Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
August 31, 1982
MARK WHITE
Attorney General
Honorable Bill M. White Opinion No. NW-507
Supreme Court Building Criminal District Attorney
P. 0. Box 12548
Bexar County Courthouse Re: Who may be licensed under
AusIin. TX. 78711-254
512/4752501 San Antonio, Texas 78205 Bail Bondsman Licensing Act,
Telex 9101S74~1367 article 2372p-3, V.T.C.S.
Telecooier 512f47502S5
Dear Mr. White:
1547 Main St.. Sui%e 14W
Dallas. TX. 752014709 You ask several questions concerning licensing of bail bondsmen
214742.a944 under the terms of article 2372p-3. V.T.C.S. You first ask whether a
partnership, sole proprietorship, or other business entity may be
licensed to operate as a bail bondsman under a single license.
4824 Alberta Ave.. Suite 150
Section 3(a) of article 2372p-3. V.T.C.S.. provides that no person may
El Paso. TX. 79905.2793
915f5333484 act as a bondsman except "persons" licensed under the act and persons
licensed to practice law. Section 2(l) defines "person" as an
individual or corporation; it no longer includes "other business
1220 Dallas Ave., Suite 2fi2 entities, and associations of persons" as it did prior to the
Houston. TX. 770024985
amendment of article 2372p-3 in 1981. Thus, only an individual or a
71316%0655
corporation may currently obtain a license under article 2372p-3,
V.T.C.S. This interpretation of the current statute is reinforced by
808 Broadway. Suite 312 the fact that subsections 3(b) and (d) of the act describe licensing
Lubbock, TX. 79401-3479 eligibility for individuals and corporations, but no such description
acw47.5230
is included for other business entities. Both the definition of
"person" and the lack of eligibility; standards for other business
4349 N. Tenth. Suite 8 entities indicate that the legislature intended that only individuals
McAIlan, TX. 78501-1685 and corporations be licensed to operate as bail bondsmen under the
512/6&?.4547 terms of article 2372p-3, V.T.C.S. This opinion does not address the
question of whether one or more individuals, each licensed separately
200 Main Plaza. SuiW400 in the capacity of an individual surety , may structure their business
San Antonio. TX. 782052797 as a partnership, sole proprietorship, or other business entity; it
512/225-4191 addresses only the question of who may obtain a license.
An Equal Opportunityl
You next ask whether "persons" who are licensed under article
Affirmstiw Action Employer 2372p-3 are authorized to have agents or employees sign bail bonds on
behalf of the licensee. Because the statutory definition of "person"
includes both individuals and corporations, the answer to your
question depends on whether the licensee is an individual or a
corporation.
If the licensee is an individual, the statute neither prohibits
nor authorizes the licensee to have agents or employees sign the bail
p. 1826
I I
Honorable Bill M. White - Page 2 (HW-507)
bonds in the licensee’s behalf. However, article 17.08 of the Code of
Criminal Procedure requires the bond to be signed by the name or mark
of the surety. This statute has been interpreted as requiring the
surety to sign the bond personally, rather than to have the attorney-
in-fact for the surety sign the bond. See Ex parte Meadows, 87 S.W.2d
254 (Tex. Grim. App. 1935); Attorney seral Opinion WW-889 (1960).
Article 2372p-3, V.T.C.S., provides no exception to article 17.08 of
the Code of Criminal Procedure when the surety Is an individual.
Therefore, an individual licensee cannot appoint an agent to sign
bonds on its behalf. While such an appointment would not clearly
violate article 2372p-3, V.T.C.S.. it would violate article 17.08.
Code of Criminal Procedure, when the surety is an individual.
However, section 7(c) of article 2372p-3. V.T.C.S., does allow a
corporation’s agent, who has been designated and authorized as such by
a power of attorney filed with the office of the county clerk, to
execute bail bonds in the corporation’s behalf. The corporation must
be qualified to act as a bondsman, and it must also designate its
agent and obtain a separate license. on behalf of each designated
agent. The court in Ex parte Meadows, e, recognized the power of
corporations to execute bail bonds through agents authorized to do so
in accordance with the provisions of the statute regulating such
practices. Thus, article 2372p-3. V.T.C.S., permits a corporate
surety to have bonds signed by its authorized and .licensed agent, but
it does not permit an individual surety to do the same; the individual
surety remains bound by the requirements of article 17.08 of the Code
of Criminal Procedure.
Finally, you ask whether a corporation may designate a separate
business entity as its agent and thereby allow several employees of
the business entity to execute bail bonds without obtaining a license
for each employee. Section 7(c), article 2372p-3. V.T.C.S.,
authorizes a corporation to designate an agent to execute bail bonds
on behalf of the corporation. but no definition of the term “agent” is
provided. The statute does not specifically prohibit a separate
business entity from being designated as the corporation’s agent. It
simply requires that a corporation acquire a separate license for each
agent operating under a power of attorney. In the absence of a
specific prohibition against a business entity agent, the corporation
is free to appoint the business entity as agent. See generally James
N. Tardy Company v. Tarver, 39 S.W.2d 848 (Tex. 1931).
Only an insurance company is authorized to act as a corporate
surety in Texas. See Freedom. Inc. v. State, 569 S.W.2d 48 (Tex. Civ.
APP . - Austin 1978,no writ). Therefore, if guch corporate surety
does appoint another business entity as its agent to execute bail
bonds and that agent subsequently causes its own agents or employees
to execute the bonds, then the corporate surety must obtain a license
on behalf of each of the secondarily appointed agents or employees who
p. 1827
Honorable Bill M. White - Page 3 (``-507)
“. .
,....
,,‘. “,.;:>.‘.. “~
will actually':``exe&te'&he bonds., ~,Ssction 7(c) of article 2372p-3,
V.T.C.S., claar'lj'%&qii~i.res
a.'se&rate license for each agent executing
bail bonds &beli$lf ,of,thecoiporate surety. This separate-licensing
requirement ,:wouih'.``.~be.i,,cfrctlnnrenred
if the corporate surety could
appoint one licensed ~business entity agent, which in turn could
appoint several unlicensed agents, each executing bonds on behalf of
the same corporate surety. When the employee of a licensed business
entity is engaged in activities that subject a person to the licensing
requirements and that are grounds for regulation, then the corporate
surety must obtain a separate license for each employee either acting
in the capacity as an agent or attorney-in-fact for that insurance
company. Morrow v. State, 147 S.W.2d 248 (Tex. Crim. App. 1941). The
corporate surety must obtain a license on behalf of each individual
who is functioning as the surety's agent, because that is precisely
the activity that triggers the separate licensing requirement.
Whether there is an intermediate entity between the surety and the
agent actually executing the bonds is irrelevant to the question of
whether the agent must be licensed.
SUMMARY
Only corporations and individuals may be
licensed to act as bail bondsmen, according to
article 2372p-3. V.T.C.S. A licensed corporate
surety may have authorized agents to sign bonds in
its behalf, but an individual surety may not do
so, according to article 17.08 of the Code of
Criminal Procedure. A licensed corporate surety
is not prohibited from designating a separate
business entity as its agent for executing bail
bonds; however, the corporate surety must obtain a
separate license on behalf of each individual who
ultimately acts as the surety's agent by executing
the bail bonds.
MA Rii WHITE
Attorney'General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
p. 1828
*
. Honorable Bill M. White - Page 4 (Mw-507)
Prepared by Charmaine Rhodes
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Charmaine Rhodes
p. 1829