Attorneys for Appellant
Attorney for Appellees
Steve Carter Dane L. Tubergen
Attorney General of Indiana Fort Wayne, Indiana
Christopher L. Lafuse
Deputy Attorney General of Indiana
On Petition To Transfer from the Indiana Court of Appeals, No. 21A04-0302-CR-94
June 29, 2004
However, the defendants in each of these nine cases failed to appear in
the Fayette Superior Court at some point in their respective proceedings when required.
Their failure to appear implicates the two statutes that are at the
heart of this dispute. The first, Indiana Code § 27-10-2-8 (1998) (Section
(a) The court shall give the bail agent or insurer legal notice of the defendants trial or hearing at least seventy-two (72) hours before the defendants appearance is required unless the appearance is scheduled within seventy-two (72) hours from the execution of the bond.
(b) The defendants failure to appear constitutes a breach of the undertaking.
The court before which the cause is pending shall make a record of
the breach at which time section 12 of this chapter then applies.
The second, Indiana Code § 27-10-2-12 (1998) (Section 12), provides:
(a) If a defendant does not appear as provided in the bond:
(1) the court shall:
(A) issue a warrant for the defendants arrest; and
(B) order the bail agent and the surety to surrender the defendant to
the court immediately;
(2) the clerk shall mail notice of the order to both:
(A) the bail agent; and
(B) the surety;
* * *
(b) The bail agent or surety must:
(1) produce the defendant; or
(2) prove within three hundred sixty-five (365) days:
(A) that the appearance of the defendant was prevented:
(i) by the defendants illness or death;
(ii) because the defendant was at the scheduled time of appearance or currently
is in the custody of the United States, a state, or a political
subdivision of the United States or a state; or
(iii) because the notice required was not given; and
(B) the defendants absence was not with the consent or connivance of the
(c) If the bail agent or surety does not comply with the terms
of subsection (b) within one hundred twenty (120) days after the mailing of
the notice required under subsection (a)(2), a late surrender fee shall be assessed
against the bail agent or surety [pursuant to the provisions of the statute].
Section 8(b) defines a breach of a bail agent or suretys undertaking. If there is a breach, that sets in motion the process under Section 12, whereby a bail agent or surety can be assessed late surrender fees and can be required to forfeit the bond. See Lake County, 766 N.E.2d at 710; Accredited Sur. & Cas. Co. v. State, 565 N.E.2d 1131, 1132 (Ind. Ct. App. 1991). Once the clerk mails notice to the bail agent and surety that a defendant has failed to appear, the bail agent or surety has 365 days to produce the defendant or show good cause why either has not, as set out in Section 12(b)(2). One hundred twenty days after notice, however, late surrender fees begin to be assessed against the bail agent or surety. I.C. § 27-10-2-12(c). The late fees must be paid when the bail agent or surety produces the defendant or after the expiration of 365 days, whichever happens first. Id.
The amount of late surrender fees assessed depends on when the bail agent
or surety produces the defendant, and the amount ranges from 20% of the
face value of the bond after 120 days to 80% of the face
value of the bond after 240 days. Id. Although the surety
can be released from the bond if the defendant is produced within 365
days, the practical effect of assessing late surrender fees seems to be to
reduce the amount of money the surety is entitled to have returned to
it. If the defendant is not produced within 365 days, then the
court will order forfeited an amount equal to 20% of the face value
of the bond. This amount will not be returned to the surety.
As noted, each of these nine defendants were granted bail but failed to appear when required. The record does not reflect whether the bail agents or sureties were notified of the date and time for which the defendants were scheduled to appear. In each such instance, the court issued a warrant for the re-arrest of the defendant and notified the bail agent and surety See footnote of the defendants failure to appear and order for re-arrest.
In each case, after a defendant finally appeared or 365 days had expired, the clerk of the court assessed late fees against the sureties pursuant to the statute. The sureties made motions to vacate the imposition of late surrender fees and to be released from any obligation on the bonds, claiming the fees were imposed without court order, the late fees were not incurred or due, and the bail bonds had expired. The court held a hearing and later granted the sureties motions. The trial court cited the three reasons given by the sureties as its rationale for vacating the late surrender fees and releasing the sureties. The State appealed the courts order.
The Court of Appeals ruled against the State and affirmed the trial court.
State v. Boles, 792 N.E.2d 553, 554 (Ind. Ct. App. 2003).
The court held that notice under Section 8(a), which the sureties did not
receive, was required before late surrender fees could be imposed. Id. at
558-59. The court also held that the clerk of the court lacks
authority to impose late surrender fees under both the bail statute and the
Indiana Constitution. Id. at 559-60. We granted transfer, 804 N.E.2d 760
(Ind. 2003) (table), and we now reverse the trial court.
Before 1985, Indiana bail law explicitly conditioned a breach of a bail agent
or suretys undertaking on notice having been given to the bail agent or
surety. The Bail Act of 1961 read:
If there is a breach of the undertaking, the court before which the
cause is pending shall make a record thereof and shall declare the undertaking,
and any money or bonds that have been deposited as bail, forfeited: Provided,
however, the bail bondsman or the insurer shall have had legal notice of
the trial or hearing of defendant at least seventy-two  hours before required
appearance of defendant, unless the appearance is scheduled within that time from the
execution of bond.
Ind. Code § 35-4-5-8 (1975) (emphasis added).
When this statute was in place, forfeiture was automatic. Id.; Ind. Code
§ 35-4-5-10 (1975); Ind. Code § 35-4-5-12 (1975). The law provided that
[i]n case the defendant shall not appear as provided in the bond, the
court shall thereupon declare the bond forfeited . . . . I.C.
§ 35-4-5-12. Because such a drastic measure was taken against the bail
agent or surety when a defendant did not appear, it was important that
the bail agent or surety have notice of a defendants appearance date before
either could be held to have breached its undertaking.
In 1985, this structure was changed with a new bail statute. See
P.L. 261-1985, § 1. Section 8 was added in substantially similar form
to that in effect today. It is also similar to the Bail
Act of 1961, except for the important fact that the conditional language was
removed. Rules of statutory construction suggest that this change matters. We
have stated on numerous occasions that A fundamental rule of statutory construction is
that an amendment changing a prior statute indicates a legislative intention that the
meaning of the statute has changed. United Natl Ins. Co. v. DePrizio,
705 N.E.2d 455, 460 (Ind. 1999); accord Gingerich v. State, 228 Ind. 440,
445 (Ind. 1950); Chism v. State, 203 Ind. 241, 244 (Ind. 1932); Sec.
Trust Corp. v. Estate of Fisher, 797 N.E.2d 789, 793 (Ind. Ct. App.
2003); trans. denied, 2004 Ind. LEXIS 179 (Ind. Feb. 24, 2004). We
have also relied on a rule of statutory construction to the effect that
when language from an earlier version of a statute is deleted, the Legislature
intended to change the law by removing that language. Joe v. Lebow,
670 N.E.2d 9, 19 (Ind. Ct. App. 1996); Frey v. Review Bd. of
Ind. Employment Sec. Div., 446 N.E.2d 1341, 1344 (Ind. Ct. App. 1983).
At the same time that Section 8 was changed, Section 12 was added
and it eliminated provisions making forfeiture automatic. See P.L. 261-1985, § 1.
The 1985 version of Section 12 gave bondsman 90 days to produce
the defendant or prove certain facts before late surrender fees were assessed.
P.L. 261-1985, § 12, c.2, s.12. After 210 days, if the bondsman
did not comply, part of the bond was forfeited. Id. Unlike
under the previous bail law, under Section 12, a breach of the bail
agent and suretys undertaking did not result in automatic forfeiture of the bond.
The breach started the clock running for the imposition of late surrender
fees and ultimately forfeiture, but nothing happened at the moment of the breach.
This is true under the current Section 12. What is important
here is that the conditional language of Section 8 was removed at the
same time that the law was changed so that forfeiture was no longer
automatic. These simultaneous changes in the bail law indicate to us that
the Legislature does not intend Section 8(a) notice to be a condition precedent
to a breach of the undertaking.
This construction does not render the section a nullity, as the sureties contend.
It sets out the ideal procedure to be followed but recognizes the
practical difficulties of having to provide notice every time a defendant has a
trial or hearing date. Moreover, industry practice supports this view. Counsel
for the sureties stated at oral argument that most counties do not issue
notice to the bail agent or surety every time a defendant has a
trial or hearing date. He acknowledged that that would be very cumbersome
and extremely expensive. He also acknowledged that there are no practical consequences
for failure to receive a Section 8 notice and nothing would be different
if Section 8 were repealed, except that it begins the running of the
time period in which the bail agent or surety must comply with Section
We find that the change in the statutory language and the deletion of
the conditional language was intended to make the two provisions of Section 8
independent of one another. Under Section 8(a), notice must be provided, but
that notice does not affect whether there is a breach under Section 8(b).
The trial courts failure to provide Section 8(a) notice to the bail
agents or sureties of the defendants appearance dates therefore is not a defense
to the imposition of late surrender fees or forfeiture.
Turning first to the sureties argument that such action by the clerk was
not authorized under the bail statute, we find Section 12 instructive. The
language of Section 12 differs between the provision relating to late surrender fees
and that relating to forfeiture. Section 12(c) states that a late surrender
fee shall be assessed against the bail agent or surety. I.C. §
27-10-2-12(c) (emphasis added). It makes no reference to judicial action. In
contrast, Section 12(d) states that the court shall declare forfeited an amount equal
to 20% of the face value of the bond. I.C. § 27-10-2-12(d)
(emphasis added). It specifically requires judicial action for forfeiture. We find
that this difference in treatment indicates the Legislatures intent that assessment of late
surrender fees does not require explicit judicial action whereas forfeiture can only occur
upon a declaration thereof by the court.
In finding that the clerk lacks authority to assess late surrender fees, the
Court of Appeals found the following sentence in Section 12(e) of consequence: Proceedings
relative to the bond, forfeiture of a bond, judgment on the forfeiture, execution
of judgment, or stay of proceedings shall be in the court in which
the bond was posted. I.C. § 27-10-2-12(e). But this subsection does
not prescribe when proceedings are required. It dictates only that if there
are such proceedings, they are to be held in the court in which
the bond at issue was posted, as opposed to permitting collateral attack in,
for example, the court where the criminal proceedings are actually held. This
interpretation is supported by the preceding Section 12(d), which states as to forfeiture,
the court shall enter the judgment . . . without pleadings and without
change of judge or change of venue. I.C. § 27-10-2-12(d).
The sureties also rely on language of Section 12(e) that provides that [c]osts
and late surrender fee[s] assessed against a bail agent or surety under subsection
(c) shall be satisfied without further order of the court as provided in
subsection (f). I.C. § 27-10-2-12(e). They argue that the phrase without
further order of the court implies that there was . . . an
actual order of the court in the first place. (Br. in Resp.
to Pet. to Transfer at 11.) This interpretation is incorrect. In
fact, the language in Section 12(e) relates to the satisfaction of costs and
fees assessed against a bail agent or surety. Section 12(f) provides that
if the insurer does not pay costs and fees as assessed, the Commissioner
of the Department of Insurance will pay them after receiving notice from the
clerk of the court. The Section 12(e) language, then, means that after
receiving notice from the clerk, the Commissioner is required to make the payments
without having to be ordered to do so by the court. It
is not relevant to the issue of the clerks authority to assess late
Finally, both the Court of Appeals and the sureties have pointed to Lake
County, 766 N.E.2d at 710, which, in describing the statute, said if the
bail agent or surety does not comply . . . then the court
shall assess a late surrender fee. In that case, however, the question
of who could actually assess the fees was not in issue. Court
often refers generally not only to the judge but also to those who
carry out its ministerial functions. The reference in Lake County should be
understood in that context.
We find that Section 12 does not prohibit the clerk of the court
from assessing late surrender fees.
Article VII, § 1, of the Indiana Constitution also does not prohibit the
clerk from assessing late surrender fees. From time to time, we have
been called upon to distinguish between those acts which our State Constitution requires
to be performed by judges and those which can be performed on behalf
of the court by others. See, e.g., Floyd v. State, 650 N.E.2d
28 (Ind. 1994); State ex rel. Smith v. Starke Circuit Court, 275 Ind.
483, 417 N.E.2d 1115 (1981); Shoultz v. McPheeters, 79 Ind. 373 (1881).
The statutory provision for assessing late surrender fees is self-executing; no judicial act
is necessary. The fees are imposed by operation of law, and the
clerk performs the ministerial task of assessing those fees as set out in
the statute. The Constitution does not prohibit this.
The only statutory authority for a trial court to vacate late surrender fees
is contained in Indiana Code § 27-10-2-12(e).
See footnote It states in relevant part:
The court may waive the late surrender fee . . . if the following conditions are met:
(1) A written request is filed with the court and the pros
(2) The surety or bail agent provides evidence satisfactory to the court that
diligent efforts were made to locate the defendant.
In vacating the late surrender fees and releasing the sureties, the trial court stated as its rationale that the late surrender fees were imposed without order or authorization of the Court, that the late surrender fees were not due under Indiana law, and the imposition of those fees should be vacated, and that the bail bond in this cause has expired and should be released. (E.g., Appellants App. at 33.)
These are not proper grounds for vacating late surrender fees under the statute.
Additionally, as earlier stated, late surrender fees can be assessed without a
court order. And, according to the records, it certainly appears that late
surrender fees were due under the law. We therefore remand these cases
to the trial court to rule on the motions to vacate the late
surrender fees in a manner consistent with this opinion. No question is
raised as to the release of the sureties and we do not address