Untitled Texas Attorney General Opinion

1’ OFFICE OF THE ATTORNLY GENERAL . ST.I\TE OF TEXAS
JOHN CORNYN
August 7,2002
The Honorable Danny Buck Davidson Opinion No. JC-0541
Criminal District Attorney
123d Judicial District Re: Whether a sheriff in a county that does not
110 South Sycamore have a bail bond board has the authority to post in
Carthage, Texas 75633 the county jail a list of preapproved bondsmen
(RQ-05 17-JC)
Dear Mr. Davidson:
You ask whether a sheriff in a county that does not have a bail bond board has the authority
to post in the county jail a list of preapproved bondsmen. We conclude that a sheriff is not
authorized to post such a list.
You ask about the authority of a sheriff in a county that has not established a bail bond board
under chapter 1704 of the Occupations Code. That chapter creates a board in each county with a
population of 110,000 or more, and authorizes, but does not require, the establishment of a board in
less populated counties. See TEX. OCC. CODEANN. $0 1704.002-.052 (Vernon 2002). In a county
with a bail bond board, only a person who holds a license from the board may act as a bail bond
surety in the county, with the limited exception of an attorney who represents the person in the
criminal case for which the bond is given. See id. 8 8 1704.15 1, .163. The sheriff must accept the
bonds of sureties licensed by the bail bond board. See id. 9 1704.201. The bail bond board must
post “in each court having criminal jurisdiction in the county, and shall provide to each local official
responsible for the detention of prisoners in the county, a current list of each licensed bail bond
surety and agent of the bail bond surety in the county.” Id. 8 1704.1 OS(a). In addition, chapter 1704
permits but does not require the posting of such a list in the county jail. See id. § 1704.105(b) (“A
list of each licensed bail bond surety in a county may be displayed where prisoners are examined,
processed, or confined.“).
In a county without a bail bond board, the taking of bail bonds is generally governed by
chapter 17 of the Code of Criminal Procedure. See id. 8 1704.002; see also Castaneda v. Gonzalez,
985 S.W.2d 500,503 (Tex. App.-Corpus Christi 1988, no writ) (in county where no bail bond board
has been created, chapter 17 of the Code of Criminal Procedure controls the taking of bail bonds in
that county). As chapter 17 governs the taking of bail bonds in the county at issue, we examine its
provisions in some detail.
The Honorable Danny Buck Davidson - Page 2 (JC-0541)
Chapter 17 authorizes an officer taking a bail bond to “require evidence of the sufficiency
of the security offered.” TEX.CODECRIM.PROC.ANN. art. 17.11,§ 1 (Vernon 1977). The sufficiency
of the security offered by a surety is governed by articles 17.11 through 17.14. One surety shall be
sufficient if
such surety is worth at least double the amount of the sum for which
he is bound, exclusive of all property exempted by law from
execution, and of debts or other encumbrances; and that he is a
resident of this state, and has property therein liable to execution
worth the sum for which he is bound.
Id. The officer taking the bail bond may require an affidavit attesting to the surety’s worth. Id. art.
17.13. Article 17.14 provides that the officer may require further evidence “if the . . . officer taking
the bail bond is not fully satisfied as to the sufficiency of the security offered . . . .” Id. art. 17.14.
Under article 17.11, a person who has signed as a surety on a bail bond and is in default is
disqualified to sign as a surety “so long as he is in default on said bond.” Id. art. 17.11,§ 2 (Vernon
supp. 2002).
Chapter 17 generally governs the taking of bail bonds on a bond-by-bond basis. A person
acting as surety must be a Texas resident and offer sufficient security. See id. art. 17.11, § 1 (Vernon
1977). A person is disqualified to act as surety on a bond if in default on a prior bond. See id. art.
17.11,§ 2 (Vernon Supp. 2002). With these exceptions, chapter 17 does not set forth qualifications
for sureties. While articles 17.11 through 17.14 give an officer taking a bail bond broad discretion to
determine whether the security offered by a surety is sufficient, see Tex. Att’y Gen. Op. No. DM-483
(1998) at 6 (Code of Criminal Procedure articles 17.11,17.13 and 17.14 authorize sheriff taking bail
bond to consider other bonds executed by surety), “chapter 17 does not require a person to obtain
a license to be eligible to act as a surety nor does it authorize an officer taking a bond to require a
surety to be licensed,” Tex. Att’y Gen. LO-98-105, at 2-3. Furthermore, the authority to assess the
sufficiency of the security offered is vested in “[elvery court, judge, magistrate or other officer
taking a bail bond,” TEX. CODEGRIM.PROC.ANN. art. 17.11, 0 1 (Vernon 1977); see also id. arts.
17.20-.22 (provisions governing when a peace officer may set and take bail); chapter 17 does not
vest any special authority in the sheriff.
And importantly, the authority of an officer taking a bond under chapter 17 of the Code of
Criminal Procedure is even more limited with respect to some corporate sureties. An officer taking
a bond lacks authority under articles 17.11 and 17.13 to question the solvency of a corporate surety
authorized to do business in Texas by the Department of Insurance. See Int ‘IFid. Ins. Co. v. Sherzjjf
ofDallas County, 476 S.W.2d 115 (Tex. Civ. App.-Beaumont 1972, writ ref’d n.r.e.); see also Tex.
Att’y Gen. Op. No. M-l 060 (1972) (article 17.11, section 1 does not limit total number or amount
of bail bonds corporate surety may make).
Both a judicial opinion and an opinion of this office have expressly concluded that these
Code of Criminal Procedure provisions do not authorize a sheriff to adopt rules imposing a licensing
The Honorable Danny Buck Davidson - Page 3 (JC-0541)
system for bail bond sureties akin to that set forth under chapter 1704 of the Occupations Code. See
Castaneda v. Gonzalez, 985 S.W.2d 500 (Tex. App.-Corpus Christi 1998, no writ); Tex. Att’y Gen.
LO-98-l 05. In Castaneda, the court noted that “[i]n counties where a bail bond board exists, the
board may only adopt such rules as are authorized by and are consistent with statutory authority, and
may not adopt rules which impose additional burdens, conditions, or restrictions in excess of or
inconsistent with statutory provisions.” Castaneda, 985 S.W.2d at 504 (citing 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); Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App.-San
Antonio 1980, no writ)). An officer taking bail bonds under chapter 17 of the Code of Criminal
Procedure “is prohibited from adopting rules which exceed statutory authority in the same way bail
bond boards” governed by chapter 1704 of the Occupations Code are limited to adopting rules
authorized by and consistent with chapter 1704. Castaneda, 985 S.W.2d at 504.
The court in Castaneda concluded that the sheriffs authority to require evidence of the
sufficiency of the security offered by bondsmen under articles 17.11 and 17.14 authorized the sheriff
to require bondsmen to fill out an application form. See id. at 503. However, the sheriff lacked
authority to impose substantive requirements not authorized by articles 17.11 and 17.14:
The rules requiring bondsmen to accept suspension of their authority
to write bonds when in litigation concerning forfeitures and agree to
indemnify the Sheriff for expenses and attorney fees in any litigation
with him are unrelated to the sufficiency of the security offered, and,
therefore, the Sheriff has no authority to impose these requirements
under articles 17.11 and 17.14. Similarly, there is no authority for the
Sheriff to require the pledging of certain collateral. Under article
17.14, if the Sheriff is not satisfied with the sufficiency of the security
offered, further evidence shall be required. To require bondsmen to
actually pledge collateral, as the Sheriff seeks to do in this case, goes
beyond the statutory authority to require further evidence, and is
therefore impermissible.
Id. (citation omitted).
You ask whether a sheriff is authorized by chapter 17 to post in the county jail a list of
preapproved bondsmen. You explain that bondsmen in your county submit “an application for proof
of sufficiency of security” to the county sheriff.’ The list ofpreapproved bondsmen “is derived from
the application process.” Request Letter, supra note 1, at 2. The sheriff supplies inmates with this
list and local telephone books: “Inmates are not limited to the list and may contact any person,
attorney, firm, company, surety, or bondsman they wish.” Id. at 1.
‘Letter from Honorable Danny Buck Davidson, Crirninal District Attorney, 123d Judicial District, to Honorable
John Comyn, Texas Attorney General, at 1 (received Feb. 27, 2002) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable Danny Buck Davidson - Page 4 (JC-0541)
We conclude that the posting of such a list exceeds the authority of a sheriff under chapter
17. Clearly, chapter 17 authorizes an officer taking a bond to require proof of the sufficiency of
security offered by the bondsmen, proof that the officer could require in the form of an application.
See Castaneda, 985 S.W.2d at 503 (“The rule requiring bondsmen to fill out an application form is
permissible under the Sheriffs authority to require evidence of the sufficiency of the security offered
by bondsmen.“). Arguably, chapter 17 might authorize a sheriff to preapprove bondsmen on a
voluntary basis, provided that the officer taking a bond from a preapproved bondsman verifies
that the bondsman’s security is still sufficient, see, e.g., TEX. CODECRIM.PROC.ANN. art. 17.11,
89 l- 2 (Vernon 1977 & Supp. 2002) (“any person who has signed as a surety on a bail bond and is
in default thereon shall thereafter be disqualified to sign as a surety so long as he is in default on said
bond”), and provided that those who have not been preapproved are not precluded from executing
bonds.
But no provision in chapter 17 expressly authorizes a sheriff to provide a list of preapproved
bondsmen to inmates, and we do not believe that this authority may be implied. Chapter 17 provides
authority for the taking of bonds in individual cases; it does not address the sheriffs provision of
information to inmates. Furthermore, as we have noted, a sheriff is not authorized to question the
sufficiency ofa state-regulated corporate surety’s security. SeeInt ‘IFid. Ins. Co., 476 S.W.2d at 120
(sheriff “does not have any discretion in the determination of the sufficiency of the surety when the
surety upon the bond tendered for approval is an insurance company authorized to-do fidelity and
surety business in Texas”). A list of bondsmen whose security has been preapproved by the sheriff
under chapter 17 would omit corporate sureties that might also be eligible to execute bonds in the
county. By contrast, the list of licensed bail bond sureties that chapter 1704 of the Occupations Code
permits to be displayed “where prisoners are examined, processed, or confined,’ includes every
surety eligible to execute bail bonds in the county. See TEX. OCC.CODEANN. $5 1704.105(b) (bail
bond surety list), .152 (licensing requirements for both individuals and corporations qualified to
write fidelity, guaranty, and surety bonds under the Insurance Code).
In sum, chapter 17 of the Code of Criminal Procedure does not provide a statutory basis for
a sheriff to provide a list of preapproved bondsmen to inmates. A sheriff has only those powers that
are provided by the legislature. See TEX. CONST.art. V, 8 23 (sheriffs “duties, qualifications,
perquisites, and fees of office[] shall be prescribed by the Legislature”). We have not located any
other statute that expressly or impliedly provides such authority. The sheriffs position as the keeper
of the county jail authorizes the sheriff to provide individuals who are arrested in the county and
detained in the county jail with information that will enable them to contact potential bondsmen, to
facilitate their release on bail. See TEX. LOC.GOV’T CODEANN. 0 35 1.041 (Vernon 1999) (sheriff
is the keeper of the county jail); see also TEX. CONST.art. 1, 8 11 (right to bail). The sheriff may
provide detainees with telephone books and may compile and provide detainees with a
comprehensive list of all persons who wish to execute bail bonds in the county. But the authority
to provide information does not authorize a sheriff to provide information that distinguishes between
preapproved and other potential sureties. Accordingly, we conclude that a sheriff is not authorized
to post in the county jail a list of preapproved bondsmen.
The Honorable Danny Buck Davidson - Page 5 (JC-0541)
SUMMARY
A sheriff in a county that does not have a bail bond board is
not authorized to post in the county jail a list of preapproved
bondsmen.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee