Untitled Texas Attorney General Opinion ( 1963 )

RNLCY GENERAL. XAS September 24, 1963 Honorable W. C. Lindsey Opinion NO. C- 146 Criminal District Attorney Jefferson County Re: Whether a married woman Beaumont, Texas may' legally be a surety on the various types of bonds used by the Sheriff's Department and related Dear Mr. Lindsey: question. The questions submitted In your letter of September 10, 1963, are as follows: "Whether or not a married woman may legally be a surety on the various types of bonds used by the Sheriff's Department? If so, may her exempt separate property and/or community property be levied on in the event of a forfeiture?" Article 4624 of Vernon's Civil Statutes has recently been amended by the 58th Legislature to read as follows: "Upon the trial of any suit based upon a contract of the wife, the court shall de- cree that judgment may be levied upon her separate'property, upon revenues from her separate property, or upon her personal earnings, . . .' Article 4626 of Vernon's Civil Statutes has been amended to read: "A married woman shall have the same powers and capacity as if she were a feme sole, in her own name, to contract and be contracted with, sue and be sued, and all her separate property, her personal earnings and the revenues from her separate estate -709- Honorable W. C. Lindsey, page 2 (C- 146 ) which is not exempt from execution under the laws of Texas shall thereafter be sub- ject to her debts and be liable therefor, and her contracts and obligations shall be binding on her." (Emphasis added) Article 4621 of Vernon's Civil Statutes has been amended to read as follows: "The community property of the husband and wife,,other than the personal earnings of the wife and the revenues from her separ- ate property, shall not be liable for debts or damages resulting from contracts of the wife, except for necessities furnished her- self and children, unless the husband joins in the execution of the contract;.provided that her rights with reference to the com- munity property on permanent abandonment by the husband shall not be affected by this provision." A bond is defined in Texas Jurisprudence Second "an obligatory Instrument in wrlting.whereby one binds %&self to pay a sum of money or to do some other act. Any Instrument In writing that legally binds a person to do a certain thing may be called a bond; In this sense the term implies nothing more than a contra~ct." 9Tex.Jur.2d 420, Bonds, Sec. 1. Article 4626, quoted abov~e,clearly gives a married woman the power to contract in her own name. That Article also makes a married woman's separate property, per- sonal earnings, and non-exempt revenues from her separate estate liable for her debts. particle 4624, quoted above, makes the separate property, personal ea~rnlngs,and revenues from her separate property subject to execution to satisfy her debts. Under Article 4621, quoted above, the community property other than the personal earnings of the wife and the revenues from her.separate property, would not be liable for the contracts of the wife without the joinder of the husband, except for necessities furnished herself and children. It is the opinion of this office that a bond is a contract within the purview of Article 4626 and that a mar- ried woman may legally be a surety on the various types of bonds used by the SherIffIs Department.without the joinder of her husband. However, such a bond would bind only the sep- arate property, personal earnings, and non-exempt revenue -710- Honorable W. C. Lindsey, page 3 (C- 146 ) from the separate estate of the married woman. A bond entered into by the wife alone could not bind the community property, other than the personal earnings of the wife and the revenues from her separate property. SUMMARY A married woman may legally be a surety on the various types of bonds used by the Sheriff's Department. A married woman may bind her separate property on such a bond but she may not bind the community property other than the personal earnings of the wife and the revenues from her separate property without the joinder of her husband. Yours very truly, WAGGONER CARR Attorney General Jack G. Norwood Assistant JGN:mkh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Corbin Lee Snow, Jr. Paul Robertson Jerry Brock Gordon Appleman APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone, -711-