February 24, 2009
SENATE BILL No. 45
DIGEST OF SB 45
(Updated February 23, 2009 4:43 pm - DI 106)
Citations Affected: IC 27-10; IC 35-33.
Synopsis: Bail. Makes changes to the Indiana bail law concerning: (1)
notices to sureties and bond agents; (2) circumstances under which a
cause is determined; (3) failure to appear; and (4) substitution of bail
for deposits. Specifies that a court may require a defendant admitted to
bail to execute a bail bond written by an insurer (instead of being
executed with sufficient solvent sureties). Removes a provision that
allows a court admitting a defendant to bail to require the defendant to
post a real estate bond. Makes other changes.
Effective: July 1, 2009.
January 7, 2009, read first time and referred to Committee on Judiciary. Reassigned to
Committee on Corrections, Criminal and Civil Matters pursuant to Senate Rule 65(b).
February 19, 2009, amended, reported favorably _ Do Pass.
February 23, 2009, read second time, amended, ordered engrossed.
February 24, 2009
First Regular Session 116th General Assembly (2009)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type
, and deletions will appear in
this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type
. Also, the
will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type
this style type
between statutes enacted by the 2008 Regular Session of the General Assembly.
SENATE BILL No. 45
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 27-10-2-3; (09)SB0045.2.1. -->
SECTION 1. IC 27-10-2-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: 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 take
(b) A surety remains liable on an undertaking despite:
(1) any lack of the surety's qualifications as required by section 4
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 expire
thirty-six (36) months after it is posted for the release of a defendant
from custody. This section does not apply to cases in which a bond has
been declared to be forfeited
or in which the defendant is a fugitive
from the jurisdiction after thirty-six (36) months. and the surety and
bail agent have been notified as described in section 12 of this
SOURCE: IC 27-10-2-4; (09)SB0045.2.2. -->
SECTION 2. IC 27-10-2-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 4. Every surety for the
release of a person on bail under this chapter or IC 35-33-8-3.2(a)(2)
shall be qualified as:
(1) an insurer as defined and meeting the qualifications prescribed
in IC 27-1-5-1, and represented by a bail agent as defined in and
meeting the qualifications prescribed in this article; 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 is sought
within the third degree of affinity; and
(E) owns real or tangible personal property in Indiana with a
net asset value that is acceptable to the proper authority
approving the bond.
SOURCE: IC 27-10-2-8; (09)SB0045.2.3. -->
SECTION 3. IC 27-10-2-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 8. (a) The court shall
give the bail agent or insurer legal written notice of the defendant's
trial or hearing for purposes of entering a plea at least seventy-two
(72) hours before the defendant's appearance is required unless the
appearance is scheduled within seventy-two (72) hours from the
execution of the bond.
(b) The defendant's failure to appear constitutes a breach of the
undertaking. The court before which the cause is pending shall make
a record of the breach at which time section 12 of this chapter then
SOURCE: IC 27-10-2-10; (09)SB0045.2.4. -->
SECTION 4. IC 27-10-2-10, AS AMENDED BY P.L.2-2005,
SECTION 73, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 10. (a) Recognizances for the appearance of
prisoners shall in 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, and be substantially in the following form:
STATE OF INDIANA )
COUNTY OF _________________ )
State of Indiana.
We, A B and C D, jointly and severally acknowledge ourselves bound
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 the order of the court until the
cause is determined and not depart therefrom without leave, then this
recognizance shall be void, else to remain in full force.
If the above named defendant does not appear at any time fixed in this
bond, the court shall order CD (the surety) to produce the defendant.
The court shall mail notice of this order to CD, the surety at
__________ and __________ in __________ county and state of
Indiana. If the surety does not produce the defendant, and does not pay
all costs and late surrender fees in compliance with IC 27-10-2-12, the
court shall, three hundred sixty-five (365) days after the mailing of the
above notice to the surety, declare the bond forfeited, enter judgment
forthwith against the surety, and certify the judgment to the clerk for
record. Such forfeiture shall be without pleadings and without change
of judge or change of venue. The obligors on such bond may appeal to
the ruling of the court and appeal to the court of appeals as in other
civil cases, and on appeal the evidence may be reviewed. Execution
shall issue forthwith to the sheriff against the properties of each of us
to be levied as other executions 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 surety substantially
State of Indiana )
County of ______________)
I, C D, being duly sworn, on oath say, that I am worth in my personal
rights and name, over and above all debts and liabilities of any and
every kind, not less than _______ dollars, and that I possess real estate
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 and none other,
aggregating the total amount of ________ to-wit: (Here name bonds
and amounts, if any) ________, And that I am not surety on any
recognizance bond of any kind in any court which bond has been
forfeited which judgment remains unpaid.
C D _______________ (SEAL)
Subscribed and sworn to before me, this ___ day of __________,
(Officer administering oath)
(b) Printed forms of the above bonds shall be kept by all clerks of
court that are authorized by law to admit prisoners to bail and shall be
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;
(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;
defendant has been ordered or admitted to a diversion
SOURCE: IC 27-10-2-12; (09)SB0045.2.5. -->
SECTION 5. IC 27-10-2-12 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 12. (a) Only
defendant does not appear as provided in the bond:
(1) the court shall:
(A) issue a warrant for the defendant's arrest; and
(B) order the bail agent and the surety to surrender the
defendant to the court immediately;
(2) the clerk shall, less than thirty (30) days after the
defendant's failure 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 the
(B) after the court issues an order under clause (A), the
surety's original undertaking shall be reinstated if the surety
files a written request for the reinstatement of the undertaking
with the court.
This subsection may not be construed to prevent a court from revoking
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 of
appearance or currently is in the custody of the United
States, a state, or a political subdivision of the United States
or a state;
(iii) because the required notice was not given; or
(iv) because authorities have failed or refused to
extradite the defendant, through evidence satisfactory to
(B) the defendant's absence was not with the consent or
connivance of the sureties.
(c) If the bail agent or surety does not comply with the terms of
subsection (b) within one hundred twenty (120) days after the mailing
of the notice required under subsection (a)(2), a late surrender fee shall
be assessed against the bail agent or surety as follows:
(1) If compliance occurs more than one hundred twenty (120)
days but not more than one hundred eighty (180) days after the
mailing 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 the mailing 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) days
but not more than two hundred forty (240) days after the mailing
of notice, the late surrender fee is fifty percent (50%) of the face
value of the bond.
(4) If compliance occurs more than two hundred forty (240) days
but not more than three hundred sixty-five (365) days after the
mailing 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 the
mailing of notice required under subsection (a)(2), the late
surrender fee is eighty percent (80%) of the face value of the
All late surrender fees are due as of the date of compliance with
subsection (b) or three hundred sixty-five (365) days after the mailing
of notice required under subsection (a)(2), whichever is earlier, and
shall be paid by the surety when due. If the surety fails to pay, then the
late surrender fees shall be paid by the commissioner as provided in
(d) If the bail agent or surety does not comply with the terms of
subsection (b) within three hundred sixty-five (365) days of the mailing
of notice required by subsection (a)(2), the court shall declare forfeited
an amount equal to twenty percent (20%) of the face value of the bond.
The court shall immediately enter judgment on the forfeiture, without
pleadings and without change of judge or change of venue, and assess
against the bail agent or surety all actual costs resulting from the
defendant's failure to appear. These costs include jury fees, witness
fees, and any other documented costs incurred by the court.
(e) Proceedings relative to the bond, forfeiture of a bond, judgment
on the forfeiture, execution of judgment, or stay of proceedings shall
be in the court in which the bond was posted. Costs and late surrender
fee assessed against a bail agent or surety under subsection (c) shall be
satisfied without further order of the court as provided in subsection (f).
The court may waive the late surrender fee or extend the period for
payment beyond the statutorily permitted period, or both, 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 the
court that diligent efforts were made to locate the defendant.
(f) In the case of an insurer, if the fees, costs, or judgment is not
paid, then the clerk shall mail the notice to the commissioner. The
(1) within ten (10) days of receipt of the notice forward a copy by
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 the
fees or judgment or both have been paid, pay the late surrender
fee assessment, costs, and any judgment of forfeiture ordered by
the court from funds the insurer has on deposit with the
department of insurance;
(3) upon paying the assessment, costs, and judgment, if any, from
funds on deposit, immediately revoke the license of the insurer,
if the satisfaction causes the deposit remaining to be less than the
amount required by this article; and
(4) within ten (10) days after revoking a license, notify the insurer
and the insurer's agents and the clerk of each county in Indiana of
the revocation and the insurer shall be prohibited from conducting
a bail bond business in Indiana until the deposit has been
(g) The notice mailed by the clerk to the commissioner pursuant to
the terms of subsection (f) shall include:
(1) the date on which the defendant originally failed to appear as
provided in the bond;
(2) the date of compliance with subsection (b), if compliance was
achieved within three hundred sixty-five (365) days after the
mailing 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 to
(6) if applicable, the dollar amount of the judgment of forfeiture
entered by the court.
(h) Any surety on a bond may appeal to the court of appeals as in
other civil cases without moving for a new trial, and on the appeal the
evidence, if any, shall be reviewed.
(i) Fifty percent (50%) of the late surrender fees collected under this
chapter shall be deposited in the police pension trust fund established
under IC 36-8-10-12 and the remaining fifty percent (50%) shall be
deposited in the county extradition fund established under IC 35-33-14.
SOURCE: IC 35-33-8-3.2; (09)SB0045.2.6. -->
SECTION 6. IC 35-33-8-3.2, AS AMENDED BY P.L.104-2008,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2009]: Sec. 3.2. (a) A court may admit a defendant to bail and
impose any of the following conditions to assure the defendant's
appearance at any stage of the legal proceedings, or, upon a showing
of clear and convincing evidence that the defendant poses a risk of
physical danger to another person or the community, to assure the
public's physical safety:
(1) Require the defendant to:
(A) execute a bail bond
with sufficient solvent sureties;
written by an insurer (as defined in IC 27-10-1-7);
(B) deposit cash or securities in an amount equal to the bail;
(C) execute a bond secured by real estate in the county, where
thirty-three hundredths (0.33) of the true tax value less
encumbrances is at least equal to the amount of the bail; or
(D) post a real estate bond; or
perform any combination of the requirements
described in clauses (A) through
If the court requires the defendant to deposit cash or cash and
another form of security as bail, the court may require the
defendant and each person who makes the deposit on behalf of the
defendant to execute an agreement that allows the court to retain
all or a part of the cash to pay publicly paid costs of
representation and fines, costs, fees, and restitution that the court
may order the defendant to pay if the defendant is convicted. The
defendant must also pay the fee required by subsection (d).
(2) Require the defendant to execute:
(A) a bail bond by depositing cash or securities with the clerk
of the court in an amount not less than ten percent (10%) of
the bail; and
(B) an agreement that allows the court to retain all or a part of
the cash or securities to pay fines, costs, fees, and restitution
that the court may order the defendant to pay if the defendant
A portion of the deposit, not to exceed ten percent (10%) of the
monetary value of the deposit or fifty dollars ($50), whichever is
the lesser amount, may be retained as an administrative fee. The
clerk shall also retain from the deposit under this subdivision
fines, costs, fees, and restitution as ordered by the court, publicly
paid costs of representation that shall be disposed of in
accordance with subsection (b), and the fee required by
subsection (d). In the event of the posting of a real estate bond,
the bond shall be used only to insure the presence of the
defendant at any stage of the legal proceedings, but shall not be
foreclosed for the payment of fines, costs, fees, or restitution. The
individual posting bail for the defendant or the defendant
admitted to bail under this subdivision must be notified by the
sheriff, court, or clerk that the defendant's deposit may be
forfeited under section 7 of this chapter or retained under
subsection (b). IC 27-10-2-15 applies to a deposit made under
(3) Impose reasonable restrictions on the activities, movements,
associations, and residence of the defendant during the period of
(4) Require the defendant to refrain from any direct or indirect
contact with an individual, including if the defendant has not been
released from lawful detention.
(5) Place the defendant under the reasonable supervision of a
probation officer, pretrial services agency, or other appropriate
public official. If the court places the defendant under the
supervision of a probation officer or pretrial services agency, the
court shall determine whether the defendant must pay the pretrial
services fee under section 3.3 of this chapter.
(6) Release the defendant into the care of a qualified person or
organization responsible for supervising the defendant and
assisting the defendant in appearing in court. The supervisor shall
maintain reasonable contact with the defendant in order to assist
the defendant in making arrangements to appear in court and,
where appropriate, shall accompany the defendant to court. The
supervisor need not be financially responsible for the defendant.
(7) Release the defendant on personal recognizance unless:
(A) the state presents evidence relevant to a risk by the
(i) of nonappearance; or
(ii) to the physical safety of the public; and
(B) the court finds by a preponderance of the evidence that the
(8) Impose any other reasonable restrictions designed to assure
the defendant's presence in court or the physical safety of another
person or the community.
(b) Within thirty (30) days after disposition of the charges against
the defendant, the court that admitted the defendant to bail shall order
the clerk to remit the amount of the deposit remaining under subsection
(a)(2) to the defendant. The portion of the deposit that is not remitted
to the defendant shall be deposited by the clerk in the supplemental
public defender services fund established under IC 33-40-3.
(c) For purposes of subsection (b), "disposition" occurs when the
indictment or information is dismissed or the defendant is acquitted or
convicted of the charges.
(d) Except as provided in subsection (e), the clerk of the court shall:
(1) collect a fee of five dollars ($5) from each bond or deposit
required under subsection (a)(1); and
(2) retain a fee of five dollars ($5) from each deposit under
The clerk of the court shall semiannually remit the fees collected under
this subsection to the board of trustees of the public employees'
retirement fund for deposit in the special death benefit fund. The fee
required by subdivision (2) is in addition to the administrative fee
retained under subsection (a)(2).
(e) With the approval of the clerk of the court, the county sheriff
may collect the bail posted under this section. The county sheriff shall
remit the bail to the clerk of the court by the following business day
and remit monthly the five dollar ($5) special death benefit fee to the
(f) When a court imposes a condition of bail described in subsection
(1) the clerk of the court shall comply with IC 5-2-9; and
(2) the prosecuting attorney shall file a confidential form
prescribed or approved by the division of state court
administration with the clerk.
SOURCE: IC 35-33-8-7; (09)SB0045.2.7. -->
SECTION 7. IC 35-33-8-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 7. (a) If a defendant:
(1) was admitted to bail under section 3.2(a)(2) of this chapter;
(2) has failed to appear before the court as ordered;
the court shall, except as provided in subsection (b) or section 8(b)
of this chapter, declare the bond forfeited not later than one
hundred twenty (120) days after the defendant's failure to appear
issue a warrant for the defendant's arrest.
(b) In a criminal case, if the court having jurisdiction over the
criminal case receives written notice of a pending civil action or
unsatisfied judgment against the criminal defendant arising out of the
same transaction or occurrence forming the basis of the criminal case,
funds deposited with the clerk of the court under section 3.2(a)(2) of
this chapter may not be declared forfeited by the court, and the court
shall order the deposited funds to be held by the clerk. If there is an
entry of final judgment in favor of the plaintiff in the civil action, and
if the deposit and the bond are subject to forfeiture, the criminal court
shall order payment of all or any part of the deposit to the plaintiff in
the action, as is necessary to satisfy the judgment. The court shall then
order the remainder of the deposit, if any, and the bond forfeited.
(c) Any proceedings concerning the bond, or its forfeiture,
judgment, or execution of judgment, shall be held in the court that
admitted the defendant to bail.
(d) After a bond has been forfeited under subsection (a) or
clerk shall mail notice of forfeiture to the defendant. In addition, unless
the court finds that there was justification for the defendant's failure to
appear, the court shall immediately enter judgment, without pleadings
and without change of judge or change of venue, against the defendant
for the amount of the bail bond, and the clerk shall record the
(e) If a bond is forfeited and the court has entered a judgment under
subsection (d), the clerk shall transfer to the state common school fund:
(1) any amount remaining on deposit with the court (less the fees
retained by the clerk); and
(2) any amount collected in satisfaction of the judgment.
(f) The clerk shall return a deposit, less the administrative fee, made
under section 3.2(a)(2) of this chapter to the defendant, if the defendant
appeared at trial and the other critical stages of the legal proceedings.