Under South Carolina's 2023 bond reform, can a defendant pay a bail premium in installments?

Official title

Opinion interpreting Section 38-53-170(e) pertaining to bond premium requirements considering the 2023 bond reform legislation.

Requester

Requested by The Honorable B. Lee Miller, Municipal Judge, City of Greenwood.

Plain-English summary

A Greenwood municipal judge asked the Attorney General to settle a disagreement about South Carolina's 2023 bond reform law. The Greenwood Clerk of Court had told the judges that the new law requires a defendant to post the entire ten percent premium with the bond company up front, and only then arrange a payment plan for any amount above ten percent (up to the fifteen percent maximum). The judge understood it differently: a defendant pays $100 down, then can set up a payment plan for the rest, with the balance due within eighteen months. Which reading is right?

The office accepted the judge's reading that a plan may cover the minimum premium, while framing the plan as the bondsman's choice. The 2023 law (Act 83) rewrote § 38-53-170(e) so a bondsman must charge and collect a minimum fee of $100 or ten percent of the bond, whichever is greater, before executing the bond. But the same subsection then says "However" (a word the office read as signaling a contradiction or exception) the bondsman may enter a payment agreement, attached to the bond proceeding form, requiring a minimum down payment of $100. Read as a whole, the statute lets a bondsman take a $100 down payment and finance the rest of the minimum premium under a payment agreement, so long as the agreement meets the statute's conditions.

The office rejected the clerk's reading as absurd for two reasons. First, it made no sense for the Legislature to authorize a payment agreement for an amount (the premium above ten percent) the bondsman is not even required to charge. Second, the clerk's reading would force a defendant to pay the full ten percent up front plus an extra $100 just for the chance to finance the optional excess. The legislative history reinforced the point: an earlier Senate version set the payment-agreement down payment at $100 or five percent of the bond, and if the agreement covered only the excess above ten percent, a five-percent down payment would leave nothing to finance (since the maximum premium is fifteen percent). The office also leaned on the constitutional right to bail (S.C. Const. art. I, § 15), reading the statute to balance the Legislature's goal of higher, standardized premiums against defendants' ability to pay, which keeps the statute on constitutional footing.

The resulting option belongs to the bondsman. A bondsman may accept at least $100 down and a compliant agreement for the remaining minimum premium, with a term no longer than eighteen months from execution of the bond. The opinion does not require a bondsman to offer installments to a defendant.

What this means for you

Bail bondsmen and runners: The opinion reads § 38-53-170(e) to require a minimum premium of $100 or ten percent of the bond (whichever is greater), while permitting a bondsman to accept a $100 down payment and finance the remaining minimum premium under a compliant payment agreement attached to the bond proceeding form, capped at eighteen months. Offering that agreement is optional.

Judges and clerks of court: The opinion rejects the view that a payment agreement may cover only premium above the ten percent minimum. It reads the statute as permitting a bondsman to finance part of the minimum premium. It does not require every bondsman to do so.

Defendants and those posting bond: Ask the bondsman whether a payment agreement is available. If the bondsman chooses to offer one, the opinion allows at least $100 down with the remaining minimum premium paid under a compliant agreement of no more than eighteen months. A bondsman may instead require the full premium before the bond is executed. Two consecutive months without payment trigger the notice and possible surrender process described in the statute.

Criminal defense lawyers: The opinion is useful for the proposition that the 2023 amendments allow installment payment of the minimum premium, and that the office read the statute to protect defendants' constitutional right to bail against an interpretation that would price it out of reach.

Common questions

Do I have to pay the full 10% bail premium up front in South Carolina? The AG says the statute permits a bondsman to accept at least $100 down and an agreement for the rest of the minimum premium. The bondsman can choose whether to offer that agreement. If no agreement is offered, the full applicable minimum premium is collected before the bond is executed.

What is the minimum bail premium under the 2023 reform?
A bondsman must charge a minimum fee of $100 or ten percent of the bond, whichever is greater. The AG reads the statute's payment-agreement clause as allowing the bondsman to collect at least $100 down and the rest of that minimum later.

How long can a bail premium payment plan last?
The payment agreement cannot exceed eighteen months from the date the bond was executed, and it cannot be altered.

What happens if I stop paying?
If no payment is made for two consecutive months, the bondsman must send a certified notice demanding payment within ten days. If none comes, the bondsman must surrender the principal and move to be relieved, at which point the balance is accelerated and due before re-release on bond.

Background and statutory framework

Before 2023, § 38-53-170(e) capped a bondsman's premium at fifteen percent of the bond with a minimum fee of twenty-five dollars, giving bondsmen wide flexibility. Act 83 of 2023 amended the subsection to require a minimum fee of $100 or ten percent of the bond, whichever is greater, collected before the bond is executed, while adding detailed payment-agreement language: a $100 minimum down payment, an eighteen-month cap, a no-alteration rule, a certified-notice-and-surrender process for missed payments tied to the motion-to-be-relieved procedure in § 38-53-50(A), and rules on collateral and the return of any overage after forfeiture.

The office applied standard statutory-construction principles: ascertain and effectuate legislative intent, treat the text as the best evidence of intent (Hodges v. Rainey), read the statute as a whole giving effect to each part (Hudson ex rel. Hudson v. Lancaster Convalescent Ctr.), and reject interpretations producing absurd results (Lancaster Cnty. Bar Ass'n v. S.C. Comm'n on Indigent Def.). It consulted the legislative history (Ex parte Cannon) and applied the presumption that statutes are construed to be constitutional (State v. Neuman), reading § 38-53-170(e) in light of the constitutional right to bail (art. I, § 15) so the premium scheme remains within defendants' ability to pay.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-interpreting-section-38-53-170-e-pertaining-to-bond-premium-requirements-considering-the-2023-bond-reform-legislation/
• Original PDF: https://www.scag.gov/media/pcfcnzeh/03612493.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

June 17, 2024

The Honorable B. Lee Miller

Municipal Judge

City of Greenwood

Post Office Box 40

Greenwood, South Carolina 29648-0040

Dear Judge Miller:

We received your request for an opinion from this Office concerning the recently adopted bond reform legislation. You state the Greenwood Clerk of Court sent out information to all the judges concerning bonding procedures under this new legislation. Specifically, the Clerk of Court stated, “the new bond law requires the defendant to post the entire ten percent (10%) with the bond company and then may make a payment plan for anything over ten percent, up until the maximum amount is reached which is fifteen (15%) percent.” You informed us that you were under the impression that

the defendant had to pay $100.00, then a payment plan could be implemented for the remainder of the balance. The balance must be paid off within eighteen months of the signing of the original bond contract. If the balance is not paid in full then other measures would be triggered concerning the bond.

Thus, you ask us to resolve the conflict between these interpretations.

Law/ Analysis

As you mentioned in your letter, in 2023 the Legislature enacted bond reform legislation that included changes to section 38-53-170(e) pertaining to payments to bondsmen. 2023 S.C. Acts

83. Section 38-53-170(e) prohibits bondsmen from accepting anything of value except the
    premium. Prior to the 2023 legislation, section 38-53-170(e) mandated that the premium “may not exceed fifteen percent of the face amount of the bond, with a minimum fee of twenty-five dollars.” S.C. Code Ann. § 38-53-170(e) (2015). Thus, this provision gave bondsmen a lot of flexibility as to the premium charged and how it was collected, only requiring a minimum fee of twenty-five dollars and a maximum fee of fifteen percent of the bond.

Act 83 amended section 38-53-170(e), which now provides for “a minimum fee of one hundred dollars or ten percent of the bond, whichever is greater, that must be charged and collected by the bondsman before the execution of the bond.” S.C. Code Ann. § 38-53-170(e) (Supp. 2023). But the revisions to subsection 38-53-170(e) also include the following language: KGRIBERTC. DENNIS BUILDING + POST OFFICE BON J 1349 6 COLUMBLA, SC 29211-1549 6 “PELEpHOME Sub-744-3970

The Honorable B. Lee Miller
Page 2
June 17, 2024

However, the bondsman is permitted to enter into a payment agreement by attaching a statement of bondsman to the bond proceeding form and this agreement shall require the principal on the bail bond or any indemnitor to make a minimum down payment of one hundred dollars. This payment agreement may not be altered and must not exceed eighteen months after the date on which the bond was executed. If the payment has not been made for two consecutive months, the bondsman must send a certified notice to the last known address of the principal and indemnitor demanding payment be made within ten days to bring the agreement current. If no payment is received by the end of the notice period, the bondsman must surrender the principal to the proper detention facility for holding and file a motion to be relieved as provided in Section 38- 53-50(A) or (B), at which time the agreement must be accelerated, and the balance paid in full, before or at the motion hearing for the principal to be rereleased on bond. The bondsman may accept collateral security or other indemnity from the principal which must be returned within ten days after final termination of liability on the bond unless a bench warrant has been issued. The bondsman shall identify who is paying the premium and shall represent that the collateral security or other indemnity has not been obtained from any person who has a greater interest in the principal's disappearance than appearance for trial. The collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. If the bond is forfeited, a bondsman may not convert collateral described in the collateral receipt to cash until he has provided a ten-day notice of this pending conversion to the depositor. This notice must be sent by certified mail to the last known address of the depositor. After the conversion, the bondsman must disclose the actual amount received to the depositor and must return any amount received that exceeds the final judgement or consent amount, less any reasonable expenses. These reasonable expenses include apprehension and legal costs incurred as a result of the violation of the bond. The bondsman must provide the depositor copies of all receipts and, if applicable, the overage money within three days after settlement ....

Id. (emphasis added).

When interpreting a statute, as we are asked to do here, we start with the cardinal rule of statutory construction, which is to “to ascertain and effectuate the intent of the legislature.” Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). ‘“‘What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature.’” Id, at 85, 533 S.E.2d at 581 (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (Sth ed. 1992)). “Further, statutes must be read as a whole and sections which are part of the same general statutory scheme must be construed together and each given effect, if it can be done by any reasonable construction.”

The Honorable B. Lee Miller
Page 3
June 17, 2024

Hudson ex rel. Hudson v. Lancaster Convalescent Ctr., 407 S.C. 112, 124-25, 754 S.E.2d 486, 492-93 (2014).

Initially, section 38-53-170(e) requires the charge and collection of ten percent of the bond or at a minimum one hundred dollars. Based on the plain language used in this portion of section 38-53- 170(e), we are led to believe the Legislature intended for ten percent of the bond, or at a minimum one hundred dollars, to be collected prior to the execution of the bond. But, the Legislature appears to have modified this requirement by also including the language allowing a bondsman to enter into a payment agreement with the principal starting with the use of the term “However”- a term of contradiction. Thus, while the Legislature clearly intends for bondsmen to charge premiums of a minimum of ten percent of the bond, we are of the opinion that they also intended to give bondsmen the option to accept a minimum payment of one hundred dollars and allow the principal to make payments on the remaining minimum premium as long as the payment agreement is attached to the bond proceeding form and the agreement meets the requirements set forth in section 38-53-170(e).

We understand your clerk of court interprets the language allowing a bondsman to enter into a payment agreement as applying only to the premium charge that exceeds the required ten percent minimum, but reading that statute in this way could lead to an absurd result. In construing statutes courts “will reject an interpretation when such an interpretation leads to an absurd result that could not have been intended by the legislature.” Lancaster Cnty. Bar Ass’n v. S.C. Comm’n on Indigent Def., 380 S.C. 219, 222, 670 S.E.2d 371, 373 (2008). First, we are at a loss as to why the Legislature would find it necessary to give permission for a payment agreement for an amount that the bondman is not required to charge in the first place. Second, this reading would require the principal to pay not only the ten percent bond up front, but also an additional one hundred dollars for the opportunity to finance the premium in excess of the ten percent. We do not believe such an interpretation is in line with the intent of the Legislature.

Moreover, the legislative history of the amendments to section 38-53-170(e) supports our interpretation. As our court of appeals explained, “The construing court may additionally look to the legislative history when determining the legislative intent.” Ex parte Cannon, 385 S.C. 643, 655, 685 S.E.2d 814, 821 (Ct. App. 2009). In our review of the legislative history, the amendments to section 38-53-170(e) were first proposed to the Senate’s version of the act. 2023 Senate Journal April 11, 2023, p. 26. While this version also required the payment and collection of a minimum fee of one hundred dollars or ten percent of the bond, whichever is greater, the language allowing for a payment agreement required a down payment of one hundred dollars or five percent of the bond. Id. If the ability to enter into a payment agreement only applies to the premium charged above the ten percent minimum, by requiring an additional five percent of the bond as the minimum down payment would leave nothing left to finance as the maximum premium is fifteen percent. Thus, we believe the legislative history supports our conclusion that the Legislature intended to allow bondmen to enter into payment agreements for the ten percent minimum premium rather than for the excess premium they are allowed to charge.

The Honorable B. Lee Miller
Page 4
June 17, 2024

Lastly, we must keep in mind that the South Carolina Constitution affords defendants the right to bail. S.C. Const. Art. I § 15 (2009). As our Supreme Court stated, “‘all statutes are presumed constitutional and, if possible, will be construed to render them valid.’” State v. Neuman, 384 S.C. 395, 402, 683 S.E.2d 268, 271 (2009) (quoting Curtis v. State, 345 S.C. 557, 569, 549 S.E.2d 591, 597 (2001)). While the revisions to section 38-53-170(e) indicate the intent of the Legislature to increase the premium charged and paid by defendants, we believe by giving defendants the ability to enter into a payment agreement with the bondsman, the Legislature is balancing its desire to increase and standardize premiums with defendants’ ability to pay those premiums and ensuring compliance with defendants’ constitutional rights. Accordingly, we believe our interpretation of section 38-53-170(e) lends itself to a constitutional reading of the statute.

Conclusion

As you mentioned in your letter, in 2023 the Legislature enacted bond reform legislation including amendments to section 38-53-170, which prohibits certain acts by bondsmen and runners. Specifically, section 38-53-170(e) governs the premiums bondsmen and runners charge. The amendments to this provision now require all bondsmen and runners to charge and collect a minimum fee of one hundred dollars or ten percent of the bond, whichever is greater. This change indicates the Legislature’s intent to increase and standardize the premiums charged and collected by bondsmen. Nonetheless, reading section 38-53-170(e) as a whole, we agree with your interpretation that it allows a bondsman to accept a minimum downpayment of one hundred dollars along with a payment agreement for the remaining amount of the minimum premium as long as the bondsman attaches the agreement to the bond processing form and complies with the other requirements for the agreement contained in section 38-53-170(e). We believe this interpretation comports not only with the intent of the Legislature based on the plain language of statute and its legislative history, but also balances the desire of the Legislature to provide more oversight over bond premiums with defendants’ constitutional rights to bail.

Sincerely,

Cydney Milling ~
Assistant Attorney General

REVIEWED AND APPROVED BY:

PED COVE
Robert D. Cook
Solicitor General