Could an out-of-state bail bondsman enter South Carolina to arrest a defendant on another state’s bond-revocation warrant?

Plain-English summary

The Attorney General reaffirmed its earlier view that a bondsman from another state could enter South Carolina to arrest a defendant on a warrant revoking that state's bond without first obtaining a South Carolina bondsman license. The opinion treated that specific act differently from ongoing bondsman business in the state.

The office reasoned that applying South Carolina's resident-only license requirement to the visiting bondsman would discriminate based on residency, contrary to the federal Privileges and Immunities Clause. Its answer concerned an out-of-state bond-revocation warrant and did not address other arrest situations.

Currency note

This opinion was issued in 2010. 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 the opinion require a South Carolina license for a visiting bondsman making that arrest? A: No. It concluded that the bondsman could make an arrest on another state's bond-revocation warrant without a South Carolina license.

Q: Why did the office reject the residency requirement in that situation? A: It concluded that forcing the out-of-state bondsman to obtain a license limited to residents would discriminate against a citizen of another state under the federal Privileges and Immunities Clause.

Q: Did the opinion approve a visiting bondsman operating an ongoing South Carolina business? A: It did not decide that question. It relied partly on a state decision distinguishing an isolated act from an intention to engage in continuing business.

Background and statutory framework

The Department of Insurance asked the Attorney General to revisit a 2008 opinion in light of state licensing and residency provisions. The office reaffirmed its earlier answer, citing common-law surety authority and federal constitutional protection against discrimination based on state citizenship.

Citations and references

The original text below quotes S.C. Code Ann. § 38-53-80 and discusses S.C. Code Ann.§ 38-53-90, Saenz v. Roe, 526 U.S. 489 at 501-502 (1999), and Wrenn Bail Bond Service, Inc. v. City of Hanahan, 335 S.C. 26, 515 S.E.2d 521 (1999).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-14-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/belton-d-os-9087-6-14-10-bail-bondsman-out-of-state.pdf

Original opinion text

HENRY MCMASTER
AITORNEY GENERAL

June 14, 2010

David Belton, Associate Genera1 Counsel
South Carolina Department of lnsurance
P. 0. Box 100105
Columbia, South Carolina 29202-3105
Dear Mr. Belton:
You have requested that this office review its opinion of January 9, 2008 in which we concluded that " ...a bail bondsman from outside South Carolina would appear to have the authority to arrest a defendant in South Carolina on a warrant from another state revoking the defendant's bond in that state." Reference was made in that opinion to another previous opinion of this office dated December 20, 1977 which stated that
.. .it is generally accepted at common law that the right of a surety on a bail bond to take the principal into custody, deliver him to the proper authority and be relieved of his obligation under the bond does exist. The United States Supreme Court in Taylor v. Tainter, 21L.Ed.2d287 (1873) stated:
[w]hen bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. You referenced the provisions of S.C. Code Ann. § 38-53-80 which state:
[n)o person may act in the capacity of a professional bondsman, surety bondsman, or runner or perform any of the functions, duties, or powers prescribed for professional or surety bondsmen or runners under the provisions of this chapter REMBERT c. DENNCS B UILDING • POST OFFICE B ox 11549 • CoLUMJSIA, SC 292 ll-1549 •

TELEPHONE 803-734-3970

•

FACSIMILB 803-253-6283

Mr. Belton
Page2
June 14, 2010
unless that person is qualified, except for an accommodation bondsman, licensed in accordance with the provisions of this chapter. No license may be issued to a professional bondsman, surety bondsman, or runner except as provided in this chapter. (emphasis added). S.C. Code Ann.§ 38-53-90 states that " ... [b]efore being issued .... (a) .. .license, every applicant for a license as a professional bondsman, surety bondsman, or runner shall certify... that he: ... (b) is a resident of this State.... " Therefore, you have questioned whether an individual who is not a resident of this State and, therefore, cannot be licensed in this State as a bondsman would have the authority to arrest a defendant in South Carolina on a warrant from another state revoking the defendant's bond in that state. The United States Supreme Court in Saenz v. Roe, 526 U.S. 489 at 501-502 (1999) determined that
... by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the "Privileges and Immunities of Citizens in the several States" that he visits ... This provision removes "from the citizens of each State the disabilities of alienage in the other States." Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1868) ("[W]ithout some provision ... removing from the citizens ofeach State the disabilities ofalienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists"). It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), to procure medical services, Doe v. Bolton, 410 U.S. 179, 200, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 ( 1948). Those protections are not "absolute," but the Clause "does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Id., at 396, 68 S.Ct. 1156. Moreover, in its decision in Wrenn Bail Bond Service, Inc. v. City of Hanahan, 335 S.C. 26, 515 S.E.2d 521 (1999), the State Supreme Court dealt with a case where a bail bondsman brought an action challenging a city's imposition of a business license fee. The Court concluded that the facts in that case did not support the imposition of the fee and stated that.
[g]enerally, the determination whether a party is "doing business" in a certain jurisdiction is dependent upon the facts of each case. See Sanders v. Columbian ProtectiveAss'n, 208 S.C. 152, 37 S.E.2d 533 (1946). We find the facts in this case do not support imposition of the business license fee.

Mr. Belton
Page3
June 14, 2010

The only fact connecting City with the actual transaction between the parties is that Wrenn provided a service to one of its residents which City argues constitutes doing business under the business license ordinance. In Pee Dee Chair Co. v. City of Camden, 165 S.C. 86, 162 S.E. 771 (1932), this Court held a single act does not constitute doing business for purposes of a business license fee where there are no facts to indicate it is not an isolated instance but an intention to engage in business. We find nothing in this record to indicate Wrenn's intent to engage in a continuing business as bail bondsman for residents of City.... (emphasis added). 335 S.C. at 29-30. Therefore, the Court determined that a single act did not constitute "doing business" so as to require payment of a license fee. As to the question addressed here as to whether the State can require an out-of-state bondsman to be licensed in South Carolina in order to arrest a defendant in South Carolina on a warrant from another state revoking the defendant's bond in that state, this office stands by its earlier conclusion set forth above. Therefore, in the opinion of this office, an out-of-state bondsman, consistent with Taylor v. Tainter, supra, can come into South Carolina to arrest a defendant on a warrant from another state revoking that defendant's bond in that state without being licensed by this State. To require that out-of-state bondsman to also be licensed in South Carolina would be discriminatory. Such discrimination, based upon residency, would, in the opinion of this office, violate the privileges and immunities clause of the federal Constitution. See: Hicklin, supra. Therefore, the determination set forth in Taylor v. Tainter would still apply notwithstanding the requirements of Sections 38-53-80 and 38-53-90. Very truly yours, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

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VRobert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General