Untitled Texas Attorney General Opinion ( 2003 )


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  •                                ATTORNEY GENERAL OF TEXAS
    GREG        ABBOTT
    July 29,2003
    The Honorable Tim Curry                                  Opinion No. GA-0089
    Tarrant County Criminal District Attorney
    Justice Center                                           Re:     Whether     Occupations    Code, section
    401 West Belknap                                         1704.304, providing that certain persons may not
    Fort Worth, Texas 76196-0201                             recommend a bail bond surety, an attorney, or a
    law firm to a criminal defendant, precludes those
    persons from furnishing a list of attorneys or bail
    bond sureties (RQ-0022-GA)
    Dear Mr. Curry:
    You ask us to interpret provisions that respectively prohibit (1) a bail bond surety from
    recommending an attorney or law firm to the surety’s client, and (2) various public officers and
    employees from recommending a particular bail bond surety to another person.’ See TEX. OCC.
    CODE ANN. 8 1704.304(a)-(b) (V emon 2003). You ask whether these statutes merely prohibit a
    single recommendation and allow a list containing multiple attorneys or bondsmen to be distributed,
    or whether they prohibit the affected persons from making any recommendations,           including
    recommending several attorneys or bail bond sureties. See Request Letter, supra note 1, at 1.
    A “bail bond surety” is a person who (1) “executes a bail bond as a surety or cosurety for
    another person,” or (2) “for compensation deposits cash to ensure the appearance in court of a person
    accused of a crime.” TEX. Oct. CODE ANN. 8 1704.001(2) (Vernon 2003). Occupations Code,
    chapter 1704, enacted to implement the right ofbail by just and practical procedures, authorizes each
    county to license and regulate bail bond sureties in the county. See 
    id. ch. 1704;
    Smith v. Tarrant
    County Bail Bond Bd., 
    997 S.W.2d 870
    , 871 (Tex. App.-Fort Worth 1999, pet. denied); see also
    Robinson v. Hill, 507 S.W.2d 521,523 (Tex. 1974) (citing purpose clause in article 2372p-3, TEX.
    REV. CIV. STAT. ANN., predecessor of Occupations Code, chapter 1704). The statute creates a
    county bail bond board (“board”) in every county with a population of 110,000 or more and
    authorizes the creation of a board in a county with a smaller population. See TEX. OCC. CODEANN.
    9 8 1704.05 l-.052 (Vernon 2003); see also 
    id. 8 8
    1704.10 1 (board’s powers), 1704.102 (enforcement
    authority). In a county with a bail bond board, such as Tar-rant County, no one may act as a bail bond
    surety without holding a license issued under chapter 1704. See 
    id. 5 1704.15
    1; Tex. Att’y Gen. Op.
    No. GA-0058 (2003).
    ‘Letter from Tim Curry, Criminal District Attorney, Tarrant County, Texas, to Honorable Greg Abbott, Texas
    Attorney General, at 1 (Feb. 28,2003) (on file with Opinion Committee) [hereinafter Request Letter].
    The Honorable Tim Curry - Page 2                 (GA-0089)
    You inquire about section 1704.304(a) and (b). Subsection (a) provides that a bail bond
    surety or the surety’s agent “may not recommend or suggest to a person for whom the bail bond
    surety executes a bond the employment of an attorney or law firm in connection with a criminal
    offense,” while subsection (b) prohibits various public officers and employees from recommending
    “a particular bail bond surety to another person.” 
    Id. § 1704.304(a)-(b).
    The list ofpublic officers
    and employees in subsection (b) includes a police officer, sheriff, constable, jailer, enforcement
    agency, a judge, and an employee of a court. See 
    id. 9 1704.304(b).
               Violation of section
    1704.304(a) or (b) is a Class B misdemeanor. See 
    id. fj 1704.304(e).
    You ask whether “these statutes prohibit only a single recommendation, while allowing a list
    containing   multiple attorneys or bondsmen         to be distributed, or do they prohibit any
    recommendations,    no matter how numerous,” of attorneys or bondsmen. Request Letter, supra note
    1, at 1. Stating the question another way, you ask “if a bail bond surety provides a list of five
    attorneys for his client’s consideration,      has he avoided violating the prohibition      by not
    recommending a single attorney, or has he committed a fivefold violation of the statute?” 
    Id. In construing
    section 1704.304(a) and (b), we attempt to give effect to the legislature’s intent.
    See TEX. GOV’T CODEANN. 5 9 3 11.02 1, .023 (Vernon 1998); Mitchell Energy Corp. v. Ashworth,
    
    943 S.W.2d 436
    , 438 (Tex. 1997). To do so, we construe each provision according to its plain
    language. SeeRepublicBankDallas,      N.A. v. Interkal, Inc., 691 S.W.2d 605,607-08 (Tex. 1985); see
    also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999) (where codified statute
    is unambiguous, plain meaning rule applies even if codification is inconsistent with its statutory
    predecessor). “Words and phrases shall be read in context and construed according to the rules of
    grarnmar and common usage.” TEX. GOV’T CODEANN. § 3 11 .Ol 1(a) (Vernon 1998).
    We address section 1704.304(b) first. It states that a list of public officers and employees,
    most of them associated with the courts or the jails, “may not recommend a particular bail bond
    surety to another person.” TEX. OCC. CODEANN. § 1704.304(b) (Vernon 2003) (emphasis added).
    Your question suggests that the word “particular”might mean “single” or “only one” and that section
    1704.304(b) merely prohibits the enumerated persons from recommending a single bail bond surety
    to another person. We disagree with this construction of section 1704.304(b). “Particular” means
    “‘[slpecifyi n g or comprising a part; constituting a single or separate one, class, or group; distinct
    from others or the rest; separate; single; individual; as, a particular act. . . . Separate or separable;
    being apart from others; special; limited; specific.“’ Gen. Motors Acceptance Corp. v. Hunsaker,
    50 S.W.2d 367,368 (Tex. Civ. App.-Amarillo         1932, writ dism’d) (quoting dictionary definition).
    Section 1704.304(b) prohibits the covered officers and employees from distinguishing a specific bail
    bond surety from all bail bond sureties licensed in the county. In the phrase “a particular bail bond
    surety” the indefinite article “a” means “any.” See Chavira v. State, 
    167 Tex. Crim. 197
    , 3 19
    S.W.2d 115,120 (1958) (jury instruction on “a reasonable doubt” included “any reasonable doubt”).
    Thus, section 1704.304(b) prohibits a covered person from recommending any specific bail bond
    sureties. It does not mean that a covered person may recommend five bail bond sureties, as long as
    he or she refrains from recommending a single bail bond surety. A covered person may not make
    any such recommendation       at all.
    The Honorable    Tim Curry - Page 3              (GA-0089)
    Our interpretation of section 1704.304(b) is consistent with the legislative intent expressed
    elsewhere in chapter 1704. The legislature has expressly required a bail bond board to post in each
    county court with criminal jurisdiction “a current list of each licensed bail bond surety and agent of
    the bail bond surety in the county.” TEX. OCC.CODE ANN. 5 1704.105(a) (Vernon 2003). In
    addition, the board is required to provide the list to “each local official” responsible for detaining
    prisoners in the county. 
    Id. “A list
    of each licensed bail bond surety in a county may be displayed
    where prisoners are examined, processed, or confined.” 
    Id. 5 1704.105(b).
    The legislature thus
    requires that information about all bail bond sureties in the county be available to county jail
    prisoners. See also de la Garza v. State, 579 S.W.2d 220,222-23 (Tex. Crim. App. 1979) (en bane)
    (in county without bail bond board, sheriffs description of official duties provides that jailers were
    “‘not authorized to recommend professional bail bondsmen specifically”’ but were to show prisoners
    the actual list of bondsmen) (quoting published Webb County jailers’ official duties).
    A bail bond surety is also prohibited from soliciting bonding business in a police station, j ail,
    prison, detention facility, or other place of confinement. See TEX. OCC. CODEANN. 8 1704.304(c)
    (Vernon 2003). Section 1704.304(b) prevents persons who work in those locales from securing bail
    bond clients on behalf of a surety. See 
    id. 8 1704.304(b);
    see also 
    id. 0 1704.302(a)
    (prohibiting bail
    bond surety from giving money or property to an attorney, police officer, sheriff, deputy, constable,
    jailer, or employee of law enforcement agency for referral of bonding business).
    We next address section 1704.304(a), providing that a bail bond surety and his or her agent
    may not “recommend or suggest to a person for whom the bail bond surety executes a bond the
    employment of an attorney or law firm in connection with a criminal offense.” 
    Id. fj 1704.304(a).
    This section does not include the word “particular.” However, you suggest reading “particular” into
    section 1704.304(a), because the predecessor of section 1704.304(a) included this term prior to the
    nonsubstantive revision of provisions regulating the bail bond business. See Act of May 13, 1999,
    76th Leg., R.S., ch. 388, 8 1,1999 Tex. Gen. Laws 143 1,2277 (nonsubstantive revision of statutes
    licensing and regulating certain professions); see also Act of May 29,198 1,67th Leg., R.S., ch. 3 12,
    8 1, 1981 Tex. Gen. Laws 875,885 (formerly codified as TEX. REV. CIV. STAT. ANN. art. 2372p-3,
    8 15(b)) (prohibiting a bondsman from recommending or suggesting “the name of any particular
    attorney or firm of attorneys”). But see Fleming 
    Foods, 6 S.W.3d at 284
    (where codified statute is
    unambiguous, plain meaning rule applies even if codification is inconsistent with its statutory
    predecessor).
    The absence of the word “particular” in section 1704.304(a) is insignificant because this
    section prohibits a bail bond surety or his agent from recommending any attorney or law firm to a
    person. “Recommend” means “‘to commend or bring forward explicitly as meriting consideration,
    acceptance or adoption, to make a commendatory statement concerning.‘”            See Townsend v.
    Pequannock, 
    135 A.2d 708
    , 711 (N-J. Super. 1957) (quoting dictionary definition).         The term
    “suggest” has been defined as to hint or intimate; in essence, to recommend by introducing an idea
    indirectly. See Sims v. Ratcliff, 
    110 N.E. 122
    , 124 (I.nd. App. 1915); see also In re Erie R. Sys.,
    
    115 A.2d 89
    , 97 (NJ. 1955) (commissioners report suggesting findings of fact used “suggest”
    in the sense of recommendation).     Thus, section 1704.304(a) prohibits a bail bond surety from
    recommending an attorney or law firm to his client as the representative to employ in connection
    The Honorable    Tim Curry - Page 4             (GA-0089)
    with a criminal offense, either individually or by including the attorney or law firm in a selected list.
    See generally TEX. OCC. CODE ANN. ch. 952 (Vernon 2003) (regulating lawyer referral service);
    TEX. R. DISCIPLINARY P. 7.03(b), reprinted in TEX. GOV’T CODEANN., tit. 2, subtit. G app. A-l
    (Vernon 1998) (a lawyer shall not pay a person not licensed to practice law for referring prospective
    clients). A bail bond surety and a surety’s agent are forbidden from singling out any attorney or law
    firm for favorable consideration by a bail bond client.
    The Honorable Tim Curry - Page 5              (GA-0089)
    SUMMARY
    The statute regulating bail bond sureties prohibits (1) a
    bail bond surety from recommending an attorney or law firm to
    the surety’s client, and (2) various public officers and employees
    of the jail and court systems from recommending a particular bail
    bond surety to another person. These provisions prohibit the
    affected persons from making any recommendations of attorneys,
    law firms or bail bond sureties.
    OTT
    of Texas
    BARRY R. MCBEE
    First Assistant Attorney General
    DON R. WILLETT
    Deputy Attorney General for Legal Counsel
    NANCY S. FULLER
    Chair, Opinion Committee
    Susan L. Garrison
    Assistant Attorney General, Opinion Committee
    

Document Info

Docket Number: GA-89

Judges: Greg Abbott

Filed Date: 7/2/2003

Precedential Status: Precedential

Modified Date: 2/18/2017