AGO 07-167.

• Case Date: December 12, 2007
• Court: South Carolina

South Carolina Attorney General Opinions 2007. AGO 07-167. OPINION NO. 07-167December 12, 2007Larry W. Powers, Jail DirectorSpartanburg County Detention Facility 950 California Avenue Spartanburg, South Carolina 29303-2184 Dear Mr. Powers: In a letter to this office you raised several questions relating to a local jail's responsibility related to the surrender of a defendant into its custody by a bail bondsman. In your first question you referenced the provisions of S.C. Code Ann. § 38-53-50 which state

(A) A surety desiring to be relieved on a bond for "good cause" or the nonpayment of fees shall file with the court a motion to be relieved on the bond. A copy of the motion must be served upon the defendant, his attorney, and the solicitor's office. The court shall then schedule a hearing to determine if the surety should be relieved on the bond and advise all parties of the hearing date.

(B) If the circumstances warrant immediate incarceration of the defendant to prevent imminent violation of any one of the specific terms of the bail bond, or if the defendant has violated any one of the specific terms of the bond, the surety may take the defendant to the appropriate detention facility for holding until the court orders that the surety be relieved. The surety must immediately file with the detention facility and the court an affidavit stating the facts to support the surrender of the defendant for good cause or the nonpayment of fees. When the affidavit is filed with the court, the surety must also file a motion to be relieved on the bond pursuant to subsection (A). A surety who surrenders a defendant and files an affidavit which does not show good cause or the nonpayment of fees is subject to penalties imposed for perjury as provided for in Article 1, Chapter 9 of Title 16.

(C) After the surety has been relieved by order of the court, a new undertaking must be filed with the appropriate court in order to secure the re-release of the defendant. The undertaking must contain the same conditions included in the original bond unless the conditions have been changed by the court. (emphasis added).

S.C. Code Ann. § 38-53-60 provides that

For the purpose of surrendering the defendant, the surety may arrest him before the forfeiture of the undertaking or, by his written authority endorsed on a certified copy of the

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