Untitled Texas Attorney General Opinion ( 1984 )

a ‘. I. . ? . The Attorney General of Texas M MATTOX December 13, 1984 ttorney General ~pr~mr Coun Building Ronorablc Luther .Ioncs opinion No. 313-251 0. Box 1254E El PASO County Attorney Jslin.TX.7S711-2549 201 City-County Bvllding Rc: Authority of the El Paso 21475.2501 El Paso, Texas 7’3901 Basil Bond Board to define the aI*; 9101874-1297 term “designee” in article Mcopiw 51214750299 2372p-3, V.T.C.S. !4 Jackson.sUil9700 DeAr lb. Jones: allas. TX. 752024500 :U742.8944 You Inquire vhether the El PASO County Bail Bond Board his authority to sdol~t a rule which defines or limits the term “designee” 124Allmta Ave.. SuiN ISO as it appears In ikrticle 2372p-3, section S(b), V.T.C.S. We conclude PIso. TX. 799052793 that the board’s adoption of a rule that adds additional qualifiu- IYSU-3484 tions for certain membership on the board exceeds the powers delegated to the board by the legislature. Al 1*xar. Suit* 700 wsmn, TX. 77002-3~11 Section 5(b) of article 2372p-3 provides the following: ‘3122~5es9 (b) The County Bail Bond Board shall be compos’~J of the following pcrsone: (I) the county sheriff or his designee; (2) district A judge of the county having xx rd.Term. Suit* S jurisdiction over criminal mattera designated !C*,,.n. TX. 7S501.lSS5 121682.4547 by the presiding judge of the administrative judicial district; m Main plus. Sui1e400 (3) the county judge or a member of the an ~ntonio. TX. 79205.2797 coamlssioners court designated by the county ‘U225-4191 jui!g;e: 1:4,) a judge of a county court or A county court at lew in the county having jurisdiction over criminal metters designated by the cola~irsinners court; (!i) the district Sttorney or his designee; (lj) a licensed bondsman. licensed in the county, elected by other county licensees; and n. 1120 -I . Honorable tuthot Jones - PA~B 2 (JM-251) . . (7) e justice of the peace. You advise us that the gl PABO County Bail Bond Boerd adopted A rule to limit a “designee” on thet boerd as follows: Designees to the Bell Bond Boerd shall be a person who is knovledge~a.ble of the matters within the StAtutory member1 Office end/or an employee of that department who could bo considered an Aa8iStAXlt. Article 2372p-3, sectfan S(f)(l) lllous e county bail bond board [t]o exercise any powers incidental or necessary to the administration of this Act, to supervise and regulate all phases of the bonding business and enforce thir. Act within the county, and to prescribe and post eny rules necereary to imple- meot this Act. . . . In exercising the rulemaking authority granted by the legialaturc, AO agency may promulgate rules and regulatioos which are constitutionel. are within the graoted plnrer, end are sdopted io accordance with proper procedure. Flowever, rules end regulations adopted by an agency in this state may not impose additiooal burdena. conditioos. or restrictions in excess of or inconsistent with, the authority granted to the agency by the legislature. See BexAr County Bsil Bond Board V. Deckard, 604 S.U.2d 214, ;!I,6 (Tex.xv. App. - Sao Antonio 1980, no iiiriL). See also Cerst v. Oak Cliff Savings 6 Loan Association. 432 S.W.Zd 702. 706 (T-1 Kee v. Baber. 303 S.W.Zd 376 (Tex. 1957). A cardinsl rule of st.ntutoty constructioo requires the COUrtS to ascertain sod be uuided br the intentloo of the legislature AS expressed in the statute. See City of Sherman v. Public Utility Cous&asion. 643 S.U.Zd 681, m (Tsx. 1983). We believe that it is not the intention of the Legislature to graot e bail bond board the authority to adopt the ~lo in questlon. - Sectioo S(b)(2)-(4) specifies that the designee of A presiding judge of the administrative judicial district must be “a district judge of the county having ‘jurisdiction over criminal UttCrS.” A designee of the county judge must be A mamber of the eoonisaioners court. and the designee of the cmiseioners court must be “a judge of a county Court or A county court at law in the County having juris- diction over criminal matters.” The statute does not include any specific qualifications fDr designees of the sheriff and district attorney. We believe that e court would find that the express mention in the statute of very par,::lcular qualifications for certain designees is tantamount to an express exclusion of qUSlifiCAtiOnS for all other p. 1121 .- _- . Honorable Luther Jonem - PSJ;C f (JM-2%) designees. A principal of statutory construction lkin to the uxir thar “the express mention of one thing implies the exclusion of another” is the principle t:het an agency may not by its ovn rules extend or add to the powers listed in the ntetute. Peterson v. Calvert, 473 S.W.Zd 314, 317 (Tex. Civ. App. - Austin 1971. vrit ‘m Ex parte McIver, 556 S.W.Zd 851; 856 (Ten. Grim. App. 1979). See Bexar County B.11 Bond-Board v. Deckard, a; Attorney CcOerSl Opinion MU-324 (1961). Rsoce. we conclude that the legislature intended to retain for i,tself the determination of the 8peCifiC qualifications oecessary for membership on a county bail bond board and did not delegate to I:he boards the power to impose additional qualifications. In the absence of statutory language indicating a legislative intent that a county bail bond board have the power to add to the qualifications specified by the legislature, it is our opinion that such a board lacks authori:y to adopt A rule which requires a designee of the sheriff or district attorney to be AO employee of the office of the appointing official DC A person knovledgeable of the matters within the statutory member’s office. SUMMARY A county bai:. bond board may not adopt a rule which requires Ihat a designee of the sheriff or dittrict attorwy who is to serve on the board shall be A person knowledgeable of the matters within the eppplntiog official’s office or an employee of the office. JIM MATTOX Attorney General of Texas TOMCREEp First Assistant Attorney General DAVID R. RICP!BDS Executive Assistant Attorney General RICK CILPIN Chairman, Opinion Comictee Prepared by F!ancy Sutton Assistant Attorney Cenerztl P m llonotablo Luthm Joam - Pq;et4 (Jl+251) APPROVRDD: OPINIONCOWITTC?i Rick Gilpin,Ghaiw GollnCarl suuu GJrriaon Tony Guillory Jio Noellinger JenniferRQ$s Nancy Sutton p. 1123