CHAPTER 2. GENERAL PROVISIONS
IC 27-10-2
Chapter 2. General Provisions
IC 27-10-2-1
Administration of article; rules; employees
Sec. 1. (a) The commissioner:
(1) shall administer this article, which regulates bail agents,recovery agents, and sureties; and
(2) may adopt rules to enforce this article.
(b) The commissioner may employ and discharge employees,examiners, counsel, and other assistants as necessary and shallprescribe their duties and their compensation.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993,SEC.5.
IC 27-10-2-2
Prima facie evidence
Sec. 2. Any written instrument purporting to be a copy of anyaction, proceeding, or finding of fact by the commissioner, or anyrecord of the commissioner authenticated under the hand of thecommissioner by the seal of the commissioner's office shall beaccepted by all the courts of this state as prima facie evidence of thecontents thereof.
As added by P.L.261-1985, SEC.1.
IC 27-10-2-3
Undertakings; validity; defect of form or other irregularity;expiration
Sec. 3. (a) An undertaking is valid if it states:
(1) the court where the defendant is to appear;
(2) the amount of the bail; and
(3) that it was made before an official legally authorized to takethe bond.
(b) A surety remains liable on an undertaking despite:
(1) any lack of the surety's qualifications as required by section4 of this chapter;
(2) any other agreement that is expressed in the undertaking;
(3) any failure of the defendant to join in the undertaking; or
(4) any other defect of form or record, or any other irregularity,except as to matters covered by subsection (a).
(c) Any undertaking written after August 31, 1985, shall expirethirty-six (36) months after it is posted for the release of a defendantfrom custody. This section does not apply to cases in which a bondhas been declared to be forfeited and the surety and bail agent havebeen notified as described in section 12 of this chapter.
As added by P.L.261-1985, SEC.1. Amended by P.L.355-1989(ss),SEC.1; P.L.105-2010, SEC.6.
IC 27-10-2-4
Qualifications of surety Sec. 4. Every surety for the release of a person on bail shall bequalified as:
(1) an insurer as defined and meeting the qualificationsprescribed in IC 27-1-5-1, and represented by a bail agent asdefined in and meeting the qualifications prescribed in thisarticle; or
(2) a person who:
(A) has reached the age of eighteen (18) years;
(B) is a citizen of the United States;
(C) has been a bona fide resident of Indiana for at least one(1) year immediately preceding the execution of the bond;
(D) is related to the person for whom release on bail issought within the third degree of affinity; and
(E) owns real or tangible personal property in Indiana witha net asset value that is acceptable to the proper authorityapproving the bond.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993,SEC.6.
IC 27-10-2-5
Surrender of defendants
Sec. 5. (a) Any time before there has been a breach of theundertaking in any type of bail and cash bond, the surety maysurrender a defendant, or the defendant may surrender, to the officialto whose custody the defendant was committed at the time bail wastaken or to the official into whose custody the defendant would havebeen given if committed.
(b) A defendant shall be surrendered without the return ofpremium for the bond if the defendant has been guilty of:
(1) changing address without notifying the defendant's bailagent or surety;
(2) concealing one's self;
(3) leaving the jurisdiction of the court without the permissionof the defendant's bail agent or surety or the court; or
(4) violating the defendant's contract with the bail agent orsurety in a way that does harm to the bail agent or the surety orviolates the defendant's obligation to the court.
As added by P.L.261-1985, SEC.1. Amended by P.L.355-1989(ss),SEC.2; P.L.224-1993, SEC.7.
IC 27-10-2-6
Surrender of defendants; detention; exoneration of sureties
Sec. 6. (a) The person desiring to make a surrender of thedefendant shall be provided a certified copy of the undertakings anda certified copy of the arrest warrant forthwith by the clerk of thecourt having jurisdiction and shall deliver them together with thedefendant to the official in whose custody the defendant was at thetime bail was taken or to the official into whose custody thedefendant would have been given if committed, who shall detain thedefendant in the official's custody thereon, as upon a commitment,
and shall acknowledge the surrender in a written certificate.
(b) The court having jurisdiction of the offense shall order that asurety be exonerated from liability for an undertaking and that anymoney or bonds deposited as bail be refunded when the personsurrendering the defendant has:
(1) presented to the court both of the documents described insubsection (a); and
(2) given to the prosecuting attorney:
(A) three (3) days notice; and
(B) copies of both of the documents described in subsection(a).
As added by P.L.261-1985, SEC.1. Amended by P.L.348-1995,SEC.2.
IC 27-10-2-7
Apprehension of defendant; time; fees
Sec. 7. For the purpose of surrendering the defendant, the suretymay apprehend the defendant before or after the forfeiture of theundertaking or may empower any law enforcement officer to makeapprehension by providing written authority endorsed on a certifiedcopy of the undertaking and paying the lawful fees therefor.
As added by P.L.261-1985, SEC.1.
IC 27-10-2-8
Notice of trial or hearing; breach of undertaking; record
Sec. 8. (a) The court shall give the bail agent or insurer legalwritten notice of the defendant's trial or hearing for purposes ofentering a plea at least seventy-two (72) hours before the defendant'sappearance is required unless the appearance is scheduled withinseventy-two (72) hours from the execution of the bond.
(b) The defendant's failure to appear constitutes a breach of theundertaking. The court before which the cause is pending shall makea record of the breach at which time section 12 of this chapter thenapplies.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993,SEC.8; P.L.105-2010, SEC.7.
IC 27-10-2-9
Property bonds; recordings; liens
Sec. 9. (a) If the undertaking is a property bond, the clerk shallrecord the same in the proper records of the county. If theundertaking describes property in another county, the clerk of thetrial court shall transmit the undertaking to the clerk of such othercounty, who shall likewise record it and return it to the firstmentioned clerk.
(b) The undertaking shall be a lien on any real property describedin it, until released in accordance with IC 35-33-8.5.
As added by P.L.261-1985, SEC.1. Amended by P.L.5-1988,SEC.150.
IC 27-10-2-10
Recognizances; affidavits; forms
Sec. 10. (a) Recognizances for the appearance of prisoners shallin all cases and in all courts be in writing, be taken with at least one(1) resident freehold surety or be secured by a surety company, andbe substantially in the following form:
STATE OF INDIANA )
) SS:
COUNTY OF _________________ )
State of Indiana.
vs.
John Doe
We, A B and C D, jointly and severally acknowledge ourselvesbound to the state of Indiana in ______ dollars. If A B (the prisoner)shall appear on the ____ day of ________, 20___, in the___________ court, to answer a charge of (here state the offense)and from day to day and from term to term thereof, and abide theorder of the court until the cause is determined and not departtherefrom without leave, then this recognizance shall be void, else toremain in full force.
If the above named defendant does not appear at any time fixed inthis bond, the court shall order CD (the surety) to produce thedefendant. The court shall mail notice of this order to CD, the suretyat __________ and __________ in __________ county and state ofIndiana. If the surety does not produce the defendant, and does notpay all costs and late surrender fees in compliance withIC 27-10-2-12, the court shall, three hundred sixty-five (365) daysafter the mailing of the above notice to the surety, declare the bondforfeited, enter judgment forthwith against the surety, and certify thejudgment to the clerk for record. Such forfeiture shall be withoutpleadings and without change of judge or change of venue. Theobligors on such bond may appeal to the ruling of the court andappeal to the court of appeals as in other civil cases, and on appealthe evidence may be reviewed. Execution shall issue forthwith to thesheriff against the properties of each of us to be levied as otherexecutions are levied.
Witness our hand and seals this ___ day of _________, 20___.
A B __________ (SEAL)
C D __________ (SEAL)
taken and approved this ___ day of _________, 20___.
_____________________________
(Officer taking surety)
Affidavits shall be taken from each personal suretysubstantially as follows:
State of Indiana )
County of ______________)
I, C D, being duly sworn, on oath say, that I am worth in my personalrights and name, over and above all debts and liabilities of any andevery kind, not less than _______ dollars, and that I possess realestate in my own name, located in the above-named county, which is
worth over and above all encumbrances and liens, more than ______dollars; that I am surety on the following recognizance bonds andnone other, aggregating the total amount of ________ to-wit: (Herename bonds and amounts, if any) ________, And that I am not suretyon any recognizance bond of any kind in any court which bond hasbeen forfeited which judgment remains unpaid.
C D _______________ (SEAL)
Subscribed and sworn to before me, this ___ day of__________, 20___.
_________________________________
(Officer administering oath)
(b) Printed forms of the above bonds shall be kept by all clerks ofcourt that are authorized by law to admit prisoners to bail and shallbe supplied by the clerks to sheriffs.
(c) For the purposes of this article, a cause is determined when a:
(1) judgment of conviction or acquittal is entered for amisdemeanor;
(2) judgment is withheld in a misdemeanor case;
(3) judgment of acquittal is entered in a felony case;
(4) sentence is imposed in a felony case; or
(5) defendant has been ordered or admitted to a diversionprogram.
As added by P.L.261-1985, SEC.1. Amended by P.L.355-1989(ss),SEC.3; P.L.2-2005, SEC.73.
IC 27-10-2-11
Transcript of proceedings; docketing; liens
Sec. 11. Such recognizance, together with a transcript of theproceedings and all papers in the case, shall be filed forthwith withthe clerk of the proper court, who shall docket the cause and recordsuch recognizance forthwith and enter it on the judgment docket, allas provided in IC 35-33-8.5. From the date of the entries in therecords of the respective counties as provided in IC 35-33-8.5, itshall be a lien upon all lands in the counties where recorded ownedby any of the obligors, and any judgment afterward had upon it shallrelate back to the date of entry in such county, or counties, where anysuch lands are situated.
As added by P.L.261-1985, SEC.1. Amended by P.L.5-1988,SEC.151.
IC 27-10-2-12
Failure of defendant to appear; notice; late surrender fees;forfeiture proceedings; satisfaction of judgment; revocation oflicense
Sec. 12. (a) Only if a defendant does not appear as provided in thebond:
(1) the court shall:
(A) issue a warrant for the defendant's arrest; and
(B) order the bail agent and the surety to surrender thedefendant to the court immediately; (2) the clerk shall, less than thirty (30) days after the defendant'sfailure to appear, mail notice of the order to both:
(A) the bail agent; and
(B) the surety;
at each of the addresses indicated in the bonds; and
(3) if the defendant later is arrested or otherwise appears:
(A) the court shall order that the surety be released from thebond; and
(B) after the court issues an order under clause (A), the surety'soriginal undertaking shall be reinstated if the surety files awritten request for the reinstatement of the undertaking withthe court.
This subsection may not be construed to prevent a court fromrevoking or resetting bail.
(b) The bail agent or surety must:
(1) produce the defendant; or
(2) prove within three hundred sixty-five (365) days:
(A) that the appearance of the defendant was prevented:
(i) by the defendant's illness or death;
(ii) because the defendant was at the scheduled time ofappearance or currently is in the custody of the UnitedStates, a state, or a political subdivision of the United Statesor a state;
(iii) because the required notice was not given; or
(iv) because authorities have refused to extradite thedefendant, by a preponderance of the evidence; and
(B) the defendant's absence was not with the consent orconnivance of the sureties.
(c) If the bail agent or surety does not comply with the terms ofsubsection (b) within one hundred twenty (120) days after themailing of the notice required under subsection (a)(2), a latesurrender fee shall be assessed against the bail agent or surety asfollows:
(1) If compliance occurs more than one hundred twenty (120)days but not more than one hundred eighty (180) days after themailing of notice, the late surrender fee is twenty percent (20%)of the face value of the bond.
(2) If compliance occurs more than one hundred eighty (180)days but not more than two hundred ten (210) days after themailing of notice, the late surrender fee is thirty percent (30%)of the face value of the bond.
(3) If compliance occurs more than two hundred ten (210) daysbut not more than two hundred forty (240) days after the mailingof notice, the late surrender fee is fifty percent (50%) of the facevalue of the bond.
(4) If compliance occurs more than two hundred forty (240) daysbut not more than three hundred sixty-five (365) days after themailing of notice, the late surrender fee is eighty percent (80%)of the face value of the bond.
(5) If the bail agent or surety does not comply with the terms of
subsection (b) within three hundred sixty-five (365) days of themailing of notice required under subsection (a)(2), the latesurrender fee is eighty percent (80%) of the face value of thebond.
All late surrender fees are due as of the date of compliance withsubsection (b) or three hundred sixty-five (365) days after themailing of notice required under subsection (a)(2), whichever isearlier, and shall be paid by the surety when due. If the surety failsto pay, then the late surrender fees shall be paid by the commissioneras provided in subsection (f).
(d) If the bail agent or surety does not comply with the terms ofsubsection (b) within three hundred sixty-five (365) days of themailing of notice required by subsection (a)(2), the court shalldeclare forfeited an amount equal to twenty percent (20%) of theface value of the bond. The court shall immediately enter judgmenton the forfeiture, without pleadings and without change of judge orchange of venue, and assess against the bail agent or surety all actualcosts resulting from the defendant's failure to appear. These costsinclude jury fees, witness fees, and any other documented costsincurred by the court.
(e) Proceedings relative to the bond, forfeiture of a bond, judgmenton the forfeiture, execution of judgment, or stay of proceedings shallbe in the court in which the bond was posted. Costs and latesurrender fee assessed against a bail agent or surety under subsection(c) shall be satisfied without further order of the court as provided insubsection (f). The court may waive the late surrender fee or extendthe period for payment beyond the statutorily permitted period, orboth, if the following conditions are met:
(1) A written request is filed with the court and the prosecutor.
(2) The surety or bail agent provides evidence satisfactory to thecourt that diligent efforts were made to locate the defendant.
(f) In the case of an insurer, if the fees, costs, or judgment is notpaid, then the clerk shall mail the notice to the commissioner. Thecommissioner shall:
(1) within ten (10) days of receipt of the notice forward a copyby certified mail to the insurer;
(2) forty-five (45) days after receipt of the notice from the clerk,if the commissioner has not been notified by the clerk that thefees or judgment or both have been paid, pay the late surrenderfee assessment, costs, and any judgment of forfeiture ordered bythe court from funds the insurer has on deposit with thedepartment of insurance;
(3) upon paying the assessment, costs, and judgment, if any,from funds on deposit, immediately revoke the license of theinsurer, if the satisfaction causes the deposit remaining to be lessthan the amount required by this article; and
(4) within ten (10) days after revoking a license, notify theinsurer and the insurer's agents and the clerk of each county inIndiana of the revocation and the insurer shall be prohibited fromconducting a bail bond business in Indiana until the deposit has
been replenished.
(g) The notice mailed by the clerk to the commissioner pursuant tothe terms of subsection (f) shall include:
(1) the date on which the defendant originally failed to appear asprovided in the bond;
(2) the date of compliance with subsection (b), if compliancewas achieved within three hundred sixty-five (365) days after themailing of the notice required by subsection (a)(2);
(3) the amount of the bond;
(4) the dollar amount of the late surrender fee due;
(5) the amount of costs resulting from the defendant's failure toappear; and
(6) if applicable, the dollar amount of the judgment of forfeitureentered by the court.
(h) Any surety on a bond may appeal to the court of appeals as inother civil cases without moving for a new trial, and on the appealthe evidence, if any, shall be reviewed.
(i) Fifty percent (50%) of the late surrender fees collected underthis chapter shall be deposited in the police pension trust fundestablished under IC 36-8-10-12 and the remaining fifty percent(50%) shall be deposited in the county extradition fund establishedunder IC 35-33-14.
As added by P.L.261-1985, SEC.1. Amended by P.L.355-1989(ss),SEC.4; P.L.224-1993, SEC.9; P.L.348-1995, SEC.3; P.L.105-2010,SEC.8.
IC 27-10-2-13
Liability of bail agent or surety
Sec. 13. All liability of the bail agent or surety may be enforced onmotion without necessity of an independent action if conformancewith sections 1 through 12 of this chapter is shown.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993,SEC.10.
IC 27-10-2-14
Collateral securities; receipts; records
Sec. 14. (a) When a bail agent or insurer accepts collateral, the bailagent or insurer shall give a written receipt for the collateral. Thereceipt shall give in detail a full description of the collateral receivedand the terms of redemption. The collateral shall be considered tohave been taken in a fiduciary capacity. The bail agent or insurershall keep copies of all receipts at the bail agent's or insurer's placeof business to be available to the commissioner for thecommissioner's review.
(b) A bail agent or an insurer shall maintain in the bail agent's orinsurer's office records of bail bonds executed or countersigned bythe bail agent or insurer for at least one (1) year after the liability ofthe surety has been terminated. Salient details of the bonds shall bea part of the records required by this subsection.
(c) Before August 16 of each year, a bail agent or a firm or an
agency a bail agent is employed by, associated with, or a member ofshall file with the commissioner a sworn statement on a formfurnished by the commissioner. The statement must include:
(1) a list of every outstanding or unpaid late surrender fee andjudgment;
(2) the name of the court in which each outstanding or unpaidlate surrender fee and judgment is recorded; and
(3) all other information determined by the commissioner to bepertinent.
(d) The commissioner may:
(1) deny;
(2) suspend;
(3) revoke; or
(4) refuse to renew;
a license issued under this article for failure of the licensee to complywith subsection (c).
(e) The commissioner may impose a civil penalty of not more thanten thousand dollars ($10,000) against:
(1) an insurer;
(2) a bail agent; or
(3) a firm or an agency;
for failure to comply with subsection (c).
(f) A civil penalty imposed under subsection (e) may be enforcedin the same manner as a civil judgment.
As added by P.L.261-1985, SEC.1. Amended by P.L.355-1989(ss),SEC.5; P.L.224-1993, SEC.11.
IC 27-10-2-15
Bail instead of money or bonds; refund
Sec. 15. If money or bonds have been deposited, bail by suretiesmay be substituted therefor at any time before a breach of theundertaking, and the official taking the new bail shall make an orderthat the money or bonds be refunded to the person depositing thesame and they shall be refunded accordingly and the originalundertakings shall be cancelled.
As added by P.L.261-1985, SEC.1.
IC 27-10-2-16
Deposits instead of bond
Sec. 16. (a) When the defendant has been admitted to bail, thedefendant, or another in the defendant's behalf, may deposit with anofficial authorized to take bail, a sum of money, or nonregisteredbonds of the United States, of the state, or of any county, city, ortown within the state, equal in market value to the amount of suchbail, together with the defendant's personal undertaking, and anundertaking of such other person, if the money or bonds aredeposited by another. Upon delivery to the official in whose custodythe defendant is of a certificate of such deposit, the defendant shallbe discharged from custody in the cause.
(b) When bail other than a deposit of money or bonds has been
given, the defendant or the surety may, at any time before a breachof the undertaking, deposit the sum mentioned in the undertaking,and upon such deposit being made, accompanied by a newundertaking, the original undertaking shall be cancelled.
As added by P.L.261-1985, SEC.1.