Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Ocwber 3, 1984
JIM MATTOX
Attorney General
Suoremo Court Suildinq
Honorable Tim Curry Opinion No. JM-206
P. 0. BOX 1254S - Criminal District Attorney
Austin. TX. 78711. 254S Tarrant County Courthouse Re: Whether a county bail
5121475.2501 Fort Worth, Texas 76102 bond board may limit the
Telex QlM87ClM7
number of bail bond licenses
Telecopier 51214750266
granted in that county
714 Jackson. Suite 700 Dear Mr. Curry:
Dallas. TX. 75202.4506
214i742.W44
You ask whether article 2372p-3, V.T.C.S.. grants the Tarrant
County Bail Bond I;oard authority to limit the number of bail bond
4524 Alberta Ave.. Suite 180 licensees in Tarr,iut County. You inform us that the act, vhich in
El Paso. TX. 79905-2793 section S(f) (1) gr’ants county bail bond boards the authority “to
91515353484 supervise and regul.ate all phases of the bonding business,” has been
read to include tlw power to promulgate rules limiting the number of
licenses granted by the board. The quoted language was added to
article 2372p-3 in 1981 and, you suggest, may be the legislative
response to -- Bexar I:ounty Bail Bond Board v. Deckard, 604 S.W.2d 214
(Tex. Civ. App. - .;an Antonio 1980. no writ). In Deckard, the court
of civil appeals ruled that a bail bond board may not Impose require-
806 Broadway, Suits 312
Lubbock. TX. 79401.3479
ments on applicanc:rl for licenses in addition to those prescribed by
KW747-5238 the legislature. Despite the coincidence of this case and the
seemingly broad l.egislative reaction to it. you contend that the
stronger argument is that the Tarrant County Bail Bond Board is
4309 N. Tenth. Suite B
vithout authority to limit the number of licenses it issues. We agree
McAlla”. TX. 78501-1885
5,2/882-4547
with your conclusion and answer your question accordingly.
Pursuant to :lts police pover, the legislature may properly
200 Main Plaza, Suite 400 delegate to a boari: or agency the power to grant, refuse, revoke, or
San Antonio. TX. 782052797
cancel licenses regulating businesses and occupations. Trimble v.
51242254191
State Board of Registration for Professional En ineers, 483 S.W.Zd 275
(Tex. Civ. App. - Elert. denied, 412
An Equal Opportunityl U.S. 920 (1978). Such .power , however, may only be exercised as
Attifmative Action EmPloYel expressly granted by statute or necessarily Implied therefrom.
Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961). Thus,
this office has p;eviously concluded that in pursuit of its lawful
duties, a bail bond board may investigate an applicant’s reputation
for honesty, truthtulness. fair dealing, and competency. Attorney
General Opinion H-$41 (1974). However, in enacting any necessary
rules or regulations, a licensing board “may not act contrary to but
only consistent with. and in furtherance of, the expressed statutory
p. 926
Ronorable Tim Curry - Page 2 (JM-206)
purposes.” American Liberty Insurance Co. v. Ransau, 481 S.W.2d 793,
796-97 (Tex. 1972). Whethex-a bail bond board may limit the number of
licensees in a county, therefore, must be determined by reference to
statute.
A review of article 3!372p-3 reveals no provision expressly
granting the power sought by the Tarrant County Bail Bond Board. Nor,
we believe, can such authority be implied from the act. As noted
above, article 2372p-3 was :;ignificantly amended in 1981. See Acts
1981, 67th Leg., ch. 312!, at 875. The amendments were Tf ered
primarily to facilitate the ,:ollection of unpaid bond forfeitures, to
require more detailed information concerning an applicant’s financial
background, to require adec,t.ate amounts of cash or property surety,
and to delineate “the manrmsr in which a license may be refused,
suspended, revoked, or cancelled.” Bill Analysis to Senate Bill No.
727, prepared for House C,xmuittee on Criminal Jurisprudence, 67th
Leg., 1981. filed in Bill File to Senate Bill No. 727, Legislative
Reference Library. Consequently, it is unmistakably clear that the
legislature sought to “strengthen the authority of County Bail Bond,
Boards so they may regulate the bail bond business more properly.”
& It is equally apparent, however, that in accomplishing this the
legislature did not intend to bestov on these entities the unbridled
discretion to grant or refuse applications on grounds not found in
article 2372p-3.
Article 2372p-3 requires the bail bond board “to issue licenses
to those applicants who qualify under the terms of this Act.” Sec.
5 (0 (2). In addition, if “the board is satisfied that no grounds
exist on which to refuse the application, the board shall enter an
order tentatively approving the application,” provided the applicant
subsequently satisfies the security requirements of the act. Sec.
6(e). Section 9(a). meanwhILe, provides that a board may only deny a
license “to any person who t,as not complied with the requirements of
this Act for applying for ,an original or renewal license.” It is
obvious, then, that althou:I:r the county bail bond board is charged
with the duty of regulating “all phases of the bonding business,” the
board is not accorded authcrity to establish a ceiling on the number
of licenses it shall issue.
Since no limitation on the number of bail bond licensees is
authorized by article 2372p-3, any attempt by the Tarrant County Eail
Bond Board to engraft such a limitation on the act by rule would fall
squarely within the prohibition of the Deckard decision. The
rule-making power of the b:r:ll bond board under the act was strictly
construed by the court of civil appeals in that case and, in our
opinion, remains unaffected hy the 1981 amendments to the statute:
The rule-making pqxrer delegated to the board under
the statute is rurely the power to make rules
p. 927
Eonorable Tim Curry - Page 3 (JM-206)
relating to the: making and setting of bail
bonds. . . .
The legislature has carefully set out the
requirements whict; must be met by applicanta for
bail bond licencws. . . . The function of the
bail bond board :LII to administer the statute. not
to amend it. at Least in the absence of statutory
language 1ndicati.r.g a legislative intent that the
board should hz.ve the power to add to the
qualifications enumerated by the legislature.
Deckard. supra at 217.
We are reminded that I:he policy of this state with regard to the
bail bond business is
to provide --
reasor.rble regulation to the end that
the right of bai:. be preserved and implemented by
lust and practicsJ procedures governing the giving
or making of bail bond and other security to
guarantee appeara-Ice of the accused. (Emphasis
added).
V.T.C.S. art. 2372p-3, 81. The act provides no standard upon which to
base the limitation contraplated by the Tarrant County Bail Bond
Board. Without direction from the statute. the board might be
encouraged to regulate ar'~Ltrarily, a practice the legislature has
taken pains to eliminatc~. Moreover, it is conceivable that a
predetermined limit on the number of bail bond licenses issued would
erode, rather than preserve:, the right of bail.
SUMMARY
Article 2372~4, V.T.C.S.. does not authorize
the Tarrant County Bail Bond Board to limit the
number of bail bc1r.d licensees in Tarrant County.
Jr&
HATTOX
Attorney General of Texas
TOMGREEN
First Assistant AttONey Gweral
p. 928
Iionorable Tim Curry - Page 1 (JM-206)
DAVID R. RICRARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINIONCOHMIlTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
P. 929