Did a South Carolina bail bondsman need a court hearing to get off a bond after surrendering a defendant?

Plain-English summary

A municipal judge asked whether a bail bondsman could be relieved after surrendering a defendant without a hearing. The AG said the surety had to file a motion, serve the specified parties, and receive a court hearing before being relieved. The statute permitted the surety to bring the defendant to detention first in specified urgent circumstances, but required a supporting affidavit and a motion while the defendant was held pending the court's order.

The AG also addressed which court could hold the hearing. Before a case's papers went to the clerk of general sessions, a magistrate or municipal judge could hear the matter, particularly if that court had set the bond. After transfer, the court of general sessions would decide it. A new bond undertaking could secure the defendant's release after the original surety was relieved.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did surrendering the defendant automatically take the bondsman off the bond?
A: No. The AG said relief required a court motion and hearing, followed by a court order.

Q: Could a bondsman bring a defendant to detention before that hearing?
A: The statute allowed it when immediate incarceration was warranted to prevent an imminent bond-term violation or a term had already been violated, with an affidavit and motion required.

Q: Which court heard the request to leave the bond?
A: The AG said the magistrate or municipal court could do so before the case documents were transmitted to general sessions; afterward, general sessions would decide.

Q: Could the defendant be released on bond again?
A: Yes. The opinion said a new undertaking filed with the appropriate court could secure release after the first surety was relieved.

Background and statutory framework

Section 38-53-50 governed motions, hearings, urgent surrender, and re-release. Section 38-53-10(5) defined “court” for the statute. The AG cited State v. Brakefield and an earlier AG opinion when explaining the relevant court as a case moved from municipal or magistrate court to general sessions.

Citations

• Section 38-53-50
• Section 38-53-10(5)
• State v. Brakefield

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-29-2004-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan29putman.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAs'rER
ATTORNEY GENF.JlAL

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January 29, 2004

The Honorable Ralph E. Putnam
Senior Administrative Judge
City of Greenville, Municipal Court
P. 0. Box488
Greenville, South Carolina 29602
Dear Judge Putnam:
In a letter to this office you raised several questions regarding bail bondsmen going off a bond. S.C. Code Ann. Section 38-53-50 (2002) states as follows:

(A) A surety desiring to be relieved on a bond for "good cause" or the nonpayment of fees shall file with the court a motion to be relieved on the bond. A copy of the motion must be served upon the defendant, his attorney, and the solicitor's office. The court shall then schedule a hearing to determine if the surety should be relieved on the bond and advise all parties of the hearing date. (B) Ifthe circumstances warrant immediate incarceration of the defendant to prevent imminent violation of any one of the specific terms of the bail bond, or if the defendant has violated any one of the specific terms ofthe bond, the surety may talce the defendant to the appropriate detention facility for holding until the court orders that the surety be relieved. The surety must immediately file with the detention facility and the court an affidavit stating the facts to support the surrender of the defendant for good cause or the nonpayment of fees. When the affidavit is filed with the court, the surety must also file a motion to be relieved on the bond pursuant to subsection (A). A surety who surrenders a defendant and files an affidavit which does not show good cause or the nonpayment of fees is subject to penalties imposed for perjury as provided for in Article I, Chapter 9 of Title 16. (C) After the surety has been relieved by order of the court, a new undertaking must be filed with the appropriate court in order to secure the re-release of the defendant. The undertaking must contain the same conditions included in the original bond unless the conditions have been changed by the court.

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8UUDING

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POST OFFICE Box 11549

• COLUMBIA, S.C. 29211- 1549 • TELEPHONE: 803-734-3970 •

FACSfMll.E: 803-253.{)283

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The Honorable Ralph E. Putnam
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January 29, 2004

In your first question you asked if a bail bondsman files the required paper work to be

relieved on a bond and submits such to the detention facility, is a hearing required. As set forth above, a surety desiring to be relieved on a bond must file with the court a motion to be relieved on the bond. The court thereafter schedules a hearing to determine ifthe surety should be relieved on the bond. However, as further stated by Section 38-53-50(B), "(i)f the circumstances warrant immediate incarceration" as set forth by such provision, the surety may take the defendant to the apprQpriate detention facility for holding until the court orders that the surety may be relieved.

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You next asked who can hold the hearing referenced by Section 38-53-50. As set forth in subsection (A), "the court shall then schedule a hearing .... " Pursuant to Section 38-53-10(5), the term "court" " ... unless otherwise specified, means circuit, magistrate's, or municipal court." In its decision in State v. Brakefield, 302 S.C. 317, 318, 396 S.E.2d 103, 104 (1990), the supreme court construed an earlier version of Section 38-53-50 in indicating that the procedure "allows surrender to the court which issued the bond." An opinion ofthis office dated October 27, 1993 also dealt with the earlier version of Section 38-53-50 in dealing with the question as to which court has jurisdiction with respect to the surrender of a defendant in a bail bond situation. That opinion referenced Rule 3 of the South Carolina Rules of Criminal Procedure which provides that magistrates and municipal judges
... shall, in all cases within the jurisdiction of the Court of General Sessions, forward to the Clerk of the Court of General Sessions all documents pertaining to the case... within fifteen (15) days from the date of arrest in the case of an arrest warrant and date of issuance in the case of other documents.

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That opinion stated that
I have been advised by the Office of Court Administration that pursuant to such Rule, Sections 38-53-10 and 38-53-50 should be interpreted whereby a magistrate or municipal judge would not be considered as having authority regarding a particular defendant after the documents pertaining to the case are transmitted to the Clerk of Court's Office. Consistent with that opinion, and absent any further directive from the Court, it appears that until documents related to a case within the jurisdiction of the court of general sessions are transmitted to the clerk of the court of general sessions pursuant to Rule 3, a magistrate or municipal judge would be authorized to schedule a hearing to determine if a surety should be relieved on a bond, especially if that court originally set the bond. After the papers are transmitted, such matter would be determined by the court of general sessions. You next asked whether a defendant has the right to a bond even if his bondsman wants to be relieved. Section 3 8-53-50 provides that "(a)fter the surety has been relieved by order of the

The Honorable Ralph E. Putnam
Page 3
January 29, 2004

court, a new undertaking must be filed with the appropriate court in order to secure the re-release of the defendant." Therefore, a defendant may be released again on bond pursuant to such provision.

If there are any questions regarding the above, please advise.

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert
D. Cook

Assistant Deputy Attorney General

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