Untitled Texas Attorney General Opinion

axfice of t!&?mtornep &nerd

State of QJexaa

DAN MORALES

ATTORNEY

GENERAL September 2, 1998

The Honorable Richard J. Miller Opinion No. DM-483

Bell County Attorney

P.O. Box 1127 Re: Whether a sheriffs authority to refuse to

Belton, Texas 765 13 accept a bail bond executed by an attorney for a

client the attorney represents in a criminal case is

The Honorable Bill Moore governed by article 2372p-3, V.T.C.S., or Code of

Johnson County Attorney Criminal Procedure articles 17.11, 17.13, and

2 North Main Street, First Floor Courthouse 17.14; whether a sheriff may require an attorney

Clebume, Texas 76031 or bondsman to post collateral; and related

questions (RQ-968, RQ-1100)

Dear Mr. Miller and Mr. Moore:

Mr. Miller asks a number of questions about the authority of a sheriff to refuse to accept a

bail bond executed by an attorney in a county where the execution of bail bonds is governed by

article 237213-3, V.T.C.S. (the “act”).’ The cmx ofhis query is whether a sheriffs authority to refuse

to accept a bail bond executed by an attorney for a client the attorney represents in a criminal case

is governed by article 2372~.3 or Code ofCriminal Procedure articles 17.11,17.13, and 17.14. For

the reasons discussed below, we believe that each of these provisions is applicable.

The execution of bail bonds in Mr. Moore’s county is not governed by article 2372~.3 but

rather by the Code of Criminal Procedure? Mr. Moore asks whether articles 17.11,17.13, and 17.14

authorize a sheriff to require a bail bondsman or attorney who wishes to execute a bond to post real

or personal property as collateral. As discussed below, we agree with his assessment that a sheriff

is not authorized to do so. Because both opinion requests touch upon the authority of a sheriffunder

articles 17.11, 17.13, and 17.14, we address them together.

‘Article 2372~.3 governs the execution of bail bonds in a county with a population in excess of 110,000.

V.T.C.S. art. 2372~~3, 5 3 (“The provisions of this Act apply only to the execution of bail bonds in counties having a

population of more than 110,000 according to the last federal census or in counties of less than 110,000 where a board

has been created.“). Bell County has a population of 191,088. See U.S. Bureau of Census, U.S. Dep’t of Commerce,

1990 Census of Population: Texas 1 (1990).

‘Mr. Moore informs us that Johnson County has a population of less than 110,000 and that it has not exercised

the option to establish a bail bond board. Therefore, article 2372p-3 does not apply to the execution of bail bonds in

Johnson County. See V.T.C.S. art. 2372~.3,s 3.

The Honorable Richard J. Miller - Page 2 (DIG483)

The Honorable Bill Moore

We begin with Mr. Miller’s questions, which first require us to sort out the relationship

between article 237213-3 and the Code of Criminal Procedure provisions with respect to an attorney

who executes a bond for a client the attorney represents in a criminal case. Section 3 of article

2372p-3 provides that in a county governed by its provisions, no person may act as a bondsman

except a person licensed under the act-’by the county bail bond board or, if certain requirements are

satisfied, an attomey.4 Thus, an attorney who satisfies certain requirements is excepted from the

general mandate that a person who executes bail bonds obtain a license from the county bail bond

board. The requirements an attorney must satisfy to fall within the exception are set forth in section ,

3(e), which provides in pertinent part as follows:

Persons licensed to practice law in this state may execute bail bonds or

act as sureties for persons they actually represent in criminal cases without

being licensed under this Act, but they areprohibitedfrom engaging in the

practices made the basisfor revocation of license under this Act and iffound

by the sheriffto have violated any term ofthis Act, may not qua& thereafter

under the exception provided in this subsection unless and until they come

into compliance with those practices made the basis of revocation under this

Act.

V.T.C.S. art. 2372p-3, $ 3(e) ( em ph asis added). This exception applies only to an attorney who

executes a bail bond for a client the attorney represents in a criminal case. Such an attorney is not

wholly free from the requirements of article 2372~~3, however, because the exception only applies

if the attorney has not engaged in “practices made the basis for revocation of license under this Act.”

Id. Significantly for our purposes, it is the sheriffwho is authorized to make the determination that

an attorney has engaged in disqualifying conduct. See id. (“if found by the sheriffto have violated”).

Code of Criminal Procedure articles 17.11, 17.13, and 17.14 predate article 2372p-3, which

was enacted in 1973.5 Article 17.11 provides that an ofticeP taking a bail bond

shall require evidence of the sufficiency of the security offered; but in every

case, one surety shall be sufficient, if it be made to appear that such surety is

‘Id. 5 3(a)(l).

4Id. 5 3(a)(2),

‘The CodeofCriminalProcedureprovisionspredate 1925 andwererevised in 1965. See Act ofMay27,1965,

59th Leg., R.S., ch. 722, 5 1, 1965 Tex. Gen. Laws 317,376.77. Article 2372p-3 was enacted in 1973. See Act of

May 18, 1973,63d Leg., R.S., ch. 550, 1973 Tex. Gen. Laws 1520,152O.

6For provisions governing when a peace officer may set and take bail, see Code of Grim. Proc. arts.

17.20 - .22; see also Hokr v. Stafe, 545 S.W.2d 463 (Tex. Grim. App. 1977) (peace officer may set and take bail in

misdemeanor case if magistrate not available). In answering these queries, we assume they ask only about situations

in which the sheriff is authorized to take bail.

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The Honorable Bill Moore

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.

Code Crim. Proc. art. 17.11, 5 1. Article 17.13 authorizes an officer taking a bail bond to obtain an

affidavit testing its sufficiency.’ Under article 17.14, however, such an affidavit is not conclusive.

That article authorizes the officer taking the bond to obtain additional evidence.*

Mr. Miller asks, in essence, whether the authority of a sheriff to refuse to accept a bail bond

executed by an attorney for a client the attorney represents in a criminal case is governed by article

2372p-3 or Code of Criminal Procedure articles 17.11, 17.13, and 17.14. We believe that these

provisions may be harmonized and that each applies: Article 2372p-3 governs the sheriffs

determination whether an attorney is exempt from the act’s licensing requirements. A sheriffs

authority to determine the sufficiency of the security offered by an exempt attorney is governed by

the Code of Criminal Procedure. Our reasons for this conclusion follow.

InMinton v. Frank, 545 S.W.2d 442 (Tex. 1976), two attorneys challenged acounty sheriff s

policy requiring attorneys to make a cash deposit or execute a deed of trust in order to execute bail

bonds for clients. The requirements of the sheriffs policy were nearly identical to article 2372p-3

requirements applicable to licensees. The Texas Supreme Court concluded that attorneys were

wholly exempt from the act’s requirements for license applicants, including the act’s bonding

requirements. Id. at 445. The court also opined as follows:

Attorneys are subject to article 2372p-3, to the extent that [it] prohibits

them from engaging in the practices made the basis for revocation

of a license under the Act, and provides that if they are found guilty of such

‘Code of Criminal Procedure article 17.13 provides in pertinent part as follows:

To test the sufficiency of the security offered to any bail bond, unless the court or

officer taking the same is fully satisfied as to its sufficiency, the following oath shall be

made in writing and subscribed by the sureties: “1, do swear that I am worth, in my own

right, at least the sum of (here insert the amount in which the surety is bound), after

deducting from my property all that which is exempt by the Constitution and Laws of the

State from forced sale, and after the payment of all my debts of every description, whether

individual OI security debts, and after satisfying all encumbrances upon my property which

are known to me; that I reside in County, and have property in this State liable

to execution worth said amount OI more.

‘Code of Criminal Procedure article 17.14 provides as follows:

Such aff&vit shall not be conclusive as to the sufficiency of the security; and if the

court or off&r taking the bail bond is not fully satisfied as to the sufficiency of the security

offered, further evidence shall be required before approving the same.

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The Honorable Bill Moore

practices they may not thereafter claim the exemption for attorneys.

Article 17.11 of the Code of Criminal Procedure directs the officer taking a

bail bond to require evidence of the sufficiency of the security offered.

Section 14 of the Act gives the sheriff the sole responsibility of receiving and

approving bail bonds. The trial court correctly held [that] petitioners are

subject to the provisions of chapter 17 of the Code of Criminal Procedure

which deals with the making and sufficiency of bail bonds.

Id. at 445-46.

Article 2372p-3 was significantly revised in 1981, several years after the supreme court’s

decision in Minton, to its present form. The attorney exemption in section 3 was moved from

subsection (b) to subsection (e) and amended to state that attorneys are not exempt from licensure

“if found by the sheriff to have violated any term of this Act” and to state that attorneys found to

have violated a term of the act are not qualified for exemption “unless and until they come into

compliance with those practices made the basis ofrevocation under this Act.‘* The legislature also

added the following caveat to the attorney exemption:

Notwithstanding any other provision of this subsection, no person licensed

to practice law shall be relieved of liability on a bail bond he has executed for

the sole reason that he has not been employed to represent the principal on

the merits of the case if he has been paid a fee for the execution of the bail

bond.‘O

In addition, the security requirements for licensees were increased in section 6, subsections

(f) and (g), and the bases for revocation of a bail bond license were significantly expanded from eight

to twelve in section 9(b).” Specifically, the act was amended to preclude a licensed bondsman from

executing “bail bonds that in the aggregate exceed 10 times the value of the property held as security

on deposit or in trust under Subsection (f)” in section 6(g)‘* and to add the following as basis for

license revocation in section 9(b)(l2): “[O] n more than one occasion failing to maintain the

minimum amount of security required by this Act or misrepresenting to any offkial or employee of

the official the limit supported by the amount of security to obtain the release of any person on

9V.T.C.S. art. 2372~.3,s 3(e), enactedby Act ofMay29, 1981,67thLeg., RX, ch. 312,s 1, 1981 Tex. Gen.

Laws 875,876.

“Id.

“CompareV.T.C.S. art. 2372p-3 asexcetptedinMinton v. Frank, 545 S.W.2d442.443-445 (Tex. 1976), with

V.T.C.S. art. 2372p-3 as amended by Act of May 29, 1981, 67th Leg., R.S., ch. 312, 5 1, 1981 Tex. Gen. Laws 875,

875.

“V.T.C.S. art. 2372p-3,s 6(g),enactedbyActofMay29,1981,67thLeg., R.S.,ch. 312,s 1, 1981 Tex. Gen.

Laws 875,880.

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The Honorable Bill Moore

bond.“” In addition, the legislature deleted provisions authorizing a sheriff to question the

sufficiency of a licensee’s bond and added language in section 14 requiring a sheriff to accept a bail

bond from a licensee.14 This amendment effectively repealed a sheriffs authority under Code of

Criminal Procedure article 17.14 to question the sufficiency of a licensee’s security. Font v. Cam,

867 S.W.2d 873, 881-82 (Tex. App.--Houston [lst Dist.] 1993, writ dism’d w.0.j.).

Based on our review of the 1981 amendments to article 2372p-3, we see no indication that

the legislature intended to make exempt attorneys subject to the act’s security requirements or to

strip sheriffs of their authority to question the sufficiency of exempt-attorney bail bonds. Because

attorneys who execute bail bonds for clients are not subject to the act’s licensing requirements,

including the security requirements, we believe that the legislature did not intend for the section

9(b)(12) prohibition to apply to an exempt attorney. Furthermore, the limitation on a sheriffs

authority to refuse bail bonds in section 14 applies only to the bonds of licensees. The 1981

amendments to section 3(e) indicate that the legislature intended sheriffs to continue to exert

authority over bonds of exempt attomeys.15

This construction of the 1981 changes to the act is also supported by a 1988 opinion of this

office concluding that bonds executed by exempt attorneys are not subject to regulation by a county

bail bond board under article 2372p-3 but, rather, are subject to regulation by the sheriff (and, in

some instances, another officer taking the bond)“ under the Code of Criminal Procedure:

[Attorneys] are exempt from obtaining a license and are not required to

comply with the requirements imposed upon an applicant . . Minton v.

Frank, 545 S.W.2d 442 (Tex. 1976). Licensed attorneys are subject to the act

insofar as they are prohibited from engaging in practices made the basis for

revocation of a license. The act expressly provides that this is a matter for the

determination of the sheriff.

Any offrcer “taking a bail bond shall require evidence of the sufficiency

of the security offered.” Article 17.11 Code of Criminal Procedure. In

Minton Y. Frank the court noted that bonds executed by attorneys are subject

to this provision.

“V.T.C.S. art. 2372~3-3, $9(b)(l2), enactedby Act ofMay 29, 1981,67thLeg., R.S., ch. 312, 5 1, 1981 Tex.

Gen. Laws 875,882.

“See V.T.C.S. art. 2372p-3,§ 14, enacted by Act of May 29, 1981,67th Leg., RX, ch. 312,s 1, 1981 Tex.

Gen. Laws 875,884.

“We have reviewed the legislative history ofthe 198 1 amendments. We found no indication that the legislature

intended to make exempt attorneys subject to the act’s security requirements or to strip sheriffs of their authority to

question the sufficiency of exempt-attorney bail bonds.

%e supro note 6.

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Attorney General Opinion JM-901 (1988) at 3. For these reasons, we conclude that the sufficiency

of the security offered by an attorney who executes a bail bond for a client is governed by the Code

of Criminal Procedure rather than sections 6(f), (g) and 9(b)(12) of article 2372p-3.”

Mr. Miller asks a series of related questions: “Under what situations, if any, does a sheriff

have the discretion to refuse to accept a bail bond executed by an attorney. ? Is the authority of

an attorney unfettered as to the total amount of bail bonds that he or she can execute .? [W]hat

formula does the sheriff use to determine the total amount of bonds an attorney may execute?

[W]hat legal discretion does the sheriff have and to what extent may he go to require verification of

the attorney’s worth for bail bond purposes?“18

A sheriff must refuse to accept a bail bond offered by an attorney on behalf of a client if the

sheriff concludes that the attorney has “engag[ed] in practices made the basis for revocation of [a]

license” under article 2372p-3.19 A sheriffs authority with respect to the sufficiency of the security

offered by an attorney exempt from licensure under article 2372p-3 is governed by articles 17.11,

17.13, and 17.14. Article 17.11 provides that “one surety shall be sufficient, ifit be made to appear

that such surety is worth at least double the amount of the sum for which he is bound.” Article 17.13

authorizes a sheriff to obtain an affidavit regarding the sufficiency of security while article 17.14

authorizes a sheriff to require additional evidence if he or she is not satisfied with the affidavit.

Courts have recognized that these provisions grant a sheriff broad discretion to determine whether

security is sufficient,*” provided that approval of a bail bond is not arbitrarily withheld.” We believe

that a sheriff is authorized to take into account other bail bonds an attorney has executed in

determining the attorney’s worth under article 17.11?*

“Other revocation bases set forth in section 9(b) also appear to be premised on a bail bond board’s authority

to license and regulate licensees. See, e.g., V.T.C.S. art. 2372p-3, $9(b)(l), (2), (lo), (11). Mr. Miller’s query does

not require us to address whether exempted attorneys are prohibited fromengaging in the conduct set forth in these bases

for license revocation and we refrain from resolving these questions in this opinion.

“We assume Mr. Miller asks about an attorney who seeks to execute a hail bond for a client the attorney

represents in a criminal case. For a discussion of possible limitations on the authority of a sheriff to conclude thal an

attorney has written bail bonds for defendants the attorney does not represent and to preclude the attorney from doing

so, see Price v. Carpenter, 758 F. Supp. 403,406 (N.D. Tex. 1991).

“But see supra note 17

“?See Exparte S/G&y, 475 S.W.2d 929,930 (Tex. Crim. App. 1972) (reviewing refusal of security for abuse

of discretion); Exparte Wliams, 32 S.W.2d 839, 839-40 (Tex. Grim. App. 1930) (same).

“See Expnrte Wliams, 67 S.W.2d 865,867 (Tex. Grim. App. 1934) (officers may not arbitrarily decline to

approve hail bonds).

“Under article 17.11, “debts OI other encumbrances” are excluded from a surety’s worth. In an article 17.13

affidavit, a surety attests to his worth “after the payment of all my debts of every description, whether individual OI

security debts, and after satisfying all encumbrances upon my property which are known to me.” Case law appears to

(continued...)

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The Honorable Bill Moore

We now turn to Mr. Moore’s query. Again, article 2372p-3 is not applicable in his county.

He asks, in essence, whether a sheriff is authorized under the Code of Criminal Procedure articles

17.11, 17.13, and 17.14 to require an attorney or bondsman” to post collateral. More specifically,

he states that the sheriff “seeks to have the sureties convey (in trust or otherwise) real estate,

certificates of deposit, or other collateral or financial instruments as security to be held by the

County, Treasurers, or Sheriff.” He also states that “[tlhe attorney or bondsman would be able to

write bonds for some multiple ofthe amount ofthe collateral or security. The sheriffwould establish

the formula or multiple which would determine the maximum liability per bond and for the total

bonds upon which the surety could be liable.”

As stated above, we believe that a sheriff is authorized to take into account other bail bonds

a surety has executed in determining the surety’s worth under article 17.1 1.24 However, we agree

with Mr. Moore’s assessment that articles 17.11, 17.13, and 17.14 do not authorize a sheriff to

require a surety to post collateral. Article 17.11 provides that a sheriff “shall require evidence ofthe

sufficiency of the security offered.” Article 17.13 authorizes a sheriff to require a surety to sign an

affidavit “[t]o test the sufficiency of the security offered” and article 17.14 authorizes a sheriff to

require “further evidence.” These articles speak in terms of the evidence a sheriff may require in

order to be satisfied with the sufficiency of security. We do not believe that the authority to obtain

and evaluate evidence can be expanded to include the authority to require a surety to transfer

property.

Minton v. Frank, 545 S.W.2d 442, supports this statutory construction. As noted above, in

that case two attorneys challenged a sheriffs policy requiring attorneys to make a cash deposit or

execute a deed of trust in order to execute bail bonds for clients. The Texas Supreme Court

concluded that the sheriffs authority to question the sufficiency of the security offered by the

attorneys was governed by the Code of Criminal Procedure rather than article 2372p-3 and affirmed

the judgment of the trial court. Id. at 446. The trial court judgment had enjoined the sheriff from

requiring the plaintiffs to pledge security, including deposits ofmoney, stock certificates, certificates

of deposit, deeds or deeds of trust, but “specifically require[d] compliance by the plaintiffs with the

evidence of sufficiency of security provisions ofArticle 17.11.” Id. at 443. Clearly, neither the trial

condone the consideration of other bonds in determining a surety’s worth. See, e.g., Exparte Williams, 67 S.W.2d at

866 (approving sheriffs refusal to accept bond where sheriff appears to have taken into account other bonds executed

by surety); Exparte Williams, 32 S.W.2d at 839-40 (same).

*‘We assume that Mr. Moore asks only about a sheriffs authority with respect to individual sureties. Questions

about a sheriffs authority with respect to corporate sureties in a county not governed by article 2372p-3 would require

us to review additional statwes. See generally fnternational Fidelity Ins. Co. v Sherilf-of Dallas County, 476 S.W.2d

115 (Tex. Civ. App.--Beaumont 1972, writ refd n.r.e.) (sheriff lacks authority under Code of Criminal Procedure

articles 17.11, 17.13, and 17.14 to question the solvency of a corporate surety authorized to do business in this state by

the former State Board of Insurance).

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The Honorable Bill Moore

court nor the Texas Supreme Court construed article 17.11 to authorize a sheriff to require a surety

to post collateral.

SUMMARY

Attorneys may execute bail bonds for persons they actually represent in

criminal cases without being licensed under article 2372p-3. See V.T.C.S.

art. 2372p-3,s 3(e). A sheriff must refuse to accept an attorney bail bond if

the sheriff concludes that the attorney has “engag[ed] in the practices made

the basis for revocation of [a] license” under article 2372p-3. See id. A

sheriffs authority with respect to the sufficiency of the security offered by

an attorney exempt from licensure under article 2372p-3 is governed by the

CodeofCriminalProcedure,articles17.11, 17.13,and17.14. Article17.11

provides that “one surety shall be sufficient, if it be made to appear that such

surety is worth at least double the amount ofthe sum for which he is bound.”

Articles 17.11, 17.13, and 17.14 grant asheriffbroad discretion to determine

whether the security offered by an individual surety is sufficient, including

the discretion to consider other bonds executed by the surety, but do not

authorize a sheriff to require a surety to post collateral.

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

SARAH J. SHIRLEY

Chair, Opinion Committee

Prepared by Mary R. Crouter

Assistant Attorney General

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