Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
June 29, 1988
Honorable Joe Warner Bell Opinion No. JM-927
Trinity County Attorney
P. 0. Box 979 Re: Whether a County Commis-
Groveton, Texas 75845 sioner may act as surety on a
bail bond for an offense
committed in his county, and
related questions (RQ-1405)
Dear Mr. Bell:
You ask:
Whether a county commissioner may act as a
surety on a bail bond
~. for .a person charged
.. _.
with an offense in his county and permit IliS
property to be pledged as security on such
bond.
Subsection (a) of section 81.002 of the Local
Government Code provides:
(a) Before undertaking the duties of the
county judge or a county commissioner, a
person must take the official oath and swear
in writing that the person will not be
interested. directlv or indirectlv. in a
contract with cla' asainst the
countv. . . . (EmpEisis adgd.)
A bail bond is defined in article 17.02 of the Code of
Criminal Procedure as 'Iawritten undertaking entered into by
the defendant and his sureties for the appearance of the
principal therein before some court or magistrate to answer
a criminal accusation."
A bail bond has been defined as a contract between the
government and the defendant and his surety.
parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980).
p. 4652
Honorable Joe Warner Bell - Page 2 (JM-927)
22.02 of the Code of Criminal Procedure delineates the
procedure for forfeiture of bail bonds upon failure of the
defendant to appear at the appointed time and provides that
"judgment shall be entered that the State of Texas recover
of the defendant the amount of money in which he is bound,
and of his sureties, the amount of money which they are
respectively bound, which shall state that the same will be
made final, unless good cause be shown why the defendant did
not appear." Article 103.004 of the Code of Criminal
Procedure provides that the officer who collects bail bonds
and other obliaations recovered in the name of the state vav
the monev to the countv treasurer of the countv for which
the monev was collected.
When a county commissioner acts as a surety on a bail
bond he enters into a contract making the county the
beneficiary if the principal fails to perform. The
commissioner's oath of office prohibits him from entering
into a contract in which he and the county he serves have an
interest.1
SUMMARY
A commissioner may not act as a surety on -.
a bail bond for a defendant in which he and
the county he serves have an interest.
J ti
Very truly yo
A
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLBY
Special Assistant Attorney General
1. Serving as a surety on a bail bond does not come
within the exception to the prohibition of section 81.002
permitting a commissioner to enter into '*acontract or claim
expressly authorized by law."
p. 4653
Honorable Joe Warner Bell - Page 3 (JM-927)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
C
P. 4654