CO Code § 16-4-114 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 4 - Release From Custody Pending Final Adjudication|Part 1 - Release on Bail|§ 16-4-114. Enforcement Procedures for Compensated Sureties - Definitions

     The general assembly hereby finds, determines, and declares that the simplicity, effectiveness, and uniformity of bail forfeiture procedures applicable to compensated sureties who are subject to the regulatory authority of the Colorado division of insurance are matters of statewide concern.    It is the intent of the general assembly in adopting this section to:   Adopt a board system that will simplify and expedite bail forfeiture procedures by authorizing courts to bar compensated sureties who fail to pay forfeiture judgments from writing further bonds;    Minimize the need for day-to-day involvement of the division of insurance in routine forfeiture enforcement; and    Reduce court administrative workload.          As used in this section, unless the context otherwise requires:   “Bail insurance company” means an insurer as defined in section 10-1-102 (13), C.R.S., engaged in the business of writing appearance bonds through bonding agents, which company is subject to regulation by the division of insurance in the department of regulatory agencies.    “Board system” means any reasonable method established by a court to publicly post or disseminate the name of any compensated surety who is prohibited from posting bail bonds.    “Compensated surety” means any person who is in the business of writing appearance bonds and who is subject to regulation by the division of insurance in the department of regulatory agencies, including bonding agents and bail insurance companies. Nothing in this paragraph (c) authorizes bail insurance companies to write appearance bonds except through bail bonding agents.    “On the board” means that the name of a compensated surety has been publicly posted or disseminated by a court as being ineligible to write bail bonds pursuant to paragraph (e) or (f) of subsection (5) of this section.       Each court of record in this state shall implement a board system for the recording and dissemination of the names of those compensated sureties who are prohibited from posting bail bonds in the state due to an unpaid judgment as set forth in this section.    By entering into a bond, each obligor, including the bond principal and compensated surety, submits to the jurisdiction of the court and acknowledges the applicability of the forfeiture procedures set forth in this section.    Liability of bond obligors on bonds issued by compensated sureties may be enforced, without the necessity of an independent action, as follows:   In the event a defendant does not appear before the court and is in violation of the primary condition of an appearance bond, the court may declare the bond forfeited.      If a bond is declared forfeited by the court, notice of the bail forfeiture order shall be served on the bonding agent by certified mail and on the bail insurance company by regular mail within fourteen days after the entry of said forfeiture. If the compensated surety on the bond is a cash bonding agent, only the cash bonding agent shall be notified of the forfeiture. Service of notice of the bail forfeiture on the defendant is not required. (b) (I) If a bond is declared forfeited by the court, notice of the bail forfeiture order shall be served on the bonding agent by certified mail and on the bail insurance company by regular mail within fourteen days after the entry of said forfeiture. If the compensated surety on the bond is a cash bonding agent, only the cash bonding agent shall be notified of the forfeiture. Service of notice of the bail forfeiture on the defendant is not required.    The notice described in subparagraph (I) of this paragraph (b) shall include, but need not be limited to:   A statement intended to inform the compensated surety of the entry of forfeiture;    An advisement that the compensated surety has the right to request a show cause hearing pursuant to subparagraph (III) of this paragraph (b) within fourteen days after receipt of notice of forfeiture, by procedures set by the court; and    An advisement that if the compensated surety does not request a show cause hearing pursuant to subparagraph (III) of this paragraph (b), judgment shall be entered upon expiration of thirty-five days following the entry of forfeiture.       A compensated surety, upon whom notice of a bail forfeiture order has been served, shall have fourteen days after receipt of notice of such forfeiture to request a hearing to show cause why judgment on the forfeiture should not be entered for the state against the compensated surety. Such request shall be granted by the court and a hearing shall be set within thirty-five days after entry of forfeiture or at the court's earliest convenience. At the conclusion of the hearing requested by the compensated surety, if any, the court may enter judgment for the state against the compensated surety, or the court may in its discretion order further hearings. Upon expiration of thirty-five days after the entry of forfeiture, the court shall enter judgment for the state against the compensated surety if the compensated surety did not request within fourteen days after receipt of notice of such forfeiture a hearing to show cause.    If such a show cause hearing was timely set but the hearing did not occur within thirty-five days after the entry of forfeiture, any entry of judgment at the conclusion of the hearing against the compensated surety shall not be vacated on the grounds that the matter was not timely heard. If judgment is entered against a compensated surety upon the conclusion of a requested show cause hearing, and such hearing did not occur within thirty-five days after the entry of forfeiture, execution upon said judgment shall be automatically stayed for no more than one hundred twenty-six days after entry of forfeiture.    (A) If at any time prior to the entry of judgment, the defendant appears in court, either voluntarily or in custody after surrender or arrest, the court shall on its own motion direct that the bail forfeiture be set aside and the bond exonerated at the time the defendant first appears in court; except that, if the state extradites such defendant, all necessary and actual costs associated with such extradition shall be borne by the surety up to the amount of the bond.    A compensated surety shall be exonerated from liability upon the bond when the surety provides satisfactory evidence to the court that the defendant has been removed from the country pursuant action by a federal immigration agency while on bond. The court shall exonerate the bail bond if all of the following occur:   The compensated surety files a motion requesting exoneration of the bail bond;    The compensated surety files an affidavit along with the motion stating that the compensated surety has received information from the United States department of homeland security, the United States immigration and customs enforcement, or a foreign consulate that the defendant has been detained or removed from the United States. If the compensated surety is unable to obtain such information from the above sources, the compensated surety must file an affidavit that is signed under penalty of perjury by a person with personal knowledge that the defendant has been detained or removed from the United States.    The district attorney does not object.       If the court exonerates the liability on the bail bond pursuant to subsection (5)(b)(VI) of this section and the bond premium has been paid, any collateral securing the bail bond is released.       Execution upon said bail forfeiture judgment shall be automatically stayed for ninety-one days from the date of entry of judgment; except that, if judgment is entered against a compensated surety upon the conclusion of a requested show cause hearing, and such hearing did not occur within thirty-five days after the entry of forfeiture, the judgment shall be automatically stayed as set forth in subparagraph (IV) of paragraph (b) of this subsection (5).    Upon the expiration of the stay of execution described in paragraph (c) of this subsection (5), the bail forfeiture judgment shall be paid forthwith by the compensated surety, if not previously paid, unless the defendant appears in court, either voluntarily or in custody after surrender or arrest, or the court enters an order granting an additional stay of execution or otherwise vacates the judgment.    If a bail forfeiture judgment is not paid on or before the expiration date of the stay of execution described in paragraph (c) of this subsection (5), the name of the bonding agent shall be placed on the board of the court that entered the judgment. The bonding agent shall be prohibited from executing any further bail bonds in this state until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court.    If a bail forfeiture judgment remains unpaid for thirty-five days after the name of the bonding agent is placed on the board, the court shall send notice by certified mail to the bail insurance company for whom the bonding agent has executed the bond that if said judgment is not paid within fourteen days after the date of mailing of said notice, the name of the bail insurance company shall be placed on the board and such company shall be prohibited from executing any further bail bonds in this state until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court.    A compensated surety shall be removed forthwith from the board only after every judgment for which the compensated surety was placed on the board is satisfied, vacated, or discharged or stayed by entry of an additional stay of execution. No compensated surety shall be placed on the board in the absence of the notice required by paragraph (b) or (f) of this subsection (5).    The court may order that a bail forfeiture judgment be vacated and set aside or that execution thereon be stayed upon such conditions as the court may impose, if it appears that justice so requires.    A compensated surety shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or by order of the court. If the defendant appears in court, either voluntarily or in custody after surrender or arrest, within ninety-one days after the entry of judgment, the court, at the time the defendant first appears in court, shall on its own motion direct that the bail forfeiture judgment be vacated and the bond exonerated; except that, if the state extradites such defendant, all necessary and actual costs associated with such extradition shall be borne by the surety up to the amount of the bond.    If, within one year after payment of the bail forfeiture judgment, the compensated surety effects the apprehension or surrender of the defendant and provides reasonable notice to the court to which the bond returns that the defendant is available for extradition, the court shall vacate the judgment and order a remission of the amount paid on the bond less any necessary and actual costs incurred by the state and the sheriff who has actually extradited the defendant.    Bail bonds shall be deemed valid notwithstanding the fact that a bond may have been written by a compensated surety who has been placed on the board pursuant to paragraph (e) or (f) of this subsection (5) and is otherwise prohibited from writing bail bonds. The ineligibility of a compensated surety to write bonds because the name of the compensated surety has been placed on the board pursuant to paragraph (e) or (f) of this subsection (5) shall not be a defense to liability on any appearance bond accepted by a court.    The automatic stay of execution upon a bail forfeiture judgment as described in paragraph (c) of this subsection (5) shall expire pursuant to its terms unless the defendant appears and surrenders to the court having jurisdiction or satisfies the court that appearance and surrender by the defendant was impossible and without fault by such defendant. The court may order that a forfeiture be set aside and judgment vacated as set forth in paragraph (h) of this subsection (5).       A bail insurance company shall not write bail bonds unless through a licensed bail bonding agent.     History. Source: L. 2013: Entire part R&RE,(HB 13-1236), ch. 202, p. 835, § 2, effective May 11. L. 2017: (5)(b)(VI) and (5)(b)(VII) added,(HB 17-1369), ch. 379, p. 1950, § 3, effective June 6.    Cross references:   For the short title (“Bond Surety Protection Act”) in HB 17-1369, see section 1 of chapter 379, Session Laws of Colorado 2017.   ANNOTATION   Annotator's note. Since § 16-4-114 is similar to § 16-4-112 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision have been included in the annotations to this section.   Subsection (5)(h) authorizes a trial court to order that a bail forfeiture judgment be set aside upon such conditions as the court may impose, “if it appears that justice so requires”. This standard is essentially an appeal to the conscience of the court. No clear rule can be set down that will guide the trial court in every instance, because the court must consider the totality of facts and circumstances in each individual case. People v. Escalera, 121 P.3d 306 (Colo. App. 2005); People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).   Factors the court should consider include: (1) The willfulness of the defendant's violations of the conditions of bail; (2) the surety's participation in locating or apprehending the defendant; (3) the cost, inconvenience, and prejudice suffered by the state resulting from the violation; (4) any intangible costs; (5) the public interest in ensuring the defendant's appearance; and (6) any other mitigating factors. These factors encompass the principle that generally only acts of God, of the state, or of law will relieve a surety from liability. People v. Bustamante-Payan, 856 P.2d 42 (Colo. App. 1993) (decided under former § 16-4-109 (3) ); People v. Escalera, 121 P.3d 306 (Colo. App. 2005); People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).   In exercising its discretion, a trial court should be mindful of the policies concerning bail, including the policy that sureties should not be penalized when it appears they are unable, through no fault of their own, to perform the condition of the bond. People v. Escalera, 121 P.3d 306 (Colo. App. 2005).