Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 13,2005
The Honorable Tim Curry Opinion No. GA-038 1
Tan-ant County Criminal District Attorney
Justice Center Re: Pretrial release practices in a county subject
401 West Belknap to chapter 1704 of the Occupations Code, which
Fort Worth, Texas 76196-0201 governs bail bond sureties (RQ-0352-GA)
Dear Mr. Curry:
You ask several questions about pretrial release practices in a county subject to chapter 1704
of the Occupations Code, which governs bail bond sureties.’
Under the Texas Code of Criminal Procedure, a person accused of a crime may be permitted
to make bail, which is security that the person will appear before the proper court and answer the
accusation. See TEX. CODECRIM.PROC.ANN. art. 17.01 (Vernon 2005). Bail under the Code of
Criminal Procedure includes bail bonds and personal bonds. See id. A bail bond is a written
undertaking by a defendant and the defendant’s sureties, if any, guaranteeing the defendant’s
appearance and answer. See id. arts. 17.02, 17.08. A defendant executing a bail bond may post
money in the amount of the bond in lieu of obtaining a surety as a signatory on the bond. See id. art.
17.02. Alternatively, at the court’s discretion, a person may post a personal bond that meets the
requirements of a bail bond under article 17.08 except for the requirement of a surety. See id. arts.
17.03(a), 17.04.
To facilitate personal bonds, a county or multicounty judicial district “may establish a
personal bond office to gather and review information about an accused that may have a bearing on
whether he will comply with the conditions of a personal bond and report its findings to the court
before which the case is pending.” Id. art. 17.42, 5 1. A court releasing a defendant on such a
personal bond office’s recommendation may assess a personal bond fee, which may be used only to
defray the personal bond office’s expenses. Id. art. 17.42, 5 4(a)-(b).
Several of your questions concern the applicability of chapter 1704 of the Occupations Code
to personal bonds and bail bonds secured by money in lieu of a surety. Chapter 1704 regulates bail
‘See Letter from Honorable Tim Curry, Tarrant County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (June 10,2005) (on file with Opinion Committee, also available nt http:/lwww.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Tim Curry - Page 2 (GA-038 1)
bond sureties in counties with a population of 110,000 or more, such as Tat-rant County, or smaller
counties that have created a bail bond board. See TEX. Oct. CODE ANN. $0 1704.001-.002 (Vernon
2004).* 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. 0 1704,001(2)(A)-(B). Chapter 1704 prohibits such sureties from soliciting
business in a police station, a jail, a prison, or other detention facility. See id. 0 1704.304(c). Also,
chapter 1704 prohibits persons such as deputies or jailers from recommending a particular bail bond
surety. See id. 0 1704.304(b). Instead, in chapter 1704 counties, a “list of each licensed bail bond
surety and each licensed agent of a corporate surety in a county must be displayed at each location
where prisoners are examined, processed, or confined.” Id. 5 1704.105(b). See generally Tex. Att’y
Gen. Op. No. GA-0089 (2003).
Your first two questions concern the legality of posting signs in county detention facilities
about a defendant’s alternatives to release on a bond executed by a surety. See Request Letter, supra
note 1, at 2-3. You ask first whether a county may post signs in the county jail informing persons in
custody about the availability of personal bonds administered by the personal bond office and
providing the office’s telephone number. See id. at 2. Second, you ask whether the county may post
similar signs informing persons in custody about a defendant’s option to execute a bail bond and
deposit money in lieu of obtaining a surety’s signature on the bond. See id. at 3. Your main concern
is that chapter 1704 of the Occupations Code may prohibit posting such signs. See id. at 2-3. As you
note, a personal bond, a bail bond secured with money, and a bail bond executed’by a surety are all
utilized by persons accused of a crime who seek release from confinement. See id. at 4. You state
that a sign informing persons in custody about their alternatives to posting a bail bond executed by
a surety arguably could be seen as the sheriffs or jail’s endorsement of those alternatives and might
run afoul of Chapter 1704. See id. at l-2.
As previously discussed, however, chapter 1704 is primarily a regulatory scheme for certain
bail bond sureties. No sureties are required for a defendant to execute a bail bond secured by money
or a personal bond. Moreover, the personal bond office does not execute bonds or otherwise act as
a surety. Accordingly, chapter 1704’s prohibitions against surety solicitation or recommendation
would not prevent a county from posting signs in the county jail informing persons in custody about
personal bonds and the personal bond office or about bail bonds secured with money in lieu of a
surety. See TEX. OCC. CODE ANN. 4 1704.304(b) (Vernon 2004) (prohibiting recommending a
particular surety).
You further ask whether such signs would constitute the unauthorized practice of law
because they would inform individuals about legal options for pretrial release. The Government
Code provides a definition of the practice of law:
(a) In this chapter the “practice of law” means the
preparation of a pleading or other document incident to an action or
2See BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, 2000 Census of Population: Texas QuickFacts
(population of Tarrant County is 1,446,2 I9), available at http:llquickfacts.census.gov/qfdlstatesi48l48439.html).
The Honorable Tim Curry - Page 3 (GA-038 1)
special proceeding or the management of the action or proceeding on
behalf of a client before a judge in court as well as a service rendered
out of court, including the giving of advice or the rendering of any
service requiring the use of legal skill or knowledge, such as
preparing a will, contract, or other instrument, the legal effect of
which under the facts and conclusions involved must be carefully
determined.
(b) The definition in this section is not exclusive and does
not deprive the judicial branch of the power and authority under both
this chapter and the adjudicated cases to determine whether other
services and acts not enumerated may constitute the practice of law.
(c) In this chapter, the “practice of law” does not include the
design, creation, publication, distribution, display, or sale, including
publication, distribution, display, or sale by means of an Internet web
site, ofwritten materials, books, forms, computer software, or similar
products if the products clearly and conspicuously state that the
products are not a substitute for the advice of an attorney. This
subsection does not authorize the use of the products or similar media
in violation of Chapter 83 and does not affect the applicability or
enforceability of that chapter.
TEX. GOV’T CODEANN. 0 8 1.101(a)-(c) (Vernon 2005). Because the definition in subsection (a) is
not exclusive, courts may decide case by case what constitutes the practice of law. See Crain v. The
Unauthorized Practice of Law Comm., 11 S.W.3d 328, 333 (Tex. App.-Houston [lst Dist.] 1999,
pet. denied). Under the definition in section 8 1.101(a), the most pertinent question would be
whether the information on the signs constitutes the rendition of legal advice. Generally, the practice
of law includes “all advice to clients and all action taken for them in matters connected with the
law.” See Crain, 11 S.W.3d at 333.
We assume you envision signs that merely provide general information about personal bonds
or bail bonds secured by a money deposit without suggesting whether they are appropriate in any
particular circumstance. While the statutes and case law do not provide a definitive answer, we
believe a court would conclude that a sign that generally describes the statutory provisions for release
options and the functions of a personal bond office, without suggesting the suitability of any option
to particular circumstances, does not provide legal advice and is not the unauthorized practice of law.
Cf: TEX. DISCIPLINARY R. PROF’LCONDUCT7.07(e)(l)(xi), (xiii), reprinted in TEX. GOV’T CODE
ANN., tit. 2, subtit. G app. A (Vernon 2005) (exemption from advertising rules for publically
available information such as news articles and law articles and for public service announcements).
Additionally, a sign containing legal information may be considered “written materials” under
Government Code section 81.101(c). The section provides a limited exception for “written
materials” that state the information is not intended to substitute for the advice of an attorney. TEX.
GOV’T CODE ANN. 4 8 1.101(c) (Vernon 2005). Consequently, in an abundance of caution, the
The Honorable Tim Curry - Page 4 (GA-0381)
county may wish to include a disclaimer on any signs concerning personal bonds or bail bonds that
it decides to post.
Your third question is whether, in light of opinion GA-0089, a county may post a sign in its
jail that informs persons in custody of the right to make bail utilizing a surety bond and provides the
telephone number of a surety bond referral service. See Request Letter, supra note 1, at 3; see
generally Tex. Att’y Gen. Op. No. GA-0089 (2003). In that opinion we concluded that Occupations
Code section 1704.304, which prohibits certain persons including the sheriff, a deputy, or a jailer
from recommending a particular bail bond surety, does not allow such persons to recommend a short
list of sureties. See id. at 3-4; see also TEX. Oct. CODE ANN. 9 1704.304(b) (Vernon 2004).
Because you do not describe the bail bond referral service in any detail, we cannot give you a
definitive answer. However, following the reasoning in GA-0089, section 1704.304(b) would
prohibit posting the telephone number of a referral service if it is essentially a means for a sheriff,
deputy, jailer, or other person to recommend a surety or group of sureties. Presumably the referral
service’s telephone number would be posted in the countyjail with at least the sheriffs tacit consent.
See de la Garza v. State, 579 S.W.2d 220, 222-23 (Tex. Crim. App. 1979) (discussing sheriffs
authority concerning county jail operations). Depending on the facts, posting a referral service
telephone number in a county jail may raise a question whether the sheriff is illegally recommending
a surety or sureties.
Moreover, such a sign is inconsistent with section 1704.105(b), which provides that “[a] list
of each licensed bail bond surety and each licensed agent of a corporate surety in a county must be
displayed at each location where prisoners are examined, processed, or confined.” TEX. OCC. CODE
ANN. 6 1704.105(b) (Vernon 2004). Under the statute’s plain language, posting a sign with a referral
telephone number does not satisfy the requirement to post a “list of each licensed bail bond surety
. . . in a county.” Id. 3 1704.105(b). Thus, even assuming a sign posting the telephone number of
a bail bond referral service is not an illegal referral, the county must still display a complete surety
list as required under section 1704.105(b).
Your fourth question is whether criminal judges’ authority under article 26.04 of the Texas
Code of Criminal Procedure to promulgate rules for appointment of defense counsel for indigents
authorizes them to order a city to post the signs discussed above in the city jail. See Request Letter,
supra note 1, at 4. Article 26.04 provides in pertinent part that “[the] judges of the county courts,
statutory county courts, and district courts trying criminal cases in each county, by local rule, shall
adopt and publish written countywide procedures for timely and fairly appointing counsel for an
indigent defendant.” TEX. CODEGRIM.PROC.ANN. art. 26.04(a) (Vernon Supp. 2004-05). You note
that there is “a real world relationship between pretrial freedom and the ability to afford counsel.”
Request Letter, supra note 1, at 4. However, the right to make bail and the right to an attorney are
distinct rights. See TEX. CONST.art. I, $ 10 (concerning the right to counsel); see id. art. I, 8 11
(concerning the right to bail). Article 26.04 suggests that indigent defense and bail are separate
matters when it states that “[tlhe procedures and standards [for appointing indigent defense] shall
apply to each defendant in the county equally, regardless of whether the defendant is in custody or
has been released on bail.” TEX. CODECRIM.PROC.ANN. art. 26.04(l) (Vernon Supp.2004-05). As
a matter of statutory construction, article 26.04 does not expressly or implicitly authorize criminal
judges to order city jails to post information about bail bond and personal bond alternatives.
The Honorable Tim Curry - Page 5 (GA-038 1)
Finally, you ask whether employees or agents of a personal bond office may interview
persons in custody “in a city holding facility before the [persons] are processed and booked” for the
“sole purpose of gathering the kind of information used to determine whether the [persons] would
be suitable candidates for release on personal bond.” Request Letter, supra note 1, at 4. You state
that the “interviews would be strictly voluntary, and undertaken with the consent and cooperation
of city officials.” Id. We assume this question is prompted by your concern that a personal bond
office may be subject to the Occupations Code’s prohibition of bail bond surety solicitation of
business in police stations, jails, prisons, or other detention facilities. See TEX. OCC. CODEANN.
$ 1704.304(c) (Vernon 2004). Because the personal bond office does not function as a surety,
section 1704.304(c) does not apply to it. Although legal issues may arise in specific circumstances,
we are not aware of any general statutory provisions or common-law principles that would prohibit
such interviews.
The Honorable Tim Curry - Page 6 (GA-038 1)
SUMMARY
Chapter 1704 ofthe Occupations Code concerning certain bail
bond sureties does not prohibit a county from posting signs in county
detention facilities informing defendants about statutory provisions
for executing a bail bond secured by money or a personal bond and
further providing the telephone number of the personal bond office.
A county may only post the telephone number of a bail bond referral
service in county detention facilities if it can do so in a manner that
does not constitute a prohibited referral under Occupations Code
section 1704.304(b); such a sign would not satisfy the requirement
to post a list of bail bond sureties in certain locations required by
section 1704.105. Article 26.04 of the Code of Criminal Procedure
concerning indigent defense does not authorize judges of criminal
courts to order cityjails to post signs concerning release on bail bonds
and personal bonds. Generally, employees or agents of,a personal
bond office may interview prisoners in a city holding facility for
information gathering purposes on a voluntary basis.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee