HOUSE BILL 715
47th legislature - STATE OF NEW MEXICO - second session, 2006
INTRODUCED BY
Hector H. Balderas
AN ACT
RELATING TO BAIL BONDSMEN; PROVIDING FOR NEW REQUIREMENTS FOR QUALIFICATIONS AND LICENSING OF BAIL BONDSMEN AND SOLICITORS; ESTABLISHING ADDITIONAL EDUCATIONAL REQUIREMENTS AND PROHIBITED PRACTICES FOR BAIL BONDSMEN AND SOLICITORS; REQUIRING A NATIONAL AND STATE CRIMINAL BACKGROUND CHECK FOR BAIL BONDSMEN AND SOLICITORS; REQUIRING GENERAL LIABILITY INSURANCE FOR BAIL BONDSMEN AND SOLICITORS; CREATING THE BAIL BONDSMEN AND SOLICITORS ADVISORY COMMITTEE; INCREASING ADMINISTRATIVE FINES; PROVIDING CRIMINAL PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 59A-51-2 NMSA 1978 (being Laws 1984, Chapter 127, Section 929) is amended to read:
"59A-51-2. DEFINITIONS.--As used in [this article] the Bail Bondsmen Licensing Law:
A. "bail bondsman" means a limited surety agent or a property bondsman as hereafter defined;
B. "committee" means the bail bondsmen and solicitors advisory committee;
[B.] C. "insurer" means any surety insurer [which] that is authorized to transact surety business in this state;
[C.] D. "limited surety agent" means any individual appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings and receives or is promised money or other things of value therefor;
[D.] E. "property bondsman" means any person who pledges United States currency, United States postal money orders or cashier's checks or other property as security or surety for a bail bond in connection with a judicial proceeding and receives or is promised therefor money or other things of value; and
[E.] F. "solicitor" means a person who has contracted with or is employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, or to assist in the apprehension and surrender of defendant to the court or keeping the defendant under necessary surveillance, and to solicit bail bond business, to sign property bonds and assist in other conduct of the business all as authorized by the employer bail bondsman. This does not affect the right of a bail bondsman to hire counsel or to ask assistance of law enforcement officers."
Section 2. Section 59A-51-4 NMSA 1978 (being Laws 1984, Chapter 127, Section 931, as amended) is amended to read:
"59A-51-4. QUALIFICATIONS FOR LICENSE.--Applicants for license as bail bondsman or solicitor pursuant to the provisions of the Bail Bondsmen Licensing Law shall be qualified as follows:
A. be an individual not less than [eighteen] twenty-one years of age;
B. be a citizen of the United States;
C. not have been convicted of a felony, with the exception of a conditional discharge of a felony conviction, or anyone properly licensed as of January 1, 2005;
D. not be a law enforcement, adjudication, jail, court or prosecution official or an employee thereof or an attorney, official authorized to admit to bail, or state or county officer;
E. if for license as bondsman, pass a written examination testing the applicant's knowledge and competence to engage in the bail bondsman business;
F. be of good personal and business reputation and have not been found to have violated professional ethical standards;
G. if to act as a property bondsman, be financially responsible and provide the surety bond or deposit in lieu thereof as required in accordance with Section 59A-51-8 NMSA 1978;
H. if to act as a limited surety agent, be appointed by an authorized surety insurer; and
I. if for license as a solicitor, have been so appointed by a licensed bail bondsman subject to issuance of the solicitor license."
Section 3. Section 59A-51-4.1 NMSA 1978 (being Laws 1999, Chapter 296, Section 1) is amended to read:
"59A-51-4.1. EDUCATIONAL REQUIREMENTS.--
A. In order to be eligible to take the examination required to be licensed as a bail bondsman, the applicant shall complete not less than thirty clock hours of formal classroom education in subjects pertinent to the duties and responsibilities of a bail bondsman, including ethics and all laws and rules related to the bail bond business. In addition, the applicant shall complete one hundred twenty hours of on-the-job training under the direct supervision of a sponsoring bail bondsman who shall certify in writing that [he] the sponsoring bail bondsman has taught the applicant the subjects pertinent to the duties and responsibilities of a bail bondsman, including ethics and all laws and rules related to the bail bond business, and that the applicant is prepared to take the examination. The scope of the examination shall be as broad as the bail bond business.
B. Instead of the education requirement in Subsection A of this section, an applicant may become eligible to take the examination required to be licensed as a bail bondsman by apprenticing for a minimum of six months with a sponsoring bail bondsman. The sponsoring bail bondsman shall certify in writing that [he] the sponsoring bail bondsman has taught the applicant the subjects pertinent to the duties and responsibilities of a bail bondsman, including ethics and all laws and rules related to the bail bond business, and that the applicant is prepared to take the examination. The scope of the examination shall be as broad as the bail bond business.
C. In order to be eligible to take the examination required to be licensed as a solicitor, [each person] the applicant shall complete not less than [ten] thirty clock hours of formal classroom education in subjects pertinent to the duties and responsibilities of a solicitor, including ethics and all laws and rules related to the bail bond business. In addition, the applicant for a solicitor's license shall complete [thirty] one hundred twenty hours of on-the-job training under the direct supervision of a sponsoring bail bondsman who shall certify in writing that [he] the sponsoring bail bondsman has taught the applicant the subjects pertinent to the duties and responsibilities of a solicitor, including ethics and all laws and rules related to the bail bond business, and that the applicant is prepared to take the examination. The scope of the examination shall be as broad as the bail bond business.
D. Prior to renewal of a bail bondsman's or solicitor's license, a licensee shall complete annually not less than [fifteen] twenty clock hours of continuing education in subjects pertinent to the duties and responsibilities of a bail bondsman or solicitor, including ethics and all laws and rules related to the bail bond business. Such continuing education shall not include a written or oral examination.
E. A provider approved by the superintendent to offer prelicensing classroom education for bail bondsmen or continuing education classes for bail bondsmen and solicitors shall be required to offer such classes in at least two geographic areas of the state until such time as the superintendent determines that sufficient classes are available statewide.
F. It is a violation of the [New Mexico] Insurance Code for a person to falsely represent to the superintendent that the education requirements of this section have been complied with.
G. The superintendent shall adopt and promulgate such rules as are necessary for the effective administration of this section."
Section 4. Section 59A-51-5 NMSA 1978 (being Laws 1984, Chapter 127, Section 932, as amended by Laws 1999, Chapter 272, Section 26 and also by Laws 1999, Chapter 289, Section 39) is amended to read:
"59A-51-5. APPLICATION FOR LICENSE.--
A. An individual desiring to be licensed as bail bondsman or solicitor under [Chapter 59A, Article 51 NMSA 1978] the Bail Bondsmen Licensing Law shall file with the superintendent written application on a form as prescribed and furnished by the superintendent, together with application for qualifying examination if for bail bondsman license.
B. With application for license to act as property bondsman the applicant shall file with the superintendent [his] the applicant's detailed financial statement under oath and a schedule of charges and the rating plan proposed to be used in writing bail bonds. The schedule shall conform to rules and regulations promulgated by the superintendent.
C. Application for a solicitor's license must be endorsed by the appointing bail bondsman, who shall therein [obligate himself] be obligated to supervise the solicitor's activities [in] on the bondsman's behalf.
D. The application shall be accompanied by:
(1) a recent credential-sized full-face photograph of the applicant [together with such];
(2) two full sets of fingerprints;
(3) a certified copy of a birth certificate or proof of United States citizenship, if the applicant was not born in the United States; and
(4) any other additional proof of identity as the superintendent may reasonably require.
E. Upon receipt of the items listed in Subsection D of this section, the superintendent shall conduct an appropriate check of available records and shall forward the necessary information to the federal bureau of investigation to conduct a national criminal history background check and to the department of public safety to conduct a state criminal history background check. The applicant shall pay the cost of obtaining the criminal history background check from the federal bureau of investigation and the department of public safety.
[E.] F. As part of an application for a license, a nonresident applicant shall appoint the superintendent, on a form prescribed and furnished by the superintendent, as agent on whom may be served all legal process issued by a court in this state in any action involving the nonresident licensee. The appointment is irrevocable and continues for so long as an action involving the nonresident licensee could arise. Duplicate copies of process shall be served upon the superintendent or other person in apparent charge of the insurance division during the superintendent's absence, accompanied by payment of the process service fee specified in Section 59A-6-1 NMSA 1978. Upon service the superintendent shall promptly forward a copy by certified mail, return receipt requested, to the nonresident licensee at [his] the nonresident licensee's last address of record with the superintendent. Process served and copy forward as so provided constitutes personal service upon the nonresident licensee.
[F.] G. A nonresident licensee shall also file with the superintendent a written agreement to appear before the superintendent pursuant to a notice of hearing, show cause order or subpoena issued by the superintendent and deposited, postage paid, by certified mail in a letter depository of the United States post office, addressed to the nonresident licensee at [his] the nonresident licensee's last address of record with the superintendent, and that upon failure of the nonresident licensee to appear, the nonresident licensee consents to subsequent suspension, revocation or refusal of the superintendent to continue the license."
Section 5. A new section of the Bail Bondsmen Licensing Law is enacted to read:
"[NEW MATERIAL] BOND AND GENERAL LIABILITY INSURANCE REQUIRED--BAIL BONDSMEN AND SOLICITORS.--
A. A bail bondsman or solicitor license shall not be issued pursuant to the Bail Bondsmen Licensing Law unless the applicant files with the superintendent a commercial general liability certificate of insurance.
B. A bail bondsman or solicitor licensed pursuant to the Bail Bondsmen Licensing Law shall maintain the general liability certificate of insurance, and, upon failure to do so, the license of the bail bondsman or solicitor shall be suspended and shall not be reinstated until an application in the form prescribed by the superintendent is filed together with an acceptable general liability certificate of insurance. The superintendent may deny the application, notwithstanding the applicant's compliance with this section:
(1) for any reason that would justify a refusal to issue or a suspension or a revocation of a license; or
(2) for the performance by the applicant of any practice while under suspension for failure to keep the general liability certificate of insurance in force for which a license pursuant to the Bail Bondsmen Licensing Law is required.
C. A general liability certificate of insurance executed and filed with the superintendent shall remain in force until the company issuing the general liability certificate of insurance has terminated future indemnity by notice to the superintendent."
Section 6. Section 59A-51-9 NMSA 1978 (being Laws 1984, Chapter 127, Section 936) is amended to read:
"59A-51-9. ISSUANCE, REFUSAL OF LICENSE.--The superintendent shall act upon application for license under [this article] the Bail Bondsmen Licensing Law within a
reasonable period after the application has been filed with [him] the superintendent and the results of a national and state criminal background check have been received. If the superintendent finds that the application is complete, that the applicant has taken and passed any required examination, has paid all applicable fees and is otherwise qualified for the license, [he] the superintendent shall issue to the applicant in appropriate form the license applied for. Otherwise, the superintendent shall refuse to issue the license and shall promptly notify the applicant thereof in writing stating the grounds for the refusal."
Section 7. A new section of the Bail Bondsmen Licensing Law is enacted to read:
"[NEW MATERIAL] BAIL BONDSMEN AND SOLICITORS ADVISORY COMMITTEE--CREATION AND ORGANIZATION.--
A. The "bail bondsmen and solicitors advisory committee" is created. The committee consists of the following seven members appointed by the governor:
(1) two licensed limited surety agents;
(2) two licensed property bondsmen;
(3) two licensed solicitors; and
(4) one member of the public; provided that the public member or the member's spouse shall not have been licensed pursuant to the Bail Bondsmen Licensing Law, or have a financial interest, direct or indirect, in a bail bondsmen company or a related business.
B. The committee shall select a chairperson, a vice chairperson and other officers as it deems necessary.
C. The committee shall meet at the call of the chairperson but not less than four times annually. A majority of members constitutes a quorum for the transaction of business. The affirmative vote of at least a majority of the quorum present shall be necessary for an action to be taken by the committee.
D. Members shall serve five-year terms; provided that at the time of initial appointment, the governor shall appoint two members to abbreviated terms to allow for staggering of terms of subsequent appointees. A vacancy shall be filled by appointment by the governor for the remainder of the unexpired term.
E. Members of the committee shall receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance."
Section 8. A new section of the Bail Bondsmen Licensing Law is enacted to read:
"[NEW MATERIAL] COMMITTEE--DUTIES.--The committee shall furnish advice, gather information and make recommendations to the superintendent on the following:
A. licensing bail bondsmen and solicitors;
B. minimum training and educational standards for licensing;
C. continuing education requirements;
D. conducting criminal history background checks; and
E. any other matters related to the qualification and licensure of bail bondsmen and solicitors pursuant to the Bail Bondsmen Licensing Law."
Section 9. Section 59A-51-13 NMSA 1978 (being Laws 1984, Chapter 127, Section 940, as amended) is amended to read:
"59A-51-13. PRACTICES.--
A. A bail bondsman or solicitor shall not:
(1) suggest or advise the employment of or name for employment any particular attorney to represent [his] the bail bondsman's or solicitor's principal;
(2) pay a fee or rebate or give or promise anything of value to a jailer, policeman, peace officer, committing magistrate or any other person who has power to arrest or to hold in custody or to any public official or public employee in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or estreatment thereof or to secure delay or other advantage;
(3) pay a fee or rebate or give anything of value to an attorney in bail bond matters, except in defense of any action on a bond;
(4) pay a fee or rebate or give or promise anything of value to the principal or anyone [in his] on the bail bondsman's or solicitor's behalf;
(5) participate in the capacity of an attorney at a trial or hearing of one on whose bond [he] the bail bondsman or solicitor is surety;
(6) except for the premium received for the bond, fail to return any collateral security within a reasonable time after the termination of liability on the bond; [or]
(7) charge or accept anything of value except the premium on the bond and any extraterritorial recovery expenses, but the bondsman may accept collateral security or other indemnity if:
(a) such collateral security or other indemnity is reasonable in relation to the amount of the bond;
(b) no collateral or security in tangible property is taken by pledge or debt instrument that allows retention, sale or other disposition of such property upon default of premium payment;
(c) no collateral or security interest in real property is taken by deed or any other instrument unless the bail bondsman's interest in the property is limited to one hundred percent of the amount of the bond;
(d) the collateral or security taken by the bondsman is not pledged directly to any court as security for an appearance bond; and
(e) the person from whom the collateral or security is taken is given a receipt describing the condition of the collateral or security at the time it is taken into the custody of the bondsman;
(8) attempt to take a defendant into custody without first providing notification to the local law enforcement agency of the jurisdiction where the defendant is believed to be located;
(9) forcibly enter any vehicle, watercraft, dwelling or other structure, movable or immovable, without first providing notification to the local law enforcement agency of the jurisdiction where the vehicle, watercraft, dwelling or other structure is located;
(10) enter an occupied vehicle, watercraft, dwelling or other structure, movable or immovable, without the consent of the occupants who are present at the time of entry; or
(11) wear, carry or display any uniform, badge, shield or other insignia or emblem that implies that the bail bondsman or solicitor is an employee, officer or agent of this state, a political subdivision of this state or the federal government.
B. After apprehending a defendant, a bail bondsman or solicitor shall immediately notify the local law enforcement agency of the jurisdiction where the defendant was apprehended of:
(1) the identity of the defendant;
(2) the identity of the bail bondsman or solicitor; and
(3) where the bail bondsman or solicitor is taking the defendant to surrender the defendant into custody.
[B.] C. When a bail bondsman accepts cash as collateral, the bondsman shall deposit the cash in the bondsman's trust account and give a written receipt for same, and this receipt shall give in detail a full account of the collateral received.
[C.] D. Law enforcement, adjudication and prosecution officials and their employees, attorneys-at-law, officials authorized to admit to bail and state and county officers shall not directly or indirectly receive any benefits from the execution of any bail bond.
[D.] E. A bail bondsman shall not sign nor countersign in blank any bond, nor shall the bondsman give a power of attorney to or otherwise authorize anyone to countersign the bondsman's name to bonds unless the person so authorized is a licensed bondsman directly employed by the bondsman giving such power of attorney.
[E.] F. No bail bond agency shall advertise as or hold itself out to be a surety insurer.
[F.] G. Every bail bondsman shall have a permanent street address, and all bail bond business shall be conducted from that address.
[G.] H. Every bail bondsman shall transact all bail bond business, surety or property, in the bondsman's proper individual name or one agency name as stated on the application for license and on the license as issued by the superintendent."
Section 10. Section 59A-51-16 NMSA 1978 (being Laws 1984, Chapter 127, Section 943) is amended to read:
"59A-51-16. ADMINISTRATIVE FINE IN LIEU.--
A. The superintendent may, in [his] the superintendent's discretion, in lieu of license suspension, revocation or refusal, and except on a second offense, impose upon the licensee an administrative penalty of [one hundred dollars ($100)] one thousand dollars ($1,000), or, if the superintendent has found [wilful] willful misconduct or [wilful] willful violation on the part of the licensee, an
administrative penalty of [five hundred dollars ($500)] three thousand dollars ($3,000).
B. The superintendent may allow the licensee a reasonable period, not to exceed thirty [(30)] days, within which to pay to superintendent the amount of the penalty so imposed. If the licensee fails to pay the penalty in its entirety to the superintendent within the period so allowed, the license of the licensee shall stand suspended or revoked, or continuation refused, as the case may be, upon expiration of such period and without any further proceedings."
Section 11. Section 59A-51-18 NMSA 1978 (being Laws 1984, Chapter 127, Section 945) is amended to read:
"59A-51-18. PENALTY.--[Any] A person [violating] who violates any of the provisions of [this article shall upon conviction thereof be fined not more than one thousand dollars ($1,000)] the Bail Bondsmen Licensing Law is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
Section 12. TEMPORARY PROVISION--TRANSITION.--A bail bondsman or solicitor licensed pursuant to the Bail Bondsmen Licensing Law prior to July 1, 2006 shall apply for licensure pursuant to the 2006 amended Bail Bondsmen Licensing Law prior to October 31, 2006 to receive a license without meeting the examination or educational requirements of the 2006 amended act. The superintendent of insurance shall continue to license individuals pursuant to the Bail Bondsmen Licensing Law in effect prior to July 1, 2006 until July 1, 2006.
Section 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2006.
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