Increased Bail, Earned Premium, and Refusal to Post Additional Security
A family pays a $10,000 premium to a bondsman for a $100,000 surety bond for a defendant charged with burglary. The premium receipt states it is 'fully earned upon execution.' Two weeks later, the court holds a bail review hearing after the defendant is charged with witness intimidation. The judge increases bail to $150,000. The bondsman tells the family he needs an additional $5,000 premium and $50,000 more in collateral to post the increased bond. The family refuses and asks for the original $10,000 back. The defendant remains in custody because he cannot meet the new bail. The bondsman has not yet surrendered the original bond or filed anything with the court.
1. Is the original $10,000 premium refundable when the court increases bail and the family refuses to post additional security?
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Generally, no. A bail premium is earned when the bond is executed and the surety assumes the risk. The receipt states that the premium is fully earned upon execution, and that language is consistent with the usual bail contract: the bondsman and surety are paid for putting their credit at risk, not for guaranteeing that the defendant will remain free on the same terms for the entire case.
However, the analysis is not purely contractual. The bondsman should consider:
- What risk was actually assumed. The original bond was $100,000. If the court later increases bail to $150,000, the original surety's liability may be limited to the original amount unless the bondsman agrees to post additional security. The premium for the original risk is still earned.
- Whether the bond was exonerated. If the defendant is in custody and the original bond is surrendered or exonerated, the surety's risk ends. That does not retroactively make the premium refundable.
- Consumer-protection concerns. If the bondsman misrepresented the premium as refundable, or if no bond was ever posted, the family may have a refund claim. Here, a bond was posted, so the general rule applies.
The bondsman should explain in writing why the premium is earned and provide a copy of the receipt and contract. A voluntary partial refund is a business decision, not a legal obligation.
2. What should the bondsman do about the original bond now that the defendant is in custody and the family refuses additional collateral?
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The bondsman should not leave the original bond in limbo. The surety's liability on the $100,000 bond continues unless the bond is exonerated or surrendered. Because the defendant is already in custody on the increased bail, the bondsman should:
- Confirm the custody status with the jail and the court. Obtain written verification that the defendant is incarcerated and cannot be released on the original bond.
- File a written request for exoneration of the original bond, attaching proof of custody. If the defendant is in custody on the same case, the purpose of the original bond is satisfied or superseded by the new bail order.
- Notify the court and district attorney that the bondsman will not post the increased amount and that the original bond should be exonerated.
- Send written notice to the family explaining that the original bond is being surrendered or exonerated and that the premium is earned.
- Account for collateral. If the family posted collateral for the original bond, return it after the court confirms exoneration, less any amounts actually owed.
The bondsman should not simply abandon the file. If the court later claims the original bond remains in force, the bondsman needs proof that he promptly sought exoneration after the defendant was taken into custody.
3. Can the bondsman charge an additional $5,000 premium for the increased $50,000 bail? What must he disclose?
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The bondsman may negotiate a new premium for the additional $50,000 of risk, but only if the family agrees and the charge complies with applicable rate and disclosure requirements. The additional premium is not automatic. The bondsman should:
- Provide a separate written agreement or addendum identifying the new bond amount, the additional premium, and the additional collateral required.
- Explain that the original $10,000 premium covered the original $100,000 bond and does not cover the increased exposure.
- Disclose all fees, including any charges for filing, monitoring, or collateral handling.
- Give the family a reasonable opportunity to accept or decline. If they decline, the bondsman should not post the increased bond.
- Avoid pressure tactics. The family is already under stress, and the defendant is in custody; the bondsman should not imply that the original premium will be forfeited unless the additional amount is paid.
If the bondsman posts the additional $50,000 without a signed agreement, he may have difficulty collecting the additional premium or collateral later. The file should contain the signed addendum, the receipt, and a clear statement of what the additional premium buys.