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Unofficial Opinion 94-17

Unofficial Opinion 94-17

December 22, 1994
To: 

Representative December 22. 1994 District 115

Re: 

A professional bondsman may require as a condition of his suretyship that, in addition to the fee allowed by O.C.G.A. ¿ 17-6-30, he receive an indemnification from a third party in an amount equal to the principal amount of the bond without violating O.C.G.A. ¿ 17-6-30. Furthermore, a court may order the payment of restitution to a bail bondsman for a loss sustained as a consequence of an accused criminal jumping bail in violation of O.C.G.A. § 16-10-51.

You have asked whether a bail bondsman may obtain a third party promissory note or an indemnification agreement in the amount of the bond, with costs, upon which the bondsman can collect in the event that the accused fails to appear in court and the court issues a bond forfeiture and fi. fa. against the bail bondsman. Official Code of Georgia Annotated § 17-6-30 prohibits sureties on criminal bonds from charging or receiving "more than 10 percent of the principal amount of the bonds as compensation from defendants or anyone acting for defendants."

In Op. Att'y Gen. U80-3, it was opined that "[i]t is clear that upon forfeiture of the bond and rule absolute the bondsman as surety has a right to recover the amount of the bond from the principal." 1980 Op. Att'y Gen. U80-3, p. 386. The opinion does not directly answer the question, but suggests that the bondsman may be able to accept from a third party collateral as security for the amount of the bond so long as any recovery on the collateral does not exceed the value of the bond.

The cardinal rule of statutory construction is that the legislative intent is to be given effect. It is my view that the plain meaning of the statute is to prevent professional bondsmen from taking unfair advantage of persons charged with crimes by assessing usurious rates of interest on the principal amount of the bond. Hence, O.C.G.A. § 17-6-30 sets a ten percent limit as the maximum compensation for the posting of the bond. When an accused criminal fails to appear, resulting in a forfeiture of the bond principal, the bondsman would have a cause of action and be able to recover the amount of the bond and his costs. O.C.G.A. § 10-7-1 et seq. Such a recovery would not be compensation for the posting of the bond as defined in O.C.G.A. § 17-6-30, but rather would simply be the recovery of the principal and cost to which the bondsman would be entitled under the contract with the accused. Accordingly, there appears to be no reason that the bondsman could not also recover the principal and costs under the same circumstances from a third party. Official Code of Georgia Annotated § 17-6-30 makes no distinction between a criminal defendant and a third party acting for the defendant.

The case of Johnson v. State, 135 Ga. App. 51 (1975), does not address the issue you have presented. The court in Johnson did not have to address the issue of whether the statute was violated by the receipt of excessive compensation because it found that the bondsman had not received legal payment.

A promissory note for the amount of the bond would not be an appropriate collateral device. A promissory note is a type of negotiable instrument which must be payable on demand or at a time certain. O.C.G.A. § 11-3-104(1)(c). By definition, a promissory note cannot be conditioned upon the occurrence of an event such as the accused's jumping bail.

An indemnity agreement would be an appropriate instrument to use. Indemnity is reimbursement, an undertaking whereby one agrees to indemnify another upon the occurrence of an anticipated loss. An indemnity agreement could reimburse the surety through a third party in the event the accused jumps bail. This reimbursement is not compensation for the posting of the bond. Accordingly, it is my unofficial opinion that a bondsman may obtain an indemnification agreement from a third party conditioned upon paying the amount of the bond and any actual costs without being in violation of O.C.G.A. § 17-6-30.

In your second question, you inquire about the propriety of a court ordering restitution to the bondsman of the amount of the bond and costs upon the conviction of the accused of jumping bail pursuant to O.C.G.A. § 16-10-51. When an accused jumps bail in violation of O.C.G.A. § 16-10-51, the bail bondsman becomes a victim of crime, and is regarded as any other crime victim would be in a court of law. The Georgia General Assembly has codified the procedures and guidelines for the award of restitution in O.C.G.A. § 17-14-1 et seq. The amount of restitution may be equal to or less than the victim's damages. O.C.G.A. § 17-4-9. Hence, if the court calculates the amount of damages to include the amount of the bond and any costs accrued by the bondsman and finds that restitution is appropriate under the considerations contained in O.C.G.A. § 17-14-10, a court does have the discretion to order restitution.

Prepared by:

WILLIAM F. AMIDEO
Assistant Attorney General