2) Falsely represent that a person is the holder of a valid
license;
(3) Make a false report with respect to any matter with which
he or she is employed; or
(4) Authorize or permit another person to violate any
provision of this article or any rule of the secretary of state
adopted for this article.
(d) A firm, a partnership, an association, a limited liability
company, or a corporation may not be licensed as a bail-enforcement
agent.
§30-33-6. Authority of secretary of state.
(a) When the secretary of state shall be satisfied as to the
good character, competency and integrity of an applicant, he shall
issue and deliver to such applicant a certificate of license. Each
license issued shall be for a period of one year and shall be
revocable at all times for cause shown pursuant to subsection (b)
of this section or any rules promulgated pursuant thereto.
(b) The secretary of state shall have the authority to propose for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code such legislative rules as may be
necessary for the administration and enforcement of this article
and for the issuance, suspension and revocation of licenses issued
under the provisions of this article. The secretary of state shall
afford any applicant an opportunity to be heard in person or by
counsel when a determination is made to deny, revoke or suspend any
such applicant's license or application for license, including a
renewal of a license. Such applicant shall have fifteen days from
the date of receiving written notice of the secretary's adverse
determination to request a hearing on the matter of denial,
suspension or revocation: Provided, That the secretary may,
forthwith, suspend a licensee's license upon a finding that a
licensee has acted in his or her capacity as a bail-enforcement
agent in violation of the criminal laws of this state or in a
manner which endangers public health or safety. The action of the
secretary of state in granting, renewing, or in refusing to grant
or to renew, a license, shall be subject to review by the circuit
court of Kanawha County or other court of competent jurisdiction.
(c) At any hearing before the secretary of state to challenge
an adverse determination by the secretary of state on the matter of
a denial, suspension or revocation of a license, if the adverse
determination is based upon a conviction for a crime which would
bar licensure under the provisions of this article, the hearing shall be an identity hearing only, and the sole issue which may be
contested is whether the person whose application is denied or
whose license is suspended or revoked is the same person convicted
of the crime.
§30-33-7. Renewal of license.
A license granted under the provisions of this article shall
be in effect for one year from the date the certificate of license
is issued and may be renewed for a period of one year by the
secretary of state upon application, in such form as the secretary
may prescribe, and upon payment of the fee and the filing of the
surety bond. At the time of applying for renewal of a license, the
secretary of state may require any person to provide additional
information to reflect any changes in the original application or
any previous renewal.
§30-33-8. Penalties.
(a) Any person, licensed or unlicensed, who shall violate any
of the provisions of this article is guilty of a misdemeanor and,
upon conviction, shall be fined not less than five hundred dollars
nor more than five thousand dollars or be confined in jail for not
more than one year, or both.
(b) In the case of a violation of subsection (a), section five
of this article, a fine shall be assessed for each day that an
individual conducted the bail-enforcement business.
§30-33-9. Action for damages.
Any individual who is injured by a violation of this article
may bring an action for recovery of damages, including punitive
damages plus reasonable attorney's fees and court costs.
§30-33-10. Disposition of fees.
All fees collected hereunder by the secretary of state shall
be paid to the state treasurer and deposited in the general revenue
fund, except the fifty dollar application fee, which shall be
deposited with the office of the secretary of state.
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(NOTE: The purpose of this bill is to establish licensure and
regulation of bail-enforcement agents.
Article 33 is new; therefore, strike throughs and underscoring
have been omitted.)