Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 26, 2013
The Honorable Susan D. Reed Opinion No. GA-1019
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center Re: Whether advertising by a bail bond licensee in
300 Dolorosa, Fifth Floor a magazine that is distributed to pretrial detainees
San Antonio, Texas 78205-3030 held in the county jail, when the licensee has an
exclusive agreement that no advertisements from
other licensees will appear in the magazine, could
ever constitute unlawful "solicitation" in violation
of section 1704.304(c) of the Texas Occupation
Code (RQ-1118-GA)
Dear Ms. Reed:
You ask whether advertising by a bail bond licensee in a magazine that is distributed to
pretrial detainees held in the county jail, when the licensee has an exclusive agreement that no
advertisements from other licensees will appear in the magazine, could ever constitute unlawful
"solicitation" in violation of section 1704.304(c) of the Occupations Code. 1 You inform us that a
publisher seeks to distribute in Bexar County detention facilities a magazine that contains articles
of special interest to jail inmates as well as advertisements by lawyers and bail bond licensees.
Request Letter at 1-2. You note that the publisher offers an option for a bail bond licensee to
purchase exclusive advertising rights, thereby excluding the advertisements of any other licensee
in the area. /d.
You inform us that the Bexar County Bail Bond Board (the "Board") is concerned that
such an exclusive arrangement prejudices the ability of jail inmates to make informed decisions
in the choice of a surety. /d. at 4. You further state that the Board wishes to know whether
advertising pursuant to an exclusive arrangement may violate the anti-soliciting provisions of
section 1704.304(c) of the Occupations Code. /d. at 2. The Board has also asked, in clarification
of an attorney general opinion, whether advertising could ever constitute solicitation under the
statute. /d. at 1-2 (citing Tex. Att'y Gen. Op. No. GA-0502 (2007)).
Section 1704.304(c) of the Occupations Code provides: "A bail bond surety or an agent
of a bail bond surety may not solicit bonding business in a police station, jail, prison, detention
1
See Letter from Honorable Susan D. Reed, Bexar Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott,
Tex. Att'y Gen. at 2 (Mar. 28, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
Ms. Susan D. Reed - Page 2 (GA-1019)
facility, or other place of detainment for persons in the custody of law enforcement." TEX. Occ.
CODE ANN. § 1704.304(c) (West 2012). Central to the meaning of the statute is the word
"solicit," which is not a defined term. "Undefined terms in a statute are typically given their
ordinary meaning," unless "a different or more precise definition is apparent from the term's use
in the context of the statute." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439
(Tex. 2011).
This office noted in Attorney General Opinion GA-0502 that solicitation and advertising
are distinct concepts, but the opinion did not determine whether advertising could ever constitute
a solicitation prohibited by 1704.304(c). Tex. Att'y Gen. Op. No. GA-0502 (2007) at 2. 2
Indeed, when the Legislature has used the word "solicit" in statutes, the word's precise meaning
varies depending on the purpose of the statute, sometimes expressly excluding or including
certain forms of advertising. Compare TEX. PENAL CODE ANN.§§ 38.01(11), 38.12 (West 2011)
(defining "solicit employment," for purpose of barratry statutes, as certain in-person or
telephonic communications; expressly excluding "advertisements ... through public media"), 3
with TEX. EsT. CODE ANN. § 1356.001(1) (West 2012) (providing that '"Advertise' means to
solicit or induce the purchase of consumer goods or services through electronic or print media,
including: (A) radio; (B) television; (C) computer; or (D) direct mail"), TEX. Occ. CODE ANN. §
402.501(15) (West 2012) (providing that a hearing instrument licensee who "solicits a service by
advertising that is false or misleading" is subject to discipline), and id. § 952.003(4) (excluding
from definition of "lawyer referral service" lawyers who jointly "advertise ... to solicit clients
for those lawyers"). Thus, to determine whether a licensee's advertisement could ever violate
the anti-solicitation prohibition in section 1704.304(c), we must examine the plain language of
the statute "aided by the interpretive context provided by 'the surrounding statutory landscape."'
LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011) (quoting Presidio
Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010)).
The anti-solicitation prohibition of section 1704.304(c) of the Occupations Code appears
in the context of a statutory framework authorizing a bail bond board to "supervise and regulate
each phase of the bonding business in the county." TEX. Occ. CODE ANN. § 1704.101(3) (West
2012); see generally Pruett v. Harris Cnty. Bail Bond Bd, 249 S.W.3d 447, 452-53 (Tex. 2008).
"Bonding business" is defined as "the solicitation, negotiation, or execution of a bail bond by a
bail bond surety." TEX. Occ. CoDE ANN. § 1704.001(4) (West 2012). A board is specifically
authorized to regulate, within constitutional bounds, bail bond surety advertising and solicitation.
Id. § 1704.109(a); see also Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403, 416 (5th Cir.
2007) (declaring portions of section 1704.109 unconstitutional). Chapter 1704 reflects a special
concern about jails and other places of confinement, requiring a list of each licensed surety and
2
Answering the specific question asked, the opinion concluded that "section l704.304(c) does not prohibit
a bail bond licensee's display of advertising or licensee information on a vehicle in the parking lot of a county jail."
Tex. Att'y Gen. Op. No. GA-0502 (2007) at 2.
3
But see Bailey v. Morales, 190 F.3d 320, 325-26 (5th Cir. 1999) (holding that an amendment to Penal
Code section 38.12(a)(3) is unconstitutional as applied to chiropractors).
Ms. Susan D. Reed - Page 3 (GA-1019)
agent in a county to "be displayed at each location where prisoners are examined, processed, or
confined." TEX. Occ. CODE ANN. § 1704.105(b) (20 12). Moreover, jailers, law enforcement
officers, and other public officials are prohibited from recommending a particular bail bond
surety. !d. § 1704.304(b).
Unlike the barratry statutes, section 1704.304(c) does not expressly limit its prohibition to
in-person or telephonic solicitations, nor does it create an express exception for advertisements.
See id. Rather, section 1704.304(c) is limited to solicitations "in a police station, jail, prison,
detention facility, or other place of detainment for persons in the custody of law enforcement."
!d. § 1704.304(c). A court has observed that section 1704.304(c) does not limit prohibited
solicitations to any specific mode of communication nor require a surety or agent's physical
presence in the jail, provided a solicitation of business has occurred. See Webb v. State, No. 02-
02-432-CR, 2003 WL 21666630, at *1 (Tex. App.-Fort Worth Jul. 17, 2003, pet. refd) (mem.
op., not designated for publication). Thus, to answer your question, a court could conclude,
depending on the particular facts of the case, that a bail bond licensee's exclusive advertising in a
magazine that is distributed to pretrial detainees held in the county jail constitutes unlawful
"solicitation" in violation of section 1704.304(c) of the Texas Occupations Code. 4 Whether any
particular jailhouse advertisement constitutes an illegal solicitation is not a question we address
here.
4
We do not address whether the particular exhibits you have submitted may violate section l704.304(c) of
the Occupations Code, nor do we speculate about any other issues that might arise from enforcement of the
prohibition.
Ms. Susan D. Reed - Page 4 (GA-1019)
SUMMARY
A court could conclude, depending on the particular facts
of the case, that a bail bond licensee's exclusive advertising in a
magazine that is distributed to pretrial detainees held in the county
jail constitutes unlawful "solicitation" in violation of section
1704.304(c) ofthe Texas Occupation Code.
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee