Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 12, 2008
The Honorable Jana A. Jones Opinion No. GA-0663
271st Judicial District Attorney
Jack and Wise Counties Re: Whether the members ofa discretionary bail
101 North Trinity, Suite 200 bond board may dissolve the board
Decatur, Texas 76234 (RQ-0687-GA)
Dear Ms. Jones:
Occupations Code section 1704.052 authorizes the creation of a county bail bond board "in
a county with a population of less than 110,000 if a majority of the persons who would serve as
members ofthe board ... or who would designate the persons who would serve as members ofthe
board, determine to create a board." TEX. OCC. CODE ANN. § 1704.052 (Vernon 2004). It appears
that in Wise County, which has a population of fewer than 110,000, a bail bond board has been
created under section 1704.052. 1 You ask whether "members of a discretionary bail bond board
[created under section 1704.052] can dissolve the said bail bond board by [a] majority vote of the
statutory members or a quorum thereof." Request Letter, supra note 1, at 1. If chapter 1704 does
not authorize the dissolution, you also ask about the "law [that] must be followed to achieve that end
if so desired[.]" Id at 2.
Chapter 1704 of the Occupations Code provides for bail bond boards to regulate the bail
bond2 industry in "a county with a population of ... 110,000 or more; or ... less than 110, 000
in which a board is created." TEX. OCC. CODE ANN. § 1704.002 (Vernon 2004); see ide
§§ 1704.051-.052. In a county that has a bail bond board, "a person may not act as a bail bond
suret~ or as an agent for a corporate surety in the county unless the person holds a license issued
lSee Letter from Honorable Jana A. Jones, 271st Judicial District Attorney, Jack and Wise Counties, to
Honorable Greg Abbott, Attorney General ofTexas (Mar. 12, 2008) (on file with the Opinion Committee, also available
at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
2"'Bail bond' means a cash deposit, or similar deposit or written undertaking, or a bond or other security, given
to guarantee the appearance of a defendant in a criminal case." TEX. OCC. CODE ANN. § 1704.001(1) (Vernon Supp.
2008).
3 A "bail bond surety" is a person who "executes a bail bond as a surety or cosurety for another person; or ...
for compensation deposits cash to ensure the appearance in court of a person accused of a crime." Id § 1704.001(2);
see also id § 1704.001(5) ("'Person' means an individual or corporation.").
The Honorable Jana A. Jones - Page 2 (GA-0663)
under chapter [1704]." Id § 1704.151; see also id. § 1704.163 (Vernon Supp. 2008) (attorney
exemption). The statute itself creates a bail bond board in a county "with a population of 110,000
or more." Id § 1704.051 (Vernon 2004). In counties with a population of fewer than 110,000,
however, creation of a bail bond board is authorized, but not required: "A board may be created in
[such a county] if a majority of the persons who would serve as members of the board ... or who
would designate the persons who would serve as members ofthe board, determine to create a board."
Id. § 1704.052 (emphasis added).4
As you note, chapter 1704 makes no provision for, or allusionto, the dissolution of a bail
bond board. See id §§ 1704.001-.306 (Vernon 2004 & Supp. 2008); Request Letter, supra note 1,
at 2. Thus, the issue here is whether a "discretionary bail bond board," as you describe it, may
nevertheless dissolve itself if a majority of the board members wish to do so. See Request Letter,
supra note 1, at 1-2.
While no court has considered specifically a bail bond board's authority to dissolve, the
courts have said that a political subdivision authorized to be created pursuant to legislative authority
may be dissolved only pursuant to legislative authority. See Ringling v. City ofHempstead, 193 F.
596, 599 (5th Cir. 1911); Harness v. State, 13 S.W. 535, 537 (Tex. 1890); Largen v. State ex rei.
Abney, 13 S.W. 161, 163 (Tex. 1890); Watts v. Double Oaklndep. Sch. Dist., 377 S.W.2d 779, 780
(Tex. Civ. App.-Fort Worth 1964, no writ). As the Texas Supreme Court has described it, "'[t]he
state creates such [municipal] corporations for public ends, and they will and must continue until the
legislature annuls or destroys them, or authorizes it to be done.'" Largen, 13 S.W. at 162 (quoting
1 Dill. Mun. Corp. § 167); see also Ringling, 193 F. at 599 ("It is well settled that a municipal
corporation can only be dissolved by legislative action."); Harness, 13 S.W. at 537 (stating that
"[m]unicipal corporations can be created only in the manner provided by law, and when created must
continue until abolished in some legal method"). This principle applies to political subdivisions
other than cities. School districts, for instance, are "authorized and chartered by the State" and as
"creatures ofthe State ... can be destroyed only by their creator." Watts, 377 S.W.2d at 780 (citing
King's Estate v. Sch. Trs. ofWillacy County, 33 S.W.2d 783,784 (Tex. Civ. App.-San Antonio
1930, writ refd)); see Amer. Liberty Oil Co. v. State, 125 S.W.2d 1107, 1109 (Tex. Civ.
App.-Texarkana 1939, no writ) (holding that "[s]chool districts are local public corporations ofthe
same general character as municipal corporations[; t]hey are quasi-municipal corporations").5
4A bail bond board consists ofthe following generally described persons: (1) the sheriffor a designee from the
sheriffs office; (2) a district judge ofthe county with criminal jurisdiction or a designee; (3) the county judge, a county
commissioner, or a designee; (4) a county court or county court at law judge with criminal jurisdiction or a designee;
(5) the district attorney or assistant district attorney; (6) a licensed bail bond surety or agent for a corporate surety; (7)
a justice of the peace; (8) the district clerk or the clerk's designee; (9) the county clerk with criminal matter
responsibilities or the clerk's designee; (10) a presiding judge of a municipal court if appointed by the bail bond board;
(11) the presiding judge or a municipal judge ofthe municipal court system ifthe county's principal city designates the
presiding judge for such a system; (12) the county treasurer, the treasurer's designee, or the person designated by the
commissioners court to perform the treasurer's duties; and (13) a criminal defense attorney practicing in the county. Id
§ 1704.053.
5See also Tex. Att'y Gen. Op. Nos. GA-0621 (2008) at 3 (concluding that "[w]ithout authorization, the [Kerr
County Airport] Authority may not be dissolved"); JC-0220 (2000) at 2 (concluding that a hospital district could not
dissolve pursuant to an election because there was no statutory authority to calland hold a dissolution election), WW-395
(continued...)
The Honorable Jana A. Jones - Page 3 (GA-0663)
While a bail bond board is not a political subdivision, it is a legal entity whose creation is
-authorized by the Legislature for public ends. See Dallas County Bail Bond Bd v. Mason, 773
S.W.2d 586, 587 (Tex. App.-Dallas 1989, no writ); Dallas County Bail Bond Bd v. Stein, 771
S.W.2d 577, 579 (Tex. App.-Dallas 1989, writ denied). A bail bond board has been described as
a "legal entity through which the county performs its governmental function." Mason, 773 S.W.2d
at 587. It has also been described as a "governmental agent ofthe county for purposes ofregulating
the bail bond industry." Stein, 771 S.W.2d at 579. And it has been described as an "administrative
agency." 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.).
And, as is the case with political subdivisions, the Legislature generally provides for the
dissolution of public legal entities whose creation the Legislature authorizes. 6 This includes legal
entities that the Legislature authorizes (like the bail bond board here), rather than requires, political
subdivisions to create. 7 As noted by the Dallas court of appeals in a 1931 case involving an
insurance company: "The policy in this state with reference to the dissolution and winding up ofthe
affairs ofits legal entities, as manifested by the acts ofthe Legislature, is that the right to bring about
such results belongs exclusively to the state ...." State v. Robinson, 42 S.W.2d 457,458 (Tex. Civ.
App.-Dallas 1931, writ ref d). The Legislature's express provisions for dissolution oflegal entities
indicates that the (1) authority to dissolve is not inherent or implied in the authority to create such
entities and (2) when desired, the Legislature knows how to provide it.
As you observe, chapter 1704 does not specifically authorize the dissolution of a bail bond
board by a vote ofthe board or by any other method. Nor does any provision in chapter 1704 suggest
that the Legislature intended or contemplated such dissolution once a bail bond board is created. Cf
Pruettv. Harris County Bail Bond Bd., 249 S.W.3d447, 454 (Tex. 2008) ("We ascertain legislative
intent concerning the [Harris County Bail Bond] Boards'authority from the plain and common
5(... continued)
(1958) at 3 (explaining that absent specific authority and procedure, an inactive junior college district could not be
dissolved).
6See, e.g., TEX. AGRIc. CODE ANN. § 74.127 (Vernon Supp. 2008) (authorizing the dissolution of the official
cotton growers' boll weevil eradication foundation); TEX. GOV'T CODE ANN. § 441.131 (b) (Vernon 2004) (authorizing
regional library systems to provide for the dissolution ofa nonprofit corporation created by the systems); ide § 481.024(d)
(authorizing the Texas Economic Development Corporation's board of directors to dissolve the corporation); ide §
2306.558 (Vernon 2000) (authorizing the Texas State Affordable Housing Corporation's board of directors to dissolve
the corporation); TEX. HEALTH & SAFETY CODE ANN. § 221.081 (Vernon 2001) (authorizing the local sponsoring entity
that has created a health facilities development corporation to dissolve the corporation); TEX. Loc. GOV'T CODE ANN.
§ 303.101 (Vernon 2005) (authorizing sponsoring governing entity that has created a public facility corporation to
dissolve the corporation); id § 327.351 (a) (Vernon 2005) (authorizing a county to dissolve a county zoological operation
and maintenance board); TEX. NAT. REs. CODE ANN. § 62.161(a) (Vernon 2001) (authorizing county to call an election
to dissolve beach park board of trustees); TEX. TRANSP. CODE ANN. § 22.159 (Vernon 1999) (authorizing constituent
agencies incorporating a nonprofit airport facility fmancing corporation to dissolve the corporation); TEX. Loc. GOV'T
CODE ANN. § 394.026(a) (Vernon 2005) (authorizing a housing fmance corporation's board ofdirectors to dissolve the
corporation).
7See supra note 6.
The Honorable Jana A. Jones - Page 4 (GA-0663)
meaning ofthe statute granting such authority."). First, while in a county with a population offewer
than 110,000 the Legislature has granted the discretion to create a bail bond board, we do not find
and you do not direct us to any provision in the statute or other law indicating that such a county or
its bail bond board has the concomitant discretion to dissolve the board. Cf TEX. OCC. CODE ANN.
§ 1704.052 (Vernon 2004) (discretionary creation of board). Second, chapter 1704 contains no
provisions for winding up the affairs ofa bail bond boardS or making a transition to the very different
scheme that would govern the taking of a bail bond in a county without a bail bond board,9 as would
reasonably be expected if the Legislature contemplated the dissolution of a bail bond board. See
TEX. GOV'T CODE ANN. § 311.021(3) (Vernon 2005) ("In enacting a statute, it is presumed that
... ajust and reasonable result is intended[.]"); see also Font v. Carr, 867 S.W.2d 873, 880 (Tex.
App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.) (describing the predecessor to Occupations
Code 1704 as "a comprehensive statutory regulatory scheme that applies to the business of writing
bail bonds"); Tex. Att'y Gen. Ope No. JC-0541 (2002) at 2 (stating that Code of Criminal Procedure
chapter 17 generally governs the '''taking of bail bonds on a bond-by-bond basis"').
8There is no provision in chapter 1704 for revocation or cancellation ofa bail bond license or for the disposition
of the related security deposited or executed because of the dissolution of the bail bond board. See TEX. OCC. CODE
ANN. §§ 1704.0()1-.306 (Vernon 2004 & Supp. 2008); see also Int'l Fidelity Ins. Co. v. Wise County Bail Bond Bd,
83 S.W.3d 257,260 (Tex. App.-Fort Worth 2002, no pet.) ("Appellants [insurance companies], duly licensed by the
[bail bond] board to write bail bonds in Wise County, thereby acquired a property right that has constitutional
protection." (citing Smith v. Decker, 312 S.W.2d 632, 633 (Tex. 1958))). Occupations Code chapter 1704 provides for
the licensing of bail bond sureties and requires a sheriff to accept bail bonds executed by license holders that have
satisfied the requirements of the statute, including the deposit or execution of security. See TEX. OCC. CODE ANN. §
1704.201 (Vernon 2004). As security for executing bail bonds, a license holder must deposit with the county treasurer
a cashier's check, certificate of deposit, or cash ofnot less than $50,000 or execute in trust to the bail bond board a deed
to nonexempt real property with a value of not less than $50,000. See ide § 1704. 160(a)-(d), (i) (Vernon 2004). The
security deposited or executed may be withdrawn and returned ifthe license holder "(A) ceases to engage in the bonding
business; (B) ceases to maintain the license; and (C) presents a release by the board; and ... no judgment or bond
liability, actual or potential, is outstanding against the license holder." Id § 1704.210. Chapter 1704 specifies the
grounds for discretionary and mandatory suspension or revocation of a license, including for failure to maintain the
required security amount. 'See id §§ 1704.252 (discretionary licenses suspension or revocation: grounds), .253
(mandatory license suspension or revocation: grounds).
9Chapter 17 ofthe Code ofCriminal Procedure governs the taking ofbail in a county without a bail bond board.
See Castaneda v. Gonzalez, 985 S.W.2d 500, 502-03 (Tex. App.-Corpus Christi 1998, no pet.); Font v. Carr, 867
S.W.2d 873, 882 (Tex. App.-Houston [1 st Dist.] 1993, writ dism'd w.o.j.); Tex. Att'y Gen. Ope No. GA-0288 (2004)
at 1. Unlike Occupations Code chapter 1704, Code ofCriminal Procedure chapter 17 does not require a person to obtain
a license to act as a bail bond surety nor does it require a deposit ofa fixed sum to secure the execution of bail bonds.
Chapter 17 authorizes "every court, judge, magistrate or other officer" taking a bail bond to "require evidence of the
sufficiency ofthe security offered." TEX. CODECRIM. PROC. ANN. art. 17.11, § 1 (Vernon 2005). Article 17.11 provides
that "one surety shall be sufficient" if the surety is "worth at least double the amount ofthe 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
ofthis state, and has property therein liable to execution worth the sum for which he is bound." Id But the officer taking
the bail bond may require an affidavit attesting to the surety's worth. I dart. 17.13. And 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. Article 17.141 permits the sheriff to "post a list of eligible bail bond sureties whose security has been
determined to be sufficient," but each such listed surety "must file annually a sworn fmancial statement with the sheriff."
Id art. 17.141 (Vernon Supp. 2008).
The Honorable Jana A. Jones - Page 5 (GA-0663)
In sum, as a general matter, public legal entities authorized to be created by legislative
authority may be dissolved only pursuant to similar legislative authority. A bail bond board is a
public legal entity. Chapter 1704 does not authorize the dissolution of a bail bond board or suggest
that the Legislattire intended or contemplated the dissolution of a bail bond board. In the absence
of legislative authority, a bail bond board is not authorized to dissolve itself by a majority vote of
the members or a quorum thereof or by any other method. Dissolution authority, ifdesired, must be
sought from the Legislature.
The Honorable Jana A. Jones - Page 6 (GA-0663)
SUMMARY
Occupations Code chapter 1704 creates a bail bond board in
a county with a population of 110,000 or more and authorizes the
creation of a bail bond board in a county with a population of fewer
than 110,000. Because neither chapter 1704 nor another law
authorizes it, a bail bond board created in a county with a population
of fewer than 110,000 may not dissolve itself by a vote of the
members of the board or by another method.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee