Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 28,2010
The Honorable Bill Moore Opinion No. GA-0784
Johnson County Attorney
Guinn Justice Center Re: Whether a sheriff has a conflict of interest under
204 South Buffalo Avenue, Suite 410 Local Government Code chapter 171 concerning
Cleburne, Texas 76033-5404 certain bail-bond duties of the sheriff, when the
Sheriff s stepson and his stepson's wife are employed
as agents of a bail bond surety (RQ-0849-GA)
Dear Mr. Moore:
You ask whether a sheriff has a conflict of interest under Local Government Code chapter
171 concerning certain bail bond duties of the Sheriff, when his stepson and his stepson's wife are
employed as agents of a bail surety.' You inform us that the Sheriff is a member of the Johnson
County Bail Bond Board (the "Board") under chapter 1704 of the Occupations Code and currently
serves as the Board's chair. Request Letter at 2; TEx. OCC. CODE ANN. §§ 1704.053-.054 (Vernon
2004 & Supp. 2009). Request Letter at 2. Specifically, you ask about certain statutory duties of a
sheriff to accept or rej ect a defendant's bail bond or, after a defendant's bond has been forfeited,
incarcerate the defendant or verify the defendant's incarceration in another jurisdiction. See Request
Letter at 4-7 (citing articles 17.16 and 22.13(a)(5)(A)-(B) of the Code of Criminal Procedure, and
sections 1704.201 and 1704.2535 ofthe Occupations Code).
Chapter 171 generally governs local public officials' pecuniary conflicts of interest. TEx.
Loc. GOy'T CODE ANN. §§ 171.001-.010 (Vernon 2008). A "[l]ocal public official" is "a member
of the governing body or another officer, whether elected, appointed, paid, or unpaid, of any district
(including a school district), county, municipality, precinct, central appraisal district, transit authority
or district, or other local governmental entity who exercises responsibilities beyond those that are
advisory in nature." Id. § 171.001(1). A sheriff is an elected county officer. TEx. CONST. art. V,
§ 23 ("There shall be elected by the qualified voters of each county a Sheriff, who shall hold his
office for the term of four years, whose duties, qualifications, perquisites, and fees of office, shall
be prescribed by the Legislature .... "). A sheriff exercises a multitude of "responsibilities beyond
those that are advisory in nature." TEx. Loc. GOy'T CODE ANN. § 171.001(a) (Vernon 2008); see,
e.g., TEx. CODE CRIM. PROC. ANN. art. 2.17 (Vernon 2005) (designating sheriff as conservator of
the peace); TEx. Loc. GOy'T CODE ANN. §§ 85.001 (Vernon 2008) (sheriff'S oath to conserve the
ISee Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
The Honorable Bill Moore - Page 2 (GA-0784)
peace), 351.041(a) (Vernon 2005) ("The sheriff of each county is the keeper of the county jail.").
Thus, the sheriff is a local public official generally subject to chapter 171. See Tex. Att'y Gen. Op.
No. GA-0419 (2006) at 1 n.2 (suggesting that sheriff consider potential application of chapter 171);
Tex. Att'y Gen. LO-93-054, at 1 (observing that chapter 171 applies to "local public officials such
as sheriffs").
Section 171.003 of the Local Government Code prohibits a local public official from (1)
acting as a surety for business entities dealing with the county, (2) acting as a surety on official bonds
required of officers of a governmental entity, or (3) violating section 171.004. TEx. Loc. GOy'T
CODE ANN. § 171.003 (Vernon 2008). Section 171.004 requires a local public official who "has a
substantial interest in a business entity or in real property" to file an affidavit disclosing the interest
and to abstain from further participation in certain governmental decisions affecting the business
entity 2 or real property. Id. § 171.004. An interested local public official is not required to abstain
from participation, however, "if a majority of the members of the governmental entity" are likewise
required to file an affidavit of interest in the same matter. Id. § 171.004(c).
You have asked that we assume that the Sheriff s stepson has a substantial interest in the bail
bond company because of the salary the stepson receives from the bail bond company, and that the
stepson's salary is community property. Request Letter at 2. Section 171.002 provides that "[a]
local public official is considered to have a substantial interest under this section if a person
related to the official in the first degree by consanguinity or affinity, as determined under Chapter
573, Government Code, has a substantial interest under this section." TEx. Loc. GOy'T CODE ANN.
§ 171.002(c) (Vernon 2008). Consanguinity is a relationship by blood, including adoption, and is
determined by the number of generations that separate two individuals. See TEx. GOy'T CODE ANN.
§§ 573.022-.023(a) (Vernon 2004). Affinity is a relationship by marriage and the degree of
relationship by affinity "is the same as the degree of the underlying relationship by consanguinity."
. See id. §§ 573.024(a), .025(a); see also Tex. Att'y Gen. Op. No. JC-0063 (1999) at 2 ("A
relationship in the first degree by affinity also exists when the spouse of one of the individuals is
related in the first degree by consanguinity to the other, that is, between a person and his or her
parents-in-law, son- or daughter-in-law, and the children of his spouse."). Applying these statutory
provisions, the Sheriff is related to his wife's son in the first degree by affinity. Thus, for purposes
of this opinion, we assume that the Sheriff has a "substantial interest" in the bail bond company by
virtue of his relationship to his stepson.
Your questions do not concern the Sheriff s duties as a member of the Board, and we do not
address them here. Rather, you ask about individual duties of the Sheriff in his official capacity as
'A"[b]usiness entity" under chapter 171 is "a sole proprietorship, partnership, fInn, corporation, holding
company, joint-stock company, receivership, trust, or any other entity recogoized by law." As defIned, the tenn is
sufficiently broad to include an entity such as a bail bond company. TEx. Loc. GOV'T CODE ANN. § 171.00 I (2) (Vemon
2008).
The Honorable Bill Moore - Page 3 (GA-0784)
sheriff concerning his acceptance of a bail bond and other duties of the Sheriff following bail bond
forfeiture. 3
You note that in two opinions, this office has determined that particular law enforcement
actions were not subject to section 171.004. Request Letter at 4 (citing Attorney General Opinions
JM-776 (1987) and GA-051O (2009)). In Attorney General Opinion JM-776, this office concluded
that an investigator's determination of the existence of probable cause to make a warrantless arrest
when his spouse owed and operated a bail bond business was not the kind of "vote or decision"
described in section 171.004. Tex. Att'y Gen. Op. No. JM-776 (1987) at 5. In Attorney General
Opinion GA-051 0, this office concluded that section 171.004 did not apply to a constable's decision
to order a vehicle towed, stating that "the apparent purpose of section 171.004 does not include
ordinary law enforcement decisions." Tex. Att'y Gen. Op. No. GA-051O (2007) at 3. In light of
these opinions, you ask whether a sheriff s bail bond and forfeiture duties statutorily imposed by
certain statutes are "ordinary law enforcement decisions" excluded from section 171.004's
application. Request Letter at 4-8.
Section 171.004 does not expressly exclude an "ordinary law enforcement decision" from
its provisions. Rather, in opinions GA-051 0 and JM-776, this office determined from a review of
the statute that the Legislature could not have reasonably intended it to apply to the law enforcement
decisions at issue in those opinions. Section 171.004 provides:
(a) If a local public official has a substantial interest in a business
entity or in real property, the official shall file, before a vote or
decision on any matter involving the business entity or the real
property, an affidavit stating the nature and extent of the interest and
shall abstain from further participation in the matter if:
(1) in the case of a substantial interest in a business entity the
action on the matter will have a special economic effect on the
business entity that is distinguishable from the effect on the public[.J
'Under section 1704.201 of the Occupations Code, a sheriff is required to accept a bail bond from a surety
licensed by the county "if: (I) the bond is for a county or district case; (2) the bond is executed in accordance with this
chapter and the rules adopted by the board; and (3) a bail bond is required as a condition of release of the defendant for
whom the bond is executed." TEX. Occ. CODE ANN. § 1704.20 I (Vernon 2004). The sheriff is notto accept a surety's
bonds, however, if the board has notified the sheriff that a surety has not paid a fmaljudgment of forfeiture, until the
surety has satisfied the judgment. Id. § 1704.2535. You suggest that the Sheriffs review and acceptance or refusal to
accept a bond constitutes a decision having a special economic effect on a business entity, the surety, that is
distinguishable from the effect on the public. Request Letter at 4-5.
Concerning forfeiture, article 22.13 of the Code ofCriroinal Procedure provides that a defendant's tiroely
incarceration after a judgment of forfeiture may relieve the surety ofliability on the bond. TEX. CODE CRIM. PROC. ANN.
art. 22.13(a)(5)(A}--{B) (Vernon 2009). Also, a sheriffs verification that a defendant is incarcerated in another
jurisdiction discharges a surety from liability for a judgment offorfeiture. Id art. 17. I 6(a}--{b) (Vernon 2005). You
contend that the Sheriff s decision to apprehend and incarcerate a defendant under article 22.13 or to provide verification
of incarceration under article 17.16 would have a special economic effect on the surety. Request Letter at 6-7.
The Honorable Bill Moore - Page 4 (GA-0784)
TEx. Loc. GOV'TCODEANN. § 171.004(a)(1) (Vernon 2008). Section 171.004 applies to a "local
public official," which, as defined, could be an individual official as well as an official who is a
member of a governing body. Id. §§ 171.001(1), .004(a)(I). The section does not expressly state
what constitutes a "vote or decision," although the procedure required--disclosure and
abstention--clearly applies to the vote or decision of a governing body. See, e.g., Tex. Att'y Gen.
Op. Nos. GA-0337 (2005) (application to directors of river authority and groundwater district);
GA-0090 (2003) (application to county judge or commissioner with respect to commissioners court
vote or decision); JC-O 155 (1999) (application to member of city council). A member of a governing
body may file an affidavit disclosing the member's interest in a business entity or real property and
abstain from further participation, thereby allowing the governing body to vote or decide the issues
concerning the business entity without the involvement of the interested official. See TEx. Loc.
GOV'T CODE ANN. §§ 171.004, .006 (Vernon 2008); Tex. Att'y Gen. Op. No. GA-0068 (2003)
(stating that "chapter 171 permits a city council and other local governmental bodies to transact
business with business entities even though a member of the body has a financial interest in the
transaction").
While an official acting individually does not "vote," arguably such an official may make a
"decision" in the broadest sense of the word: However, it is not reasonable or feasible to impose
section 171.004's disclosure and abstention requirements on a decision that the law imposes on a
specific official. See TEx. GOV'T CODE ANN. § 311.021(3)-(4) (Vernon 2005) (stating the
presumption that, in enacting a statute, the Legislature intends "a just and reasonable result" and "a
result feasible of execution"); Tex. Att'yGen. Op. No. JM-776 (1987) at 5 (reasoning that "[c]Iearly,
it was not intended that an investigator file an affidavit before making a decision on whether
probable cause existed to make a warrantless arrest").
Moreover, when the law requires a specific official to perform a certain duty, abstention may
not be a viable option. You ask about certain statutory duties of a sheriff to accept or reject a bail
bond, incarcerate a defendant post forfeiture, or verifY a defendant's incarceration. See Request
Letter at 4-7 (citing articles 17.16 and 22.l3(a)(5)(A)-(B) of the Code of Criminal Procedure, and
sections 1704.201 and 1704.2535 of the Occupations Code); see TEx. CONST. art. XVI, § 1
(constitutional oath of elected officers to "faithfully execute the duties of the office"); TEx. Loc.
GOV'T CODEANN. § 85.001 (b)(4)(A) (Vernon 2008) (sheriff s bond conditioned on sheriff s faithful
'In several prior opinions this office held open the possibility that duties imposed on an individual official might
constitute a "decision" subject to section 171.004 of the Local Government Code. See, e.g., Tex. Att'y Gen. Op. Nos.
GA-0360 (2005) at 5-{) (stating that a county auditor is a "local public official" under chapter 171, but determining for
other reasons that the auditor need not comply with section 171.004), DM-303 (1994) at 3 n.3 (assuming without
deciding that duties ofa county auditor are subject to section 171.004); Tex. Att'y Gen. LO-93-54, at 1-2 (concluding
that chapter 171 does not preclude a sheriff from acting as a volunteer frrefighter). Cf Tex. Att'y Gen. Op. No. GA-05 \0
(2009) at 2 (stating that ''the statutory disclosure and abstention requirements [of section 171.004] do not apply to a local
public official who is not authorized to participate in any vote or decision of the local governing body that could have
a special economic effect on the official's business entity").
The Honorable Bill Moore - Page 5 (GA-0784)
performance of duties "established by law"). 5 It does not appear that the Legislature intended that
section 171.004's disclosure and abstention requirements apply to these statutory duties of the
sheriff. We conclude that the conflict of interest provisions of section 171.004 of the Local
Government Code do not apply to a sheriff's performance of bail bond and forfeiture duties under
sections 1704.201 and 1704.2535 of the Texas Occupations Code and articles 17.16 and 22.13 of
the Texas Code of Criminal Procedure when the sheriff's stepson or stepson's wife are agents ofa
bail bond surety.
'Even when a deputy perfonns duties ofthe sheriff, the sheriffremains responsible for the deputy's official acts.
TEX. Loc. GOV'TCODEANN. § 8S.003(d)-(e)(Vemon 2008); see also Whirlv. Kern, 407 F.2d 781, 795 (5th Cir. 1968),
cert. denied, 396 U.S. 901 (1969) (stating that a sheriff's statutory duty as keeper of the county jail "cannotbe avoided
by delegating authority over the jail to deputies or other subordinates").
The Honorable Bill Moore - Page 6 (GA-0784)
SUMMARY
The conflict of interest provisions of section 171.004 of the
Local Government Code do not apply to a sheriffs performance of
bail bond and forfeiture duties under sections 1704.201 and
1704.2535 of the Texas Occupations Code and articles 17.16 and
22.13 of the Texas Code of Criminal Procedure when the sheriffs
stepson or stepson's wife are agents of a bail bond surety.
ANDREW WEBER
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee