Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Novimber 14, 1984
JIM MATTOX
Attorney General
Supreme Court Building
P. 0. Box 1254 lionorableMike Drismll opinion No. ``-232
Austin. TX. 78711. 254S Harris County Attornley
512l4752501 1001 Preston, Suite ~634 Re: Eligibility for membership
-rem SlWS74.1367
Houston. Texas 770132 on the Harris County Bail Bond
T.IecopIer 5121475.0268
Board and related questions
714 Jackson. Suite 700 Dear Mr. Driscoll:
Dallas. TX. 75202.4506
21U7428SU
You inquire about eligibility for membership on the Harris County
Ball Bond Board and the finality of a judgment against a corporate
4824 Alberta Ave., Suile 160 surety. You first ask:
El Paso. TX. 799052793
915633-3464 Does an individual who is licensed as a bail
bondsman by the Barr16 County Bail Bond Board and
01 Texas. Suite 700
who is at,thotizedto do business under an assumed
HOUSTON, TX. 77002.3111 name, forfeit his position as a member of the bail
71312235888 bond board by conveying to a third party the
business under which assumed name he has
previously operated, even though he is presently
606 Broadwey. Suite 312
Lubbock. TX. 7S401-3479
sitting aa a member of the bail bond board as a
8061747~5238 licensed bondsman, and is maintaining a bail bond
license, and whose bonds the sheriff currently
accepts, and whose collateral Is still valid?
4309 N. Tenth. Suite B
McAllen. TX. 7850%16R5
5121662.4547
An individual described by your question do&s not forfeit his
position as a me&x of the bail bond board by conveying to a third
party a business which the individual previously operated under an
200 Main Plaza Suite 400 assumed name. Article 2372p-3. section 5(b) (61, V.T.C.S., provides
San Antonio. TX. 7S2C5.2797
512l225.4191
the following:
(b) The County Bail Bond Board shall be
An Equal Opportunityl composed zf the following persons:
Affirmative Action Er”plovw
. . . .
(6) a licensed bondsman, licensed in the
county * gztectedby other county licensees. . . .
(EmphasiE,added).
The statute’s only requirement for a member elected by other county
licensees is that the member be a licensed bondsman who is licensed in
the county. The xdividual in question continues to be a licensed
p. 1041
Honorable Hike Driscoll - Page 2 (JM-232)
bondsman in Harris County. -Cf. Attorney General Opinion MW-321
(1981).
Your second question ir,quiresvhether a corporation, if elected
to the board, may designate as its representative a person vho is not
himself a licensed bondsman. Article 2372p-3 defines the relevant
terms:
Sec. 2. In this Act:
(1) 'Person' .aeans an individual or cor-
poration.
(2) 'Bondsman' :means any person who for hire
or for any compensation deposits any cash or bonds
or other securities, or executes as surety or
cosurety any bond for other persons. (Emphasis
added).
Under these definitions, a bondsman is an individual or corpora-
tion which for hire or for s,ny compensation deposits any cash, bonds,
or other securities or executes as surety or cosurety any bond for
other persons. See also V.I.C.S. art. 2372p-3, S14A(a) (referring to
a corporation as a "bail bowlsman"). Sections 3(b) and 3(d) of the
act contain separate requirements of eligibility for the licensing of
individuals and the 1icensin:Iof corporations.
Since a corporation is a person, it is a bondsman, and if a
corporation is licensed in the county, we believe it is a licensed
bondsman within the meaning of section S(b)(6). Thus, we conclude
that a corporation licensed under the act is a legal entity which may
be a member of a county ba:t:Lbond board if elected by other county
licensees.
The Texas Business Corporation Act directs the board of directors
to manage the business and affairs of a corporation. Tex. Bus. Corp.
Act, art. 2.31. The act als,>provides that the officers and agents of
a corporation shall perform duties in the management of the
corporation vhich are provitied in the bylaws or which are determined
and delegated by the board oE directors in accordance with the bylaws.
Tex. Bus. Corp. Act, art. 2.42.B. Since a corporation functions
through its directors, officers, and agents, we believe a corporation
serving as a member of a bail bond board does so through the
individual vho represents it on the board. The corporation is the
board member. Its representative on the board is an authorized agent
of the corporation and is not a member of the board in his individual
capacity. We do not adliress the question of whether it is
constitutionally permissible Ear a corporation to be elected and serve
as a member of a board of this nature. With this caveat, we conclude
that a licensed corporation say be a licensed bondsman and a member of
a bail bond board and that such a corporation's authorized agent is
the representative of the corporation and not the member of the board,
p. 1042
Honorable Mike Driscoll - Page 3 (m-232)
regardless of whether the agent representing the corporation is a
licensed bondsman.
Your third question a;sks when a judgment against a corporate
surety becomes final. Artj,cle22.10 of the Code of Criminal Procedure
provides the following:
When a forfeiture has been declared upon a bond,
the court or cle,:kshall docket the case upon the
scire facias or upon the civil docket, In the name
of the State o:f Texas, as plaintiff, and the
principal and his sureties, if any, as defendants;
and the proceedi:rgshad therein shall be governed
by the same rule:1governing other civil suits.
Article 22.14 of the Code of Criminal Procedure reads, in part. as
follows:
When, upon a trial of the issues presented, no
sufficient cause is shown for the failure of the
principal to appear, the judgment shall be made
final against h:.m and his sureties, if any, for
the ‘amount in which they are respectively
bound. . . .
Section 14A of article 2372p-3, however. includes the following
requirements:
(a) Notwithstanding any law to the contrary, a
corporation that: is in default on five or more
bail bonds in ,L county may not act as a bail
bondsman in that ,county.
(b) The clerk of the court in which the
corporation is in default on a bail bond shall
deliver a written notice of the default to the
sheriff, chief of police, or other appropriate
peace officer in the county in which the bond is
forfeited.
(c) A corpox,ationis considered in default on
a bail bond from the time the trial court enters
its final judgs& on the scire facias until the
judgment Is sa,?.sfied or set aside. (Emphasis
added).
Also, section 2 of article 17.11 of the Code of Criminal Procedure
states that
any person who has signed as a surety on a bail
bond and is in &fault thereon shall thereafter be
disqualified to sign as a surety so long as he is
Honorable Mike Driscoll - Page 4 (a-232)
in default on said bond. It shall be the duty of
the clerk of the court wherein such surety is in
default on a bail bond, to notify In writing the
sheriff. chief of uolice. or other peace officer,
of such default. . A surety shall-be deemed in
default from the time the trial court enters its
final judgment oi the scire facias until such
judgment is satil~iied or set aside. (Emphasis
added).
You indicate that your third question results from the fact that
a corporate surety that is Ln default on five or more bail bonds in a
county may not act as a t~a.11bondsman in that county. Hence, we
believe that the issue is not when the scire facias judgment against
the surety is final but when the court enters its final judgment on
See Burns v. Harris County Bail Bond Board, 663
the scire facias. ---
S.W.Zd 615, 616 (Tex. App. -'Houston (1st Dist.] 1983. no writ).
In 1978, the Texas Supreme Court said:
Judges render judgment; clerks enter them on the
minutes. Coleman v. Zap& 105 Tex. 491. 151 S.W.
1040 (1912). The entry of a judgment is the
clerk's record :Ln the minutes of the court.
'Entered' is synoaymous with neither 'Signed' nor
'Rendered.' --
Bostwick v. Bucklin, 144 Tex. 375,
190 S.W.2d 818 (lM5); Polls v. Alford, 267 S.W.2d
918 (Tex. Civ. App. - San Antonio 1954. no writ).
The day a judge signs an order is frequently,
perhaps usually, efter the time the judgment is
rendered and surely it is before the judgment is
entered.
Burrell v. Corneliu=. 570 S.W.2d 382, 384 (Tex. 1978). A recent court
of appeals case, holding that a judgment is rendered when the decision
is officially announced, quaIcedfrom Kittrell v. Fuller, 281 S.W. 575,
576 (Tex. Civ. App. - Dallas 1926, writ ref'd). as follows:
There is a distinction between the rendition of
the judgment and its entry in the minutes of the
Court; each representing a distinct occurrence of
fact in the trial 'ofa case. The judgment is that
which the Court 'pronounces,and its rendition is
the judicial act by which the Court settles and
declares the decision of the law upon the matters
at issue. The entry of the judgment is the
ministerial act performed by the Clerk of the
Court, and by means of which permanent evidence of
the judicial act in rendering the judgment is made
a record of the Court.
r
p. 1044
lionorableMike Driscoll - Pqge 5 (JM-232)
Abarca v. Roadstar Corp. of America. 657 S.W.Zd 327. 328 (Tex. App. -
Corpus Christi 1982. no vr:::). See also Morris v. State, 539 S.W.2d
215 (Tex. Civ. App. - Rousc:on [Ist Dist.] 1976, no writ); Rosenfield
V. Hull, 304 S.W.Zd 571 (:Tex. Civ. App. - Texarkana 1957. vrit
dism’
Morris V. State, mi at 216, held that the terin “entered” in
article 5547-39a. V.T.C.S., providing that a person ordered committed
could appeal an order of temporary hospitalization by filing written
notice of appeal within :fiivedays after the “order is entered,”
referred to the ministeria:.act of the clerk in entering judgment In
the minutes. Likewise, we wnclude that the statutes providing that a
corporate surety is In default on a bail bond “from the time the trial
court enters its final judgment on the scire facias” refers to the
time at which the judgment is entered in the minutes of the court. Of
course, once a trial court enters a final judgment of default, a
corporate surety can presuwbly suspend the execution of the judgment
pending -appealby filing a supercedeas bond. Tex. R. Civ. P. 364(a).
Like any judgment, a judgment revoking a license may be suspended vhen
a supercedeas bond is filed. Tex. R. Civ. P. 364(e). Setting bond is
ministerial and may be compelled by mandamus. Continental Oil Co. v.
Lesher. 500 S.W.2d 183, 1315 (Tex. Civ. App. - liouston [lst Dist.]
1973, no writ). An appellate court can review the bond for
excessiveness. Tex. R. Civ. P. 365(b).
SUMMARY
An individual who continues to be a licensed
bondsman in the county does not forfeit his
position as a member of the ball bond board by
conveying to a t,h,irdparty a business which the
individual previ,xlsly operated under an assumed
name. A corporar:ionlicensed in the county Is a
licensed bondsman which may be a member of a
county bail bond hoard if elected by other county
licensees. Such a corporation’s representative on
the board Is an agent of the corporation and is
not a member of the board in his individual
capacity. A corporate surety is in default on a
bail bond from the time of entry of the scire
facias judgment j,o,
the minutes of the court.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Gweral
t-l.
1045
Hooorable Mike Drjscoll - Paga 6 (JM-232)
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpln, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Morllinger
Nancy Sutton
p. 1046