Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 2, 2007
The Honorable John R. Roach Opinion No. GA-0575
Collin County Criminal District Attorney
Collin County Courthouse Re: Whether a bail bond board may implement a
210 South McDonald, Suite 324 rule allowing a temporary extension ofthe license
McKinney, Texas 75069 expiration dates set forth in section 1704.162 of
the Occupations Code (RQ-0585-GA)
Dear Mr. Roach:
You ask whether a bail bond board may implement a rule allowing a temporary extension
of the license expiration dates set forth in Occupations Code section 1704.162. 1
In counties subject to chapter 1704 of the Occupations Code, such as Collin County, "each
phase ofthe bonding business in the county" is supervised and regulated by a bail bond board. TEX.
Occ. CODE ANN. § 1704.101(3) (Vernon 2004); see also ide §§ 1704.002, .051. 2 A person other than
an attorney may not act as a bail bond surety in such a county unless the person is licensed by the
county's board. See ide §§ 1704.151, .163 (Vernon 2004 & Supp. 2006). Under section 1704.162,
original and renewal licenses expire on the second anniversary of the issuance date, except that
persons meeting certain qualifications may renew a license for thirty-six months from the prior
expiration date. See ide § 1704. 162(a), (e) (Vernon 2004).
Applications to renew a license must be submitted no later than the thirty-first day before
the existing license expires, and bail bond boards must meet at least once a month. See id
§§ 1704.055(b), .162(b). You explain the board's desire to be able to accommodate the bail bond
surety who submits a renewal application that inadvertently omits statutorily-required information,
but whose license will expire before the next board meeting. See Request Letter, supra note 1, at
2-3. You inform us that the Collin County Bail Bond Board has promulgated a local rule, that if
ISee Letter from Honorable John R. Roach, Collin County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Apr. 16, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
2Chapter 1704 of the Occupations Code applies to counties of 110,000 or more and smaller counties in which
a board is created. See TEX. OCC. CODE ANN. § 1704.002 (Vernon 2004). The population of Collin County at the last
census was 491,675. See U.S. CENSUS BUREAU, 2000 CENSUS OF POPULATION, STATE & COUNTY QUIcKFACTS,
available at http://quickfacts.census.gov/qfd/states/48/48085.html (last visited Sept. 27, 2007).
The Honorable John R. Roach - Page 2 (GA-0575)
"the Board fails for any reason to act upon a renewal application prior to [a license's] expiration date,
a temporary permit may be issued pending final action." Id. at 2. You ask whether a bail bond board
may implement a rule that would allow a temporary extension of the expiration dates set forth in
section 1704.162. See ide Your request raises the possibility of three different types of rules: rules
authorizing the board (1) to issue a "permit," other than a chapter 1704 license, that allows a renewal
applicant to act as a bail bond surety after the applicant's license has expired; (2) to issue a
"temporary" chapter 1704 license; or (3) to temporarily extend the expiration date of a license that
is about to expire.
An administrative agency such as a bail bond board has only the rule-making authority that
the Legislature has expressly or impliedly conferred upon it. See R.~. Comm 'n ofTex. v. Lone Star
Gas Co., 844 S.W.2d 679,685 (Tex. 1992). Thus, such an agency may adopt a rule only if it is
authorized by and consistent with the agency's statutory authority. See Tex. Fire & Cas. Co. v.
Harris County Bail Bond Bd., 684 S.W.2d 177,178 (Tex. App.-Houston [14th Dist.] 1984, writ
refd n.r.e.); see also R.R. Comm 'n ofTex. , 844 S.W.2d at 685. A bail bond board may not adopt
a rule that "conflicts with or exceeds the statutory authority" ofchapter 1704. Tex. Fire & Casualty
Co., 684 S.W.2d at 178-79; accord Walstadv. Dallas County Bail Bond Bd., 996 S.W.2d 314, 317
(Tex. App.-Dallas 1999, no pet.);Austinv. Harris County Bail BondBd., 756 S.W.2d65, 67 (Tex.
App.-Houston [1 st Dist.] 1988, writ denied); Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d
214, 216 (Tex. Civ. App.-San Antonio 1980, no writ).
We first consider a bail bond board's legislative authority to promulgate rules. A bail bond
board has broad rule-making powers under section 1701.101, which authorizes a board to: "exercise
powers incidental or necessary to the administration of this chapter;" "supervise and regulate each
phase ofthe bonding business in the county;" and "adopt and post rules necessary to implement this
chapter." TEX. Occ. CODE ANN. § 1704.101(1), (3)-(4) (Vernon 2004). Also, a "county bail bond
board is responsible for all aspects of the licensing of bondsmen in that county, including granting,
denying, or renewing licenses." Harris County Bail Bond Bd. V. Blackwood, 41 S.W.3d 123, 124
(Tex. 2001); see also TEX. OCC. CODE ANN. §§ 1704.101(6) (issuing licenses), (7) (denying
licenses), 1704.162 (issuing or denying renewals) (Vernon 2004). Thus, a bail bond board has
general authority to promulgate local rules pertaining to licensing. See TEX. OCC. CODE ANN.
§ 1704.101(1), (3)-(4), (6)-(7) (Vernon 2004). Next, we consider whether the specific types ofrules
you propose would conflict with, or be consistent with, chapter 1704's licensing provisions.
Chapter 1704 does not authorize a "bail bond board to allow a person to act as a bail bond
surety by issuing a "permit" other than a chapter 1704 license. Under section 1704.151, a person
other than an attorney "may not act as a bail bond surety ... in the county unless the person holds
a license issued under this chapter." Id. § 1704.151 (emphasis added). And a person whose license
has expired does not hold a license under chapter 1704. See Smith v. Travis County Bail Bond Bd ,
559 S.W.2d 693; 694 (Tex. Civ. App.-Austin 1977, no writ) (concerning pre-code bail. bond
statutes). Thus, a rule whereby a bail bond board may issue a "permit" to a person to act as a surety
without a current chapter 1704 license conflicts with section 1704.151.
Rules purporting to allow temporary chapter 1704 licenses or temporary extensions ofprior
licenses would also conflict with chapter 1704. Under section 1704.162, licenses expire either
The Honorable John R. Roach - Page 3 (GA-0575)
after two years or thirty-six months depending on the circumstances. TEX. OCC. CODE ANN.
§ 1704. 162(a), (e)-(f) (Vernon 2004). And a license's expiration date must appear on the face of
the license. Id. § 1704.161(a). These statutes prohibit a board from granting either a temporary
license or a temporary extension of a license's expiration date.
Finally, you note that under section 1704.159, a bail bond board issues an order conditionally
approving an application, which becomes final once the applicant complies with security
requirements. See ide § 1704.159(a); Request Letter, supra note 1, at 2-3. You suggest that a rule
allowing a bail bond surety to engage in the bonding business while the surety cures deficiencies in
the surety's renewal application would be consistent with section 1704.159. Request Letter, supra
note 1, at 2-3. Under section 1704.159, however, a bail bond board may not conditionally approve
a legally deficient application. To the contrary, section 1704.159 requires a board to deny an
application "[i]f ... a ground exists to deny the application." TEX. OCC. CODE ANN. § 1704.159
(Vernon 2004). Failing to provide required information in an application is grounds for denial. See
Burns v. Harris County Bail BondBd, 971 S.W.2d 102,105-06 (Tex. App.-Houston [14th Dist.]
1998, no pet.). Thus, even by analogy, section 1704.159 is not support for a rule purporting to
authorize a surety with a deficient renewal application to continue in the bonding business after the
current license expires.
Moreover, section 1704.162, which specifically applies to license renewals, requires the
license holder to submit a renewal application that complies with the requirements for an original
license under section 1704.154. TEX. OCC. CODE ANN. § 1704.162(b)-(c) (Vernon 2004). A bail
bond board does not have authority to renew a license when the renewal application omits
information and items required by section 1704.154. See id §§ 1704.101(7), .154, .162(b)-(c); see
also Blackwood, 41 S.W.3d at 126-27 (stating that the statute's requirements are mandatory and a
court may not grant renewal when the application is incomplete). Because bail bond board rules
must not conflict with chapter 1704 of the Occupations Code, a board may not promulgate or
implement a rule allowing the board to issue temporary bail bond surety licenses or permits, or to
extend the expiration date of a prior license.
The Honorable John R. Roach - Page 4 (GA-0575)
SUMMARY
Under chapter 1704 of the Occupations ·Code, a bail bond
board does not have the authority to promulgate or implement a rule·
allowing the board to issue a temporary bail bond surety license or
permit, or to extend a prior license's expiration date.
Very truly yours,
KENT C. SULLIVAN
First Assistat,lt Attorney General
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee