Untitled Texas Attorney General Opinion ( 2017 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
February 6, 2017
The Honorable Timothy J. Mason Opinion No. KP-0132
Andrews County Attorney
121. Northwest Avenue A Re: Authority of a reserve deputy sheriff to act
Andrews, Texas 79714 as a surety on a bail bond (RQ-0123-KP)
Dear Mr. Mason:
You have requested an opinion from this office regarding whether a reserve deputy sheriff
may act as a surety on a bail bond. 1 Your request raises three specific but related concerns.
Request Letter at 1. We first address whether a reserve deputy sheriff is eligible to sign as a surety
on a bail bond made in the county in which the deputy serves. Id.
Chapter 17 of the Code of Criminal Procedure governs the eligibility of sureties for bail
bonds made in Andrews County. 2 Chapter 17 contains certain eligibility requirements for
bail-bond sureties and disqualifies certain individuals from acting as a surety on a bail bond,
including felons and minors. See TEX. CODE CRIM. PROC. arts. 17 .10 ("Disqualified sureties"),
17.11, § 1 (individual 'acting as surety must be a Texas resident and offer sufficient security), 17 .11,
§ 2 (default on bail bond disqualifies individual from acting as surety on another bond). Assuming
a reserve deputy sheriff meets these eligibility requirements, nothing in the statute would otherwise
render a reserve deputy sheriff ineligible to sign as a surety on a bail bond. See id. arts. 17 .08
("Requisites ofa bail bond"), 17.10-.11; see also Tex. Att'y Gen. Op. No. GA-0288 (2004) at
1-2 ("[C]hapter 17 of the Code of Criminal Procedure establishes very few qualifications for a
person to act as an individual surety.").
You additionally ask whether a sheriff may accept a bail bond listing a reserve deputy
sheriff as a surety. Request Letter at 1. ~hapter 17 authorizes a sheriff to accept bail bonds from
1
See Letter from Honorable Timothy J. Mason, Andrews Cty. Att'y, to the Op. Comm., Office of the Tex.
Att'y Gen. at I (Aug. I, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2
While chapter 1704 of the Occupations Code regulates bail bond sureties, the provisions of that chapter
apply only to counties having a population of 110,000 or more, or in counties ofless than 110,000 that have established
a bail bond board. See TEX. Occ. CODE § 1704.002. Chapter 17 of the Code of Criminal Procedure-rather than
chapter 1704 of the Occupations Code-governs the taking and approval of bail bonds in Andrews County, which as
you inform us does not have a large enough population to fall under chapter 1704 and has not exercised the option to
establish a bail bond board. See Request Letter at I; see also TEX. Occ. CODE § 1704.002; Castaneda v. Gonzales,
985 S.W.2d 500, 503 (Tex. App.-Corpus Christi 1998, no pet.).
The Honorable Timothy J. Mason - Page 2 (KP-0132)
defendants accused of misdemeanor and felony offenses. TEX. CODE CRIM. PROC. arts. 17 .20-.21.
Again, provided that the bond meets the necessary statutory prerequisites and the surety satisfies
the aforementioned eligibility requirements, the statute does not expressly prohibit a sheriff from
accepting a bail bond listing a reserve deputy sheriff as a surety. See id. arts. 17.08, 17.10-.11.
Beyond these requirements, we last address whether any other legal authority exists that
would prohibit a reserve deputy sheriff from acting as a surety on a bail bond in the county where
the deputy serves. Request Letter at 1. Chapter 171 of the Local Government Code governs local
public officials' conflicts of interest, including conflicts involving sureties and other business
interests. TEX. Loe. Gov'T CODE §§ 171.003-.004, .007(a). The statutory definition of a "local
public official" to whom chapter 171 applies includes an "officer, whether elected, appointed, paid,
or unpaid, of any ... county ... who exercises responsibilities beyond those that are advisory in
nature." Id. § 171.001(1). With regard to the appointment and responsibilities ofreserve deputy
sheriffs, the sheriff appoints these deputies and calls them into service when additional officers are
necessary "to preserve the peace and enforce the law." Id. § 85.004(a)-(b). Reserve deputy
sheriffs serve at the discretion of the sheriff, but when on duty and actively engaged in their
assigned duties, the law vests them with "the same rights, privileges, and duties as any other peace
officer of the state." Id. § 85.004(b), (d).
We need not reach the question of applicability, however, because even when chapter 171
applies, it does not bar a local public official from acting as a surety on a bail bond. 3 See id.
§ 171.003 (list of acts that are offenses prohibited under chapter 171). Rather, chapter 171 only
prohibits a local public official from acting as a surety on an official bond required of a
governmental officer or as a "surety for a business entity that has work, business, or a contract"
with a government entity. Id. § 171.003(a)(2)-(3). Although a bail bond is a contract with the
county, the prohibition against acting as a surety on a contract applies to only a local public official
acting as a surety for a "business entity." Id. § 171.003(a)(2); see also Tex. Att'y Gen. Op. No.
JC-0121 (1999) at 1 ("[A] bail bond is a contract to which the county is a party and in which a
surety has an interest."). For purposes of chapter 171, the term "business entity" does not include
individuals. TEX. Loe. Gov'T CODE§ 171.001(2). Thus, section 171.003(a)(2) does not prohibit
a local public official from acting as a surety for an individual, such as a bail bond contract made
to secure the release of an individual defendant from the State's custody. See TEX. CODE CRIM.
PROC. art. 17.02 (defining "bail bond"). 4 Beyond the authorities discussed, we find no other law
3
No authorities of which we are aware address whether the term "officer" as used in section 171.001(1),
includes peace officers of this State. Cf Tex. Att'y Gen. Op. No. GA-0402 (2006) at I (concluding that deputy sheriff
is not an officer for purposes of article 16, section 40 of the Texas Constitution).
4
Section 171.004 of chapter 171 contains additional restrictions for local public officials who must participate
in a vote or decision effecting a business entity in which the official has a substantial interest, including disclosure and
abstention requirements. TEX. Loe. Gov'T CODE § 171.004. Nothing in your letter indicates that the reserve deputy
sheriff has a substantial interest in any business entity. See Request Letter at 1. Regardless, this office has previously
concluded that certain law enforcement action, including the performance of statutory duties related to bail bonds, is
not a "decision" triggering application of section 171.004's abstention and disclosure requirements. See Tex. Att'y
Gen. Op. No. GA-0784 (2010) at 4.
The Honorable Timothy J. Mason- Page 3 (KP-0132)
that would prohibit either a reserve deputy sheriff from acting as a surety on a bail bond or a sheriff
from accepting such a bond. 5
We note, however, that the Texas Supreme Court previously cautioned against law
enforcement officers using official authority to enforce personal rights, holding in an 1879 opinion
that public policy forbids a sheriff from enforcing a writ of execution for his own benefit. See
Erwin v. Bowman, 51 Tex. 513, 518 (1879). By analogy, a reserve deputy sheriff who acts as
surety for an accused who fails to appear could run afoul of precedent if that deputy then used his
official authority to rearrest the accused. See TEX. CODE CRIM. PROC. art. 17.08, § 6 (sheriff or
other peace officers must rearrest accused in the event he or she fails to appear before court named
in bond). Like a sheriff seeking to execute a judgment for personal gain, a reserve deputy sheriff
acting as a surety for an individual who failed to appear has a financial interest in rearresting that
individual. A reserve deputy sheriff also has a financial interest in the initial acceptance of such a
bond. See id. arts. 17.20-.21 (sheriff or other peace officer authorized to accept bail bonds). As
such, it would be advisable for the sheriff to limit the scope of the reserve deputy sheriffs
authority, particularly with reference to any official performance of duties related to the deputy's
bail bonds. See TEX. Loe. Gov'T CODE § 85.004(b) (sheriff may limit authority of reserve deputy).
5
0pinions from this office have previously concluded that county judges and commissioners may not act as
sureties on bail bonds because the Local Government Code requires these officials to take an additional oath swearing
that they will not have an interest in a contract with the county, subject to limited statutory exceptions. See TEX. Loe.
GOV'T CODE§ 81.002(a); see also Tex. Att'y Gen. Op. Nos. JC-0121 (1999) at 4 (county judge prohibited from
making bail bonds in county where judge presides because of oath), JM-927 (1988) at 2 (county commissioner
prohibited from making bail bonds in county where commissioner serves because of oath). This statutorily-required
oath is specific to the positions of county commissioner and county judge and does not apply to reserve deputy sheriffs.
See TEX. Loe. Gov'T CODE § 81.002(a).
The Honorable Timothy J. Mason- Page 4 (KP-0132)
SUMMARY
Chapter 17 of the Code of Criminal Procedure establishes
the eligibility requirements for sureties on a bail bond made in
Andrews County. Assuming a surety satisfies these requirements,
we are not aware of any authority that would prohibit a reserve
deputy sheriff in Andrews County from acting as a surety on a bail
bond or prohibit a sheriff from accepting such a bond.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee