Untitled Texas Attorney General Opinion

P.
THE ATTORSEY GENERAL
OF TEXAS
December 29, 1986
Honorable Lloyd Criss Opinion No. JM-598
Chairman
Committee on Labor and Employment Re: Whether a city official
Relations may engage in the writing of
Texas House of Representatives bail bonds
P. 0. Box 2910
Austin, Texas 78769
Dear Representative Criss:
You ask whether a city official who receives remuneration from
the city or county may engage in the writing of bail bonds.
Specifically, you inform us that
[t]he current superintendent in charge of streets
in Madisonville, Texas, is also engaged in the
writing of bail bonds in Madison County.
We assume that the superintendent is responsible for the construction
and maintenance of city streets. Because you ask specifically about
the current superintendent in charge of streets, we will limit our
discussion to that particular office. We conclude that, as a matter
of law, the superintendent in charge of streets is not prohibited by
virtue of his employment with the city from engaging in the writing of
bail bonds. We do not decide whether there is any conflict as a
matter of fact, &, whether the superintendent in charge of streets
may faithfully execute the duties of his office and, at the same time,
engage in the writing of bail bonds. Such a determination involves
the resolution of an issue of fact which we are not empowered to make.
You inform us that Madisonville is a general law city; accor-
dingly, it is governed by the general laws. specifically articles 961
et seq., V.T.C.S. See Woolridge v. Folsom, 564 S.W.2d 471 (Tex. Civ.
APP. - Dallas 1978, no writ). General law cities are creatures of
statute and have no powers except those expressly or impliedly granted
by the statute creating them. City of Uvalde v. Uvalde Electric & Ice
Co., 250 S.W. 140 judgment adopted (Tex. Comm'n App. 1923); Dibrell v.
City of Coleman, 172 S.W. 550 (Tex. Civ. App. - Austin 1915, writ
ref'd). Article 977, V.T.C.S., authorizes the creation of
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Honorable Lloyd Criss - Page 2 (JM-598)
-,
such other officers and agents as the city council
may from time to time direct, who may either be
appointed or elected as provided by ordin-
ance. . . .
We assume. that the position of "superintendent in charge of streets"
is such an office.
Article 2372p-3, V.T.C.S., provides for the licensing and
regulation of bail bondsmen. The act creates a county bail bond board
in each county having a population of more than 110,000 according to
the last federal census; in counties of less than 110,000, the
creation of the board lies within the discretion of a majority of the
officers of the county who would constitute members of the board.
V.T.C.S. art. 2372p-3, 583, 5. The population of Madison County,
according to the last federal census, is less than 110,000. We have
been informed that the officers of Madison County have not created
such a board. Accordingly, the regulation and licensing pursuant to
article 2372p-3 of bail bondsmen in Madison County falls without the
ambit of the act.
In counties not falling within article 2372p-3, V.T.C.S., the
qualifications of bail bondsmen are determined by recourse to other
statutory provisions. Article 17.06 of the Code of Criminal Procedure
provides that
[wlherever in this Chapter, any person is required
or authorized to give or execute any bail bond,
such bail bond may be given or executed by such
principal and any corporation authorized by law to
act as surety, subject to all the provisions of
this Chapter regulating and governing the giving
of bail bonds by personal surety insofar as the
same is applicable.
Article 2.01 of the Business Corporation Act, article 8.01 of the
Insurance Code, and the above-quoted section of the Code of Criminal
Procedure, taken together, permit two types of surety on bail bonds.
It seems clear to us that the legislature, when it
made the comprehensive revision of the bail bond
statutes, permitted two types of surety upon bail
bonds: individuals and insurance comoanies. No
statute of general application vested in aF
agency the right to determine the sufficiency of
individual sureties and that determination was
entrusted to the discretion of the approving
official. As to the corporate surety, there was a
statute of general application which vested the
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Honorable Lloyd Criss - Page 3 (JM-598)
determination of the sufficiency of the insurance
companies as sureties upon the State Board of
Insurance.
International Fidelity Insurance Company of Newark, New Jersey V.
Sheriff of Dallas County, 476 S.W.2d 115, 119 (Tex. Civ. App. -
Beaumont 1972, writ ref'd n.r.e.). We can find no provision in either
the Code of Criminal Procedure, the Business Corporation Act, or the
Insurance Code which would preclude a city officer from engaging in
the writing of bail bonds in the situation you describe. We turn next
to the body of law governing public officers in order to determine
whether there is in that body of law any legal impediment to an
officer engaging in such activity.
This office has in the past been called upon frequently to decide
whether an officer of a political subdivision may contract with the
political subdivision of which he is an officer. The general rule was
that, absent a specific statutory prohibition, such contracts were
invalid where there was a conflict of interest. See, e.g., Attorney
General Opinion JM-99 (1983); ``-236, MW-124 (1980); MW-34 (1979);
H-624 (1975); H-354 (1974). In Attorney General Opinion JM-99 we
discussed the common law prohibitions against conflicts of interest
and concluded that
as long as there is no conflict of interest, self-
dealing, or potential for dereliction of duties,
we believe that as a general proposition, a county
official or employee may contract with the county
through the commissioners court for services or
materials which are furnished by that county
employee in his private capacity and which are
separate and wholly unrelated to his official
county duties.
This general conclusion has been modified by the enactment of article
988b. V.T.C.S., which became effective January 1, 1984.
In this instance, however, the city official is engaged in
business, not with the city, but with private individuals. HIS
private business is unrelated to his official duties. We have found
no statute, nor have you directed us to one, which imposes restric-
tions comparable to article 988b on public officers engaged in private
business with private individuals. But see Penal Code art. 39.01.
Accordingly, we conclude that the superintendent in charge of city
streets is not precluded as a matter of law from engaging in the
writing of bail bonds. We do not address whether there is any
conflict as a matter of fact, i.e., whether the superintendent in
charge of city streets may faithfully execute the duties of his office
and, at the same time, engage in the writing of bail bonds.
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Honorable Lloyd Criss - Page 4 (JM-598)
SUMMARY
The superintendent in charge of streets for the
city of Madisonville is not precluded as a matter
of law from engaging in the writing of bail bonds.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWKR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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