Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 30,2004

The Honorable Cecil L. Solomon Opinion No. GA-0288

Franklin County Attorney

200 North Kaufman Re: Whether a sheriff in a non-bail bond board

Mount Vernon, Texas 75457 county must accept a bail bond signed by an

individual surety’s attorney-in-fact (RQ-0246-GA)

Dear Mr. Solomon:

You ask whether a sheriff in a non-bail bond board county must accept a bail bond signed

by an individual surety’s attorney-in-fact.’ You also ask two related questions about the effect of a

bail bond signed by an individual surety’s attorney-in-fact. See Request Letter, supra note 1, at 2.

I. Legal Background: Takiie Bail Bonds under Chapter 17 of the Criminal Code of

Procedure

Chapter 1704 of the Occupations Code provides for bail bond boards to regulate bail bond

sureties in counties with a population of 110,000 or more or counties that have established a board.

See TEX. Oct. CODE ANN. $4 1704.05 l-.052 (Vernon 2004). In non-bail bond board counties, bail

bond sureties are not regulated under chapter 1704. Rather, in a county without a bail bond board,

the taking of bail bonds is generally governed by chapter 17 of the Code of Criminal Procedure. See

id. 5 1704.002; see also Castaneda v.Gonzalez, 985 S.W.2d 500, 503 (Tex. App.-Corpus Christi

1988, no writ) (holding that in a county where no bail bond board has been created, chapter 17 of

the Code of Criminal Procedure controls the taking ofbail bonds). As chapter 17 governs the taking

of bail bonds in your c~unty,~ we examine its provisions in some detail.

While chapter 1704 ofthe Occupations Code provides for the licensing ofbail bond sureties

and requires a sheriff to accept bail bonds executed by license holders, see TEx. OCC. CODE ANN.

5 1704.201 (Vernon 2004), chapter 17 of the Code of Criminal Procedure establishes very few

‘See Letter from Honorable Cecil L. Solomon, Franklin County Attorney, to Honorable Greg Abbott, Texas

Attorney General (July 9, 2004) (on file with Opinion Committee, also available of http://m.oag.state.tx.us)

[hereinafterRequest Letter].

‘You state that FranWin,County’spopulation is less than 110,000and that Franklin County has not elected to

establish a bail bond board. See id. at 1; see also Bureau of the Census, U.S. Dep’t of Commerce, 2000 Census of

Population, available at http://www.cemus.gov/ (population of Franklin County: 9,458).

The Honorable Cecil L. Solomon - Page 2 (GA-0288)

qualifications for a person to act as an individual surety. An individual acting as surety must be

a Texas resident and offer sufficient security. See TEX. CODEGRIM.PROC.ANN. art. 17.11, 9 1

(Vernon 1977). An individual is disqualified to act as surety on a bond if in default on a prior bond,

“so long as he is in default on said bond.” Id. art. 17.11, 4 2 (Vernon Supp. 2004-05).

Most ofthe case law and attorney general opinions addressing the authority of offricerstaking

bail bonds under chapter 17 deal with assessing an individual surety’s security. Chapter 17

authorizes any “court, judge, magistrate, or other officer” taking a bail bond to “require evidence of

the sufficiency of the security offered.” Id, art. 17.11, 5 1 (Vernon 1977). The sufficiency of the

security offered by a surety is governed by articles 17.11 through 17.14. Article 17.11 provides that

“one surety shall be sufficient if such surety is worth at least double the amount ofthe sum for which

he is bound, exclusive of all property exempted by law from execution, and of debts or other

encumbrances; and that he is a resident of this state, and has property therein liable to execution

worth the sum for which he is bound.” Id. The offker taking the bail bond may require an affidavit

attesting to the surety’s worth. See id. art. 17.13. Article 17.14 provides that the officer may require

further evidence “if the . ofticer taking the bail bond is not fully satisfied as to the sufficiency of

the security offered.” Id. art. 17.14.

While articles 17.11 through 17.14 give an officer taking a bail bond broad discretion to

determine whether the security offered by a surety is sufficient, see Tex. Att’y Gen. Gp. No. DM-483

(1998) at 6 (concluding that Code of Criminal Procedure articles 17.11, 17.13, and 17.14 authorize

a sheriff taking a bail bond to consider other bonds executed by the surety), “chapter 17 does not

require a person to obtain a license to be eligible to act as a surety nor does it authorize an officer

taking a bond to require a surety to be licensed,” Tex. Att’y Gen. LO-98-105, at 2-3. Furthermore,

the authority to assess the sufficiency of the security offered is vested in “[elvery court, judge,

magistrate or other officer taking a bail bond,“T~x. CODECR&~.PROC.ANN. art. 17.11,s 1 (Vernon

1977); see also id. arts. 17.20-.22 (provisions governing when apeace officer may set and take bail);

chapter 17 does not vest any special authority in the sheriff.

As a result, a court has expressly concluded that these Code ofCriminal Procedure provisions

do not authorize a sheriff to adopt rules imposing a licensing system for bail bond sureties a!& to

that set forth under chapter 1704 ofthe Occupations Code. See Castaneda v. Gonzalez, 985 S.W.2d

500 (Tex. App.-Corpus Christi 1998, no writ); see also Tex. Att’y Gen. LO-98-105. In the

Castaneda opinion, the court noted that “[i]n counties where a bail bond board exists, the board may

only adopt such rules as are authorized by and are consistent with statutory authority, and may not

adopt rules which impose additional burdens, conditions, or restrictions in excess of or inconsistent

with statutory provisions.” Castaneda, 985 S.W.2d at 504 (citing Ten Fire & Cas. Co. v. Harris

CountyBaiZBondBd., 684 S.W.2d 177,178 (Tex. App.-Houston [14tbDist.] 1984,writrefdn.r.e);

Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214,216 (Tex. Civ. App.-San Antonio 1980,

no writ)). An officer taking bail bonds under chapter 17 of the Code of Criminal Procedure “is

prohibited from adopting rules which exceed statutory authority in the same way bail bond boards”

governed by chapter 1704 of the Occupations Code are limited to adopting rules authorized by and

consistent with chapter 1704. Castaneda, 985 S.W.2d at 504.

The Honorable Cecil L. Solomon - Page 3 (GA-0288)

The Castaneda court concluded that the sheriffs authority to require evidence of the

sufticiencyofthe security offered bybondsmenunder articles 17.11 and 17.14 authorizedthe sheriff

to require bondsmen to fill out an application form. See id. at 503. However, the sheriff lacked

authority to impose substantive requirements not authorized by articles 17.11 and 17.14. Thus, the

sheriff could not require bondsmen “to accept suspension of their authority to write bonds when in

litigation concerning forfeitures and [to] agree to indemnity the Sheriff for expenses and attorney

fees in any litigation with him,” nor could the sheriff require bondsmen to pledge collateral. Id.

Your questions pertain not to a sheriffs authority to ascertain the sufficiency of an individual

surety’s security but rather to a sheriffs authority with respect to a bond’s form. Article 17.08,

entitled “Requisites of a Bail Bond,” provides that “[a] bail bond must contain the following

requisites,” including among other things, “[tlhat it be made payable to ‘The State of Texas,“’ that

the defendant and sureties “bind themselves that the defendant will appear before the proper court

or magistrate to answer the accusation against him,” and “[tlhat the bond be signed by name or mark

by the principal and sureties, if any, each of whom shall write thereon his mailing address.” ‘fEX.

CODE GRIM. PROC. ANN.art. 17.08(l)-(2), (4) (Vernon Supp. 2004-05). Legal authorities addressing

article 17.08 deal with forfeited bonds’ validity, and we have located no cases addressing the

authority of an officer taking a bail bond to ensure that a bond complies with article 17.08’s

requisites. However, we have no doubt that a court would conclude that such an officer is authorized

to require that a bond he or she takes comports with article 17.08’s requisites. See generalZy

Castaneda, 985 S.W.2d at 503 (holding that a sheriffs rule requiring bondsmen to till out an

application form was supported by the sheriffs authority under Code of Criminal Procedure, articles

17.11 and 17.14).

II. Analvsis

You explain that it has been the practice in your county “for certain individuals to qualify as

bondsmen by demonstrating the sufficiency of their security in the form of an affidavit.” Request

Letter, supra note 1, at 1. We gather that the individuals submit affidavits in advance of signing a

bond for a particular principal and that they are essentially prequalified to act as surety in the county.

After demonstrating the sufficiency of their security, “bondsmen then attempt to create an attomey-

in-fact by signing a power of attorney that authorizes another individual to write bonds on behalf of

the bondsman” and the agents “ma&e] bonds at the sheriffs department, either by signing their own

names or that of the surety for whom they work.” Id. However, the sheriff “has come to question

whether bonds made pursuant to this practice violate chapter 17 of the Texas Code of Criminal

Procedure” because the bonds “do not bear the signature of the surety.” Id.

Your first question is:

Must a Texas Sheriff in a non-bail bond board county accept a bond

from an attorney-in-fact for an individual surety (as distinguished

t?om a corporate surety) who has demonstrated that the surety has

sufficient security, but there has been no such showing for the

purported attorney-in-fact?

Id. at 1-2.

The Honorable Cecil L. Solomon - Page 4 (GA-0288)

Article 17.08, which establishes bail bond requisites, provides in pertinent part that a bail

bond must be “signed by name or mark by the principal and sureties, if any, each of whom shall

write thereon his mailing address.” TEX. CODECRIM. PROC. ANN.art. 17.08(4) (Vernon Supp. 2004-

05). This statute, in requiring that a bail bond be signed by name or mark by the surety, who must

also write his mailing address on the bond, clearly indicates that the surety must sign or mark the

bond personally. See id. (“the bond [must] be signed by name or mark by the principal and sureties,

if any, each ofwhom shall write thereon his mailing address”) (emphasis added). In addition, it is

clear t?om articles 17.11 through 17.14 that “surety” in article 17.08(4) means the person whose

security has been assessed and not any other person. See, e.g., id. arts. 17.11,s 1 (“one surety shall

be sufficient if such surety is worth at least double the amount of the sum for which he is bound”),

17.13 (providing that the oath for testing the sufficiency of the security offered for a bail bond shall

state, “I, do swear that I am worth, in my own right, at least the sum of. .“). Thus, by its plain

terms, article 17.08(4) authorizes an officer taking a bail bond to require that the bond be personally

signed (or marked) by the surety rather than by the surety’s attorney-in-fact on the surety’s behalf,

either by signing the surety’s name (or mark) or the attorney-in-fact’s name.

Furthermore, as you note, article 17.07 requires “[a]ny corporation authorized by the law of

this State to act as a surety’ to file with the county clerk a power of attorney designating and

authorizing “the named agent, agents, or attorney of such corporation to execute” bail bonds on its

behalf. Id. art. 17.07 (Vernon 1977). Because no provision in chapter 17 provides for individual

sureties to authorize agents to execute bail bonds on their behalf, individual sureties have no

statutory entitlement to have an attorney-in-fact sign bonds on their behalf.

Accordingly, we conclude that a sheriff is not required to accept a bail bond signed by the

surety’s attorney-in-fact on the surety’s behalf and may refirse to do so. This authority is based on

article 17.08 and is not affected by the fact that the surety may have demonstrated sufficient security.

Moreover, requiring a surety to sign personally a bond would be “authorized by and consistent

with statutory authority” and would not “impose additional burdens, conditions, or restrictions.”

Castaneda, 985 S.W.2d at 504 (holding that an officer taking bail bonds under chapter 17 of the

Code of Criminal Procedure is prohibited from adopting rules which exceed statutory authority in

the same way bail bond boards are limited to adopting rules authorized by and consistent with

chapter 1704 of the Occupations Code).

Next you ask two questions about the effect of a bail bond that has been signed by an

attorney-in-fact either in his own name on behalf of the surety or with the name of the surety:

What is the legal effect of a “bond” that an attorney-in-fact

signs with his own name under authority of an individual surety who

had demonstrated that the surety had sufficient security, but there was

not such showing for the purported attorney-in-fact?

What is the legal effect of a “bond” that an attorney-in-fact

signs with the name of an individual surety, where the surety has

The Honorable Cecil L. Solomon - Page 5 (GA-0288)

demonstrated that the surety had sufficient security, but the attomey-

in-fact has not demonstrated that his own security is sufficient?

Request Letter, supra note 1, at 2.

These questions relate to a bond’s subsequent enforceability against the surety rather than the

authority of an officer taking a bond to insist that the surety personally sign it. The article 17.08(4)

requirement that a bail bond be “signed by name or mark by the principal and sureties, if any,” TEX.

CODE GRIM. PROC. ANN. art. 17.08(4) (Vernon Supp. 2004-05), has been addressed by courts in

connection with challenges to bonds’ validity. Significantly, there are two lines of cases involving

the validity of a bond signed by a surety’s agent.

The first line of cases involves bonds signed by an attorney-in-fact in the attorney-in-fact’s

name. In 1935, the Texas Court of Criminal Appeals quashed an appearance bond on which the

names of the sureties “were signed by their attorney in fact, who it appears was duly authorized in

writing to execute bails bonds generally,” ExParteMeadows, 87 S.W.2d 254,254 (Tex. Crim. App.

1935), concluding that a predecessor provision to article 17.08(4) required that the signatures ofboth

the principal and sureties “be made in person,” id. (citing Walker v. State, 6. S.W.2d 356 (Tex. Crim.

App. 1928)); see also F%‘ilkins v. State, 91 S.W.2d 354 (Tex. Crim. App. 1936) (holding defective

an appeal bond not signed by two sureties, as required by law, but by one surety signing by attomey-

in-fact).’

In 1988, relying on the 1935 decision, the Austin Court of Appeals construed article 17.08(4)

to require “that the surety sign the bond personally, rather than permitting an attorney-in-fact for the

surety to sign the bond.” Tietz v. State, 744 S.W.2d 353,354 (Tex. App.-Austin 1988, no writ). In

that case, Tietz did business as A-A Bail Bonds, had entered into a written partnership agreement

with Chisolm, and had given her express written authority to execute bail bonds for the partnership.

See id. Chisohn had signed the bond at issue as “Vivian Chisolm, d/h/a A-A Bail Bonds.” Id. The

court concluded that because there was no evidence that Tietz had signed the bond, he could not be

held liable as surety. See id.; see also Scott v. State, 649 S.W.2d 354, 356 (Tex. App.-Eastland

‘In 1960, relying on EXPatie Meadows, this offke concluded that “a surety cannot be bound on a bail bond

where the surety’s name was not signed in person but was signed by a professional bondsman acting under a power of

attorney specifically authorizing the signing of surety bonds” and that a sheriff “should not accept” a bond from a

bondsman who wishes to sign the mm of another person under a power of attorney specifically authorizingtbe signing

of surety bonds. Tex. Att’y Gen. Op. No. WW-889 (1960) at 2.

In 1982,this offke considered whether the agent or employee of an individual licensed as a bondsmen under

the statutorypredecessor to chapter 1704ofthe OccupationsCode may execute bonds on the licensee’s behalf. Relying

on EXPark Meadows, this office concluded that while the licensing statute did not address the issue, article 17.08(4)

prohibitedthepractice. SeeTex.Att’yGen. Op.No.MW-507(1982); seealsoTex.Att’yGen. Op.No. JM-1023(1989)

(concluding that the statutorypredecessor to chapter 1704ofthe OccupationsCode did not authorize a county bail bond

board to grant more than one bail bond license to any person in part because when acting as a surety, an individual must

sign the bond personally). Chapter 1704 now expressly provides that an individual who executes a bail bond in a bail

bondboardcountymust be licensed. SeeT~x. OCC.CODEANN. $5 1704.001(2),(5) (Vemon2004) (deftig‘bail bond

surety”to include an individual who “executesa bail bond as a surety”or who “forcompensation deposits cash to ensure

the appearance in court of a person accused of a crime”), 1704.151(“a person may not act as a bail bond surety.

unless the person holds a license issued under this chapter”).

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1983, no writ) (concluding that “Eagle Bail Bond by Danny C. Morgan” stamped on a bond

complied with article 17.08(4), “[tlhere being no evidence that the use of the stamp was

unauthorized,” but holding that Scott and Bledsoe, offkers of the corporation doing business as

Eagle Bail Bond, whose names did not appear in the stamp or anywhere else on the bond, were not

liable on the bond).

The second line of cases, particularly two Texas Court of Criminal Appeals cases subsequent

to Ex Parte Meadows, address bail bonds signed with the surety’s name by another person. The first

case involved an attorney, who also operated a bail bond business, who had authorized his secretary

to notarize the signature of his name on three bail bonds, each of which had actually been signed by

his employee. See Greer v. State, 382 S.W.2d 481,482 (Tex. Crim. App. 1964). The attorney later

contended that he had not intended to authorize his signature on one of the bonds, but the court

concluded that the attorney had “adopted the signature purporting to be his on the bail bond” and that

he was bound by the bond. See id. at 483.

Similarly, in the second case, the court considered the validity of a bond bearing “the

apparent signature of. . . Zidell, written in ink as the surety.” Zidell v. State, 530 S.W.2d 577 (Tex.

Crim. App. 1975). Zidell had a business agreement withBrownlee and authorized Brownlee to sign

his name on bonds. See id. at 577-78. The lower court had concluded that under these

circumstances Zidell “had adopted his signature as signed by Brownlee as valid authentic.” Id. at

578. The court distinguished EXParte Meadows on the basis that that case involved a bond that was

“not signed by the surety but by his attorney in fact,” and following Greer, affirmed the lower court’s

holding that Zidell had adopted the signature purporting to be his own. Id.; see also Weddel v. State,

756 S.W.2d 76, 78 (Tex. App.-El Paso 1988, no writ) (bail bond business owner who permitted

employees to sign his name on bonds adopted the signatures and was bound by them) (citing Zidell);

Tex. Att’y Gen. Op. No. K-0121 (1999) at 3 (“An individual acts as a surety on a bail bond either

by signing it personally or, in certain circumstances, authorizing an agent to do so on his behalf.‘)

(citing article 17.08(4), Zidell, and Wedded)?

These Texas Court of Criminal Appeals cases subsequent to Ex Parte Meadows indicate that

when a surety authorizes an agent to sign the surety’s name to a bond, courts will hold a surety liable

on a bond even though the surety did not personally sign it.5 They do not address a bond signed by

an attorney-in-fact in the attorney-in-fact’s name. However, they suggest that courts now may be

‘Yoursuggestionthat AttorneyGeneralOpinionK-0121 construesarticle 17.08(4)to providethat an agent

may sign a bond on a surety’sbehalfmisreads the opinion. See Request Letter, sup’n note 1, at 3. The opinion does not

construethe statute,but merelyobserves,in generallydescribinga bail bond as a contractin whichthe countyhas an

interest,that an individualacts as a suretyon a bail bondeitherby signingit personally,as providedin the statute,or,

in certain circumstances, by authorizing an agent to do so on his behalf, citing Zidell and Weddel, recognizing that the

courtsin thosecasesconcludedthat the suretywasliable on the bond. See Tex. Att’y Gen. Op. No. JC-0121(1999)

at3.

To the extent Attorney General Opinion WW-889 suggests that a surety can never be bound by a bail bond

signedwiththe surety’snameby an attorney-in-fact,

it is inconsistentwithsubsequentTexasCourt of CriminalAppeals

cases. See Tex. Att’y Gen. Op. No. WW-889 (1960) at 2 (stating that “a surety c+mot be bound on a bail bond where

tix surety’sname was not signed in person but was signed by a professional bondsman acting under a power of attomey

specifically authorizing the signing of surety bonds”).

The Honorable Cecil L. Solomon - Page 7 (GA-0288)

less strict about the article 17.08(4) requirement in the bond forfeiture context and could hold an

individual liable on a bond signed with an attorney-in-fact’s name when the evidence establishes that

the individual intended third parties to rely on the attorney-in-fact’s authority to bind the individual

as a surety. But this will not be the outcome in every fact situation. See, e.g., Tietz, 744 S.W.2d 353

(1988 case holding that alleged surety whose name did not appear on the bond could not be held

liable on the bond); Scott, 649 S.W.2d at 356 (1983 case holding that Scott and Bledsoe, officers of

the corporation doing business as Eagle Bail Bond, whose names did not appear anywhere on the

bond, were not liable on the bond).

Thus, in answer to your specific questions, a court may conclude that a surety is liable on a

bond “an attorney-in-fact signs with the name of an individual surety’ or “an attorney-in-fact signs

with his own name under authority of an individual surety.” See Request Letter, supra note 1, at 2.

As the case law demonstrates, however, whether any particular bond is valid or binds the surety will

depend upon the facts.

Finally, we wish to emphasize that these cases involve bond forfeitures rather than the

authority of an officer taking a bail bond. None of these decisions suggests that an officer taking a

bail bond lacks authority under article 17.08(4) to require an individual surety to sign the bond or

that an individual surety has the right to insist that an officer taking a bail bond permit an attomey-in-

fact to sign bonds on the surety’s behalf. Moreover, given the potential added level of complexity

in enforcing a bond that has been signed by an attorney-in-fact, requiring an individual surety to sign

personally a bail bond may be a prudent practice.

The Honorable Cecil L. Solomon - Page 8 (GA-0288)

SUMMARY

In a county that has not established a bail bond board under

chapter 1704 of the Occupations Code, the authority of an officer

taking a bail bond to assess a surety’s qualifications is governed

by chapter 17 of the Code of Criminal Procedure. A sheriff is not

required to accept a bail bond signed by an individual surety’s

attorney-in-fact on the surety’s behalf. A sheriffs authority to require

a surety to sign a bond is based on article 17.08(4) of the Code of

Criminal Procedure, which establishes the requisites of a bail bond,

and is not affected by the fact that the surety may have demonstrated

sufficient security.

In the bail bond forfeiture context, a court may hold an

individual surety liable on a bond even though the surety did not

personally sign it, depending on the particular facts. However, no

statute or case suggests that an officer taking a bail bond lacks

authority under article 17.08(4) to require an individual surety to sign

the bond or that an individual surety has the right to insist that an

officer taking a bail bond permit an attorney-in-fact to sign bonds on

the surety’s behalf.

Very truly yours,

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Mary R. Grouter

Assistant Attorney General, Opinion Committee