Untitled Texas Attorney General Opinion

1’ OFFICE OF THE ATTORNLY GENERAL . ST.I\TE OF TEXAS

JOHN CORNYN

August 7,2002

The Honorable Danny Buck Davidson Opinion No. JC-0541

Criminal District Attorney

123d Judicial District Re: Whether a sheriff in a county that does not

110 South Sycamore have a bail bond board has the authority to post in

Carthage, Texas 75633 the county jail a list of preapproved bondsmen

(RQ-05 17-JC)

Dear Mr. Davidson:

You ask whether a sheriff in a county that does not have a bail bond board has the authority

to post in the county jail a list of preapproved bondsmen. We conclude that a sheriff is not

authorized to post such a list.

You ask about the authority of a sheriff in a county that has not established a bail bond board

under chapter 1704 of the Occupations Code. That chapter creates a board in each county with a

population of 110,000 or more, and authorizes, but does not require, the establishment of a board in

less populated counties. See TEX. OCC. CODEANN. $0 1704.002-.052 (Vernon 2002). In a county

with a bail bond board, only a person who holds a license from the board may act as a bail bond

surety in the county, with the limited exception of an attorney who represents the person in the

criminal case for which the bond is given. See id. 8 8 1704.15 1, .163. The sheriff must accept the

bonds of sureties licensed by the bail bond board. See id. 9 1704.201. The bail bond board must

post “in each court having criminal jurisdiction in the county, and shall provide to each local official

responsible for the detention of prisoners in the county, a current list of each licensed bail bond

surety and agent of the bail bond surety in the county.” Id. 8 1704.1 OS(a). In addition, chapter 1704

permits but does not require the posting of such a list in the county jail. See id. § 1704.105(b) (“A

list of each licensed bail bond surety in a county may be displayed where prisoners are examined,

processed, or confined.“).

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. 8 1704.002; see also Castaneda v. Gonzalez,

985 S.W.2d 500,503 (Tex. App.-Corpus Christi 1988, no writ) (in county where no bail bond board

has been created, chapter 17 of the Code of Criminal Procedure controls the taking of bail bonds in

that county). As chapter 17 governs the taking of bail bonds in the county at issue, we examine its

provisions in some detail.

The Honorable Danny Buck Davidson - Page 2 (JC-0541)

Chapter 17 authorizes an officer taking a bail bond to “require evidence of the sufficiency

of the security offered.” TEX.CODECRIM.PROC.ANN. art. 17.11,§ 1 (Vernon 1977). The sufficiency

of the security offered by a surety is governed by articles 17.11 through 17.14. One surety shall be

sufficient if

such surety is worth at least double the amount of the 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 officer taking the bail bond may require an affidavit attesting to the surety’s worth. Id. art.

17.13. Article 17.14 provides that the officer may require further evidence “if the . . . officer taking

the bail bond is not fully satisfied as to the sufficiency of the security offered . . . .” Id. art. 17.14.

Under article 17.11, a person who has signed as a surety on a bail bond and is in default is

disqualified to sign as a surety “so long as he is in default on said bond.” Id. art. 17.11,§ 2 (Vernon

supp. 2002).

Chapter 17 generally governs the taking of bail bonds on a bond-by-bond basis. A person

acting as surety must be a Texas resident and offer sufficient security. See id. art. 17.11, § 1 (Vernon

1977). A person is disqualified to act as surety on a bond if in default on a prior bond. See id. art.

17.11,§ 2 (Vernon Supp. 2002). With these exceptions, chapter 17 does not set forth qualifications

for sureties. 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. Op. No. DM-483

(1998) at 6 (Code of Criminal Procedure articles 17.11,17.13 and 17.14 authorize sheriff taking bail

bond to consider other bonds executed by 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,” TEX. CODEGRIM.PROC.ANN. art. 17.11, 0 1 (Vernon 1977); see also id. arts.

17.20-.22 (provisions governing when a peace officer may set and take bail); chapter 17 does not

vest any special authority in the sheriff.

And importantly, the authority of an officer taking a bond under chapter 17 of the Code of

Criminal Procedure is even more limited with respect to some corporate sureties. An officer taking

a bond lacks authority under articles 17.11 and 17.13 to question the solvency of a corporate surety

authorized to do business in Texas by the Department of Insurance. See Int ‘IFid. Ins. Co. v. Sherzjjf

ofDallas County, 476 S.W.2d 115 (Tex. Civ. App.-Beaumont 1972, writ ref’d n.r.e.); see also Tex.

Att’y Gen. Op. No. M-l 060 (1972) (article 17.11, section 1 does not limit total number or amount

of bail bonds corporate surety may make).

Both a judicial opinion and an opinion of this office have expressly concluded that these

Code of Criminal Procedure provisions do not authorize a sheriff to adopt rules imposing a licensing

The Honorable Danny Buck Davidson - Page 3 (JC-0541)

system for bail bond sureties akin to that set forth under chapter 1704 of the Occupations Code. See

Castaneda v. Gonzalez, 985 S.W.2d 500 (Tex. App.-Corpus Christi 1998, no writ); Tex. Att’y Gen.

LO-98-l 05. In Castaneda, 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 Tex. Fire & Cas. Co.

v. Harris County Bail Bond Bd., 684 S.W.2d 177,178 (Tex. App.-Houston [ 14th Dist.] 1984, writ

refd n.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 court in Castaneda concluded that the sheriffs authority to require evidence of the

sufficiency of the security offered by bondsmen under articles 17.11 and 17.14 authorized the 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:

The rules requiring bondsmen to accept suspension of their authority

to write bonds when in litigation concerning forfeitures and agree to

indemnify the Sheriff for expenses and attorney fees in any litigation

with him are unrelated to the sufficiency of the security offered, and,

therefore, the Sheriff has no authority to impose these requirements

under articles 17.11 and 17.14. Similarly, there is no authority for the

Sheriff to require the pledging of certain collateral. Under article

17.14, if the Sheriff is not satisfied with the sufficiency of the security

offered, further evidence shall be required. To require bondsmen to

actually pledge collateral, as the Sheriff seeks to do in this case, goes

beyond the statutory authority to require further evidence, and is

therefore impermissible.

Id. (citation omitted).

You ask whether a sheriff is authorized by chapter 17 to post in the county jail a list of

preapproved bondsmen. You explain that bondsmen in your county submit “an application for proof

of sufficiency of security” to the county sheriff.’ The list ofpreapproved bondsmen “is derived from

the application process.” Request Letter, supra note 1, at 2. The sheriff supplies inmates with this

list and local telephone books: “Inmates are not limited to the list and may contact any person,

attorney, firm, company, surety, or bondsman they wish.” Id. at 1.

‘Letter from Honorable Danny Buck Davidson, Crirninal District Attorney, 123d Judicial District, to Honorable

John Comyn, Texas Attorney General, at 1 (received Feb. 27, 2002) (on file with Opinion Committee) [hereinafter

Request Letter].

The Honorable Danny Buck Davidson - Page 4 (JC-0541)

We conclude that the posting of such a list exceeds the authority of a sheriff under chapter

17. Clearly, chapter 17 authorizes an officer taking a bond to require proof of the sufficiency of

security offered by the bondsmen, proof that the officer could require in the form of an application.

See Castaneda, 985 S.W.2d at 503 (“The rule requiring bondsmen to fill out an application form is

permissible under the Sheriffs authority to require evidence of the sufficiency of the security offered

by bondsmen.“). Arguably, chapter 17 might authorize a sheriff to preapprove bondsmen on a

voluntary basis, provided that the officer taking a bond from a preapproved bondsman verifies

that the bondsman’s security is still sufficient, see, e.g., TEX. CODECRIM.PROC.ANN. art. 17.11,

89 l- 2 (Vernon 1977 & Supp. 2002) (“any person who has signed as a surety on a bail bond and is

in default thereon shall thereafter be disqualified to sign as a surety so long as he is in default on said

bond”), and provided that those who have not been preapproved are not precluded from executing

bonds.

But no provision in chapter 17 expressly authorizes a sheriff to provide a list of preapproved

bondsmen to inmates, and we do not believe that this authority may be implied. Chapter 17 provides

authority for the taking of bonds in individual cases; it does not address the sheriffs provision of

information to inmates. Furthermore, as we have noted, a sheriff is not authorized to question the

sufficiency ofa state-regulated corporate surety’s security. SeeInt ‘IFid. Ins. Co., 476 S.W.2d at 120

(sheriff “does not have any discretion in the determination of the sufficiency of the surety when the

surety upon the bond tendered for approval is an insurance company authorized to-do fidelity and

surety business in Texas”). A list of bondsmen whose security has been preapproved by the sheriff

under chapter 17 would omit corporate sureties that might also be eligible to execute bonds in the

county. By contrast, the list of licensed bail bond sureties that chapter 1704 of the Occupations Code

permits to be displayed “where prisoners are examined, processed, or confined,’ includes every

surety eligible to execute bail bonds in the county. See TEX. OCC.CODEANN. $5 1704.105(b) (bail

bond surety list), .152 (licensing requirements for both individuals and corporations qualified to

write fidelity, guaranty, and surety bonds under the Insurance Code).

In sum, chapter 17 of the Code of Criminal Procedure does not provide a statutory basis for

a sheriff to provide a list of preapproved bondsmen to inmates. A sheriff has only those powers that

are provided by the legislature. See TEX. CONST.art. V, 8 23 (sheriffs “duties, qualifications,

perquisites, and fees of office[] shall be prescribed by the Legislature”). We have not located any

other statute that expressly or impliedly provides such authority. The sheriffs position as the keeper

of the county jail authorizes the sheriff to provide individuals who are arrested in the county and

detained in the county jail with information that will enable them to contact potential bondsmen, to

facilitate their release on bail. See TEX. LOC.GOV’T CODEANN. 0 35 1.041 (Vernon 1999) (sheriff

is the keeper of the county jail); see also TEX. CONST.art. 1, 8 11 (right to bail). The sheriff may

provide detainees with telephone books and may compile and provide detainees with a

comprehensive list of all persons who wish to execute bail bonds in the county. But the authority

to provide information does not authorize a sheriff to provide information that distinguishes between

preapproved and other potential sureties. Accordingly, we conclude that a sheriff is not authorized

to post in the county jail a list of preapproved bondsmen.

The Honorable Danny Buck Davidson - Page 5 (JC-0541)

SUMMARY

A sheriff in a county that does not have a bail bond board is

not authorized to post in the county jail a list of preapproved

bondsmen.

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

NANCY FULLER

Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY

Chair, Opinion Committee

Mary R. Crouter

Assistant Attorney General, Opinion Committee