TITLE 17 CRIMINAL PROCEDURE

Section 6. Bonds and Recognizances, 17-6-1 through 17-6-114.

ARTICLE 1 GENERAL PROVISIONS

17-6-15. Necessity for commitment where bail tendered and accepted; opportunity for bail; receipt of bail after commitment and imprisonment; imprisonment of person who offers bond for amount of bail set; effect upon common-law authority of court.

After arrest, if bail is tendered and accepted, no regular commitment need be entered, but a simple memorandum of the fact of bail being taken shall be sufficient.
1. A reasonable opportunity shall be allowed the accused person to give bail; and, even after commitment and imprisonment, the committing court may order the accused person brought before it to receive bail. No person shall be imprisoned under a felony commitment when bail has been fixed, if the person tenders and offers to give bond in the amount fixed, with sureties acceptable to the sheriff of the county in which the alleged offense occurred; provided, however, the sheriff shall publish and make available written rules and regulations defining acceptable sureties and prescribing under what conditions sureties may be accepted.If the sheriff determines that a professional bonding company is an acceptable surety, the rules and regulations shall require, but shall not be limited to, the following:
  1. Complete documentation showing the composition of the company to be an individual, a trust, or a group of individuals, whether or not formed as a partnership or other legal entity, or a corporation or a combination of individuals, trusts, and corporations;
  2. Complete documentation for all employees, agents, or individuals authorized to sign or act on behalf of the bonding company;
  3. Complete documentation showing that the company holds a valid business license in the jurisdiction where bonds will be written;
  4. Fingerprints and background checks of every individual who acts as a professional bondsperson as defined in Code Section 17-6-50 for the professional bonding company seeking approval;
  5. Establishment of a cash escrow account or other form of collateral as follows:
    1. For any professional bonding company that is new to the county or that has operated continuously in the county for less than 18 months, in an amount and upon terms and conditions as determined and approved by the sheriff;
    2. Once a professional bonding company has operated continuously for 18 months or longer in the county, then any such cash escrow account or other form of collateral shall not exceed 10 percent of the current outstanding bail bond liability of the professional bonding company; and
    3. No professional bonding company shall purchase an insurance policy in lieu of establishing a cash escrow account or posting other collateral; provided, however, that any professional bonding company which was using an insurance policy as collateral as of December 31, 2013, may continue to do so at the discretion of the sheriff.
  6. Establishment of application, approval, and reporting procedures for the professional bonding company deemed appropriate by the sheriff which satisfy all rules and regulations required by the laws of this state and the rules and regulations established by the sheriff;
  7. Applicable fees to be paid by the applicant to cover the cost of copying the rules and regulations and processing and investigating all applications and all other costs relating thereto; or
  8. Additional criteria and requirements for approving and regulating bonding companies to be determined at the discretion of the sheriff.
2. This Code section shall not be construed to require a sheriff to accept a professional bonding company or bondsperson as a surety.
3. This Code section shall not be construed to prevent the posting of real property bonds and the sheriff may not prohibit the posting of property bonds.Additional requirements for the use of real property may be determined at the discretion of the sheriff.The sheriff shall not prohibit a nonresident of the county from posting a real property bond if such real property is located in the county in which it is offered as bond and if such property has sufficient unencumbered equity to satisfy the sheriff's posted rules and regulations as to acceptable sureties.
This Code section shall not abrogate or repeal the common-law authority of the judge having jurisdiction.

(Orig. Code 1863, § 4620; Code 1868, § 4644; Code 1873, § 4742; Code 1882, § 4742; Penal Code 1895, § 922; Penal Code 1910, § 947; Code 1933, § 27-418; Ga. L. 1977, p. 346, § 1; Ga. L. 1994, p. 532, § 2; Ga. L. 2014, p. 444, § 3-1/HB 271.)

The 2014 amendment, effective July 1, 2014, in subparagraph (b)(1)(E), substituted "collateral as follows:" for "collateral in a sum and upon terms and conditions approved by the sheriff;" and added divisions (b)(1)(E)(i) through (b)(1)(E)(iii).

JUDICIAL DECISIONS

Factors considered in setting bail.

- Many factors are to be considered in fixing bail, some of which are the ability of the defendant to give bail, the seriousness of the offense, penalty, character and reputation of the accused, health, probability of the defendant appearing to serve sentence, forfeiture of other bonds, and whether a fugitive. Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970).

Principal factor is probability that accused will appear.

- In setting the amount of bail, the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of the accused's flight to avoid punishment. Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970).

Authority to accept sureties in felony cases.

- This section placed the authority to accept sureties in felony cases in the office of the sheriff and not in the superior court. Jarvis v. J & J Bonding Co., 239 Ga. 213, 236 S.E.2d 370 (1977).

Sovereign immunity.

- Use of O.C.G.A. § 17-6-15 to determine the acceptability of a surety involves discretionary function and is therefore protected by sovereign immunity. Washington v. Jefferson County, 221 Ga. App. 81, 470 S.E.2d 714 (1996).

Discretion of sheriff in approval of sureties.

- This section placed the approval of sureties on misdemeanor bonds in the sheriff's discretion. Jarvis v. J & J Bonding Co., 239 Ga. 213, 236 S.E.2d 370 (1977).

Applicants for a certificate to operate as a bail bond company failed to state a procedural due process violation under O.C.G.A. §§ 17-6-15 and17-6-50 because Georgia law gave the sheriffs broad discretion to determine who was an acceptable surety to write bonds in the sheriffs' respective counties and the provisions did not require a sheriff to accept any specific applicant. A.A.A. Always Open Bail Bonds, Inc. v. Dekalb County, F.3d (11th Cir. Apr. 19, 2005).

Discretion of trial judge.

- Amount of bail to be assessed in each criminal case is left to the sound discretion of the trial judge and in the absence of clear abuse of such discretionary power, the judge's action will not be controlled. Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970).

Acceptance of bond by sheriff.

- While the face of the bond bore the signature of the sheriff of Clayton County rather than that of the sheriff of Floyd County, the sheriff of Floyd County testified at the forfeiture hearing that the sheriff relied upon the bond to release the defendant from custody and that a second bond was just "extra security." The sheriff's testimony made it clear that the sheriff did accept and approve the first bond. Osborne Bonding Co. v. Harris, 183 Ga. App. 764, 360 S.E.2d 32, cert. denied, 183 Ga. App. 906, 360 S.E.2d 32 (1987).

Accepting bond on Sunday.

- To take a bond on Sunday, admitting a prisoner to bail is lawful. Weldon v. Colquitt, 62 Ga. 449, 35 Am. R. 128 (1879).

Authority of arresting officer to accept bond from felon.

- Arresting officer has no authority to accept bond from one arrested under a warrant for a felony, but should return the party arrested to the county in which the crime was alleged to have been committed for examination before a judicial officer of that county and the fixing of bail by such officer in case of commitment. Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947).

Cited in Fox v. State, 34 Ga. App. 74, 128 S.E. 222 (1924); Johnson v. Aldredge, 192 Ga. 209, 14 S.E.2d 757 (1941); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Authority of sheriff to approve sureties.

- Effect of this section was to provide the sheriff with the statutory authority to approve or reject the surety on a criminal bail bond in a felony case. That section eliminates the need for that authority to be judicially delegated. 1977 Op. Att'y Gen. No. U77-29.

Disposition of interest accrued on cash bond.

- County may not pay to a bondsman the interest accrued on a cash bond during the time the bond is held as assurance of a defendant's appearance at trial; upon timely appearance by the defendant, the bondsman is entitled to no more than the amount of the bond. 1986 Op. Att'y Gen. No. U86-39.

RESEARCH REFERENCES

Am. Jur. 2d.

- 8A Am. Jur. 2d, Bail and Recognizance, §§ 1 et seq., 101 et seq.

C.J.S.

- 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 21, 24, 27, 33, 34.

ALR.

- Necessity of reference in bail bond to specific crime, 103 A.L.R. 535.

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