Untitled Texas Attorney General Opinion ( 1988 )

,
THE ATTORSET GENERAL
OF TEXAS
bfxch 23, 1988
Honorable Fred G. Rodriguez Opinion No. JM- 875
Criminal District Attorney
200 Main Plaza, Suite 406 Re: Whether a bail bonds-
San Antonio, Texas 78205 man's security deposit
under article 2372p,
V.T.C.S., may be accepted
in the form of combina-
tion of cash and property
(RQ-1336)
Dear Mr. Rodriguez:
you ask whether the Bexar County Bail Bond Board may
accept from a bondsman applicant a combination of cash and
property to meet the required $50,000 security deposit
required by article 237213-3, V.T.C.S.
Section 6(f) of article 2372~3-3 provides in part:
(f) Upon notice from the [county bail
bond] board that the application has been
tentatively approved, the applicant shall
then:
(1) deposit with the county treasurer of
the county in which the license is to be
issued a cashier's check, certificate of
deposit, cash, or cash equivalent in the
amount indicated by the applicant under Sub-
division (5) of Subsection (a) of Section 6
of this Act but in no event less than
$50,000 except in counties with populations
of less than 250,000 persons by the most
recent federal census, the amount for
applicants in said counties shall be $10,000
to be held in a special fund to be called
the bail security fund; or
(2) execute in trust to the board deeds
to the property listed by the applicant
P
under Subdivision (4) of Subsection (a) of
Section 6 of this Act, which property shall
be valued in the amount indicated on an
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Honorable Fred G. Rodriguez - Page 2 04-875)
.
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appraisal by a member of the Society of Real
Estate Appraisers or a Member of Appraisal
Institute of the county in which it is
located, but in no event less than $50,000
valuation, except in counties with popula-
tions of less than 250,000 persons by the
most recent federal census, the amount for
applicants in said counties shall be
$10,000, the condition of the trust being
that the property may be sold to satisfy any
final judgment forfeitures that may be made
in bonds on which the licensee is surety
after such notice and upon such conditions
as are required by the Code of Criminal
Procedure, 1965, amended * bond
forfeiture cases: thzs board shLl1 %e the
deeds of trust in the records of each county
in which the property is located, and the
applicant shall pay the filing fees.
(Emphasis added.)
You state that your question has been prompted by the
submission by an applicant of a certificate of deposit for
$20,000 and non-exempt property, valued at $30,000.00, to
meet the $50,000 security deposit requirement. We under-
stand your question to be whether an applicant must meet
the security deposit requirement by complying with either
subsection f(1) or subsection f(2) or whether an applicant
may rely on a combination of the type of security identi-
fied in subsection f(1) and the type of security identi-
fied in subsection f(2) to meet the $50,000 requirement.
Section 5(f) of article 2372p-3 delineates the
authority of the county bail bond board as follows:
(1) To exercise any powers incidental or
necessary to the administration of this Act,
to supervise and regulate all phases of the
bonding business and enforce this Act within
the county, and to prescribe and post any
rules necessary to implement this Act:
(2) To conduct hearings and investiga-
tions and make determinations respecting the
issuance, refusal, suspension, or revocation
of licenses to bondsmen within the provi-
sions of this Act and to issue licenses to
those applicants who do not qualify, and to
suspend or revoke the licenses of licensees
who commit violations under this Act or the
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Honorable Fred G. Rodriguez - Page 3 (JR-875)
rules prescribed by the board under this
A&[.]
In Bexar Countv Bail Bond Board v. Deckard, 604
S.W.2d 214 (Tex. Civ. APP. - San Antonio 1980, no writ)
the rule-making authority of a county bail bond board was
in issue. In Deckard, the court stated:
The rule-making power delegated to the
board under the statute is merely the power to
make rules relating to the making and setting
of bail bonds in the county. There is no
language granting power to make rules relating
to the qualifications which must be met by
applicants for licenses. A reasonable inter-
pretation of the statutory language supports
the conclusion that no such power may be
implied. . . . [The statute1 desianates the
persons to whom licenses are to be issued,
and the desianation is in terms of oersons
who ou 1 fv under the terms of the statute.
(Emphazii added.)
- 604 S.W.2d at 217.
An agency may not by its own rules extend or add to
the powers listed in the statute. Attorney General
Opinion 374-251 (1984).
We think that section 6(f) defines a board's
authority to accept deeds of property in trust to meet the
security deposit requirement. An applicant desiring to
act as a bondsman in Bexar County may execute a deed to
property to satisfy the security deposit requirement, but
in no event may the property be valued at less than
$50,000. Therefore, we do not think that the board has
authority to accept a deed to property valued at less than
$50,000.
Also, the word "or-" in ordinary and natural use has a
disjunctive meaning. Burnett v. State, 514 S.W.2d 939,
940 (Tex. Crim. App. - 1974).
Black's Law Dictionary defines the word gror~t as
follows:
A disjunctive particle used to express an
alternative or to give a choice of one among
P
two or more things. It is also used to
clarify what has already been said, and
in such cases, means 'in other words,' 'to
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Honorable Fred G. Rodriguez - Page 4 (m-875)
, wit,' or 'that is to say.' The word 'or' is
to be used as a function word to indicate an
alternative between different or unlike
things. Citv of Toledo v. Lucas County
Budaet Commission, 33 Ohio St. 2d 62, 294
N.E.2d 661, 663. In some usages, the word
'01' creates a multiple rather than an
alternative obligation: where necessary in
interpreting an instrument, 'or' may be con-
strued to mean 'and.' Atchison v. Citv of
Enalewood. Colo., 568 P.2d 13, 18.
Black#s Law Dictionary 987 (5th ed. 1979).
In Weir v. Bauer, 286 P. 936 (Utah 1930) the Utah
Supreme Court, in addressing the meaning of the word 'or'
in a statute, stated:
But the word 'and' can never be substituted
for 'or' in a statute when the meaning of
the language used in the statute is clear
and there is nothing in it to call for the
substitution.
286 P. at 945.
Therefore, we read section 6(f) as permitting a
bondsman in Bexar County to satisfy the security deposit
requirement by executing a deed to real property only in
accordance with the specific terms of section 6(f)(2).
Thus, the Bexar County Bail Bond Board may not accept from
a bondsman applicant a combination of cash and real
property to meet the required $50,000 security deposit
required by article 2372p-3, V.T.C.S.
SUMMARY
The Bexar County Bail Bond Board may not
accept from a bondsman applicant a certi-
ficate of deposit for $20,000 and a deed to
real property valued at $30,000 to meet the
$50,000 security deposit requirement under
article 2372p-3, V.T.C.S.
L-l-h
Very truly yo ,
.
JIM MATTOX
Attorney General of Texas
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Honorable Fred G. Rodriguez - Page 5 (JM-875)
h
MARY KELLER
First Assistant Attorney General
LOU MCCRFARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4269