Untitled Texas Attorney General Opinion ( 1999 )

September 29, 1999
The Honorable Sherry L. Robinson Opinion No. JC-0121
Waller County Criminal District Attorney
836 Austin Street, Suite 105 Re: Whether a county judge or his parent may
Hempstead, Texas 77445 act as a surety on a bail bond in the county where
he presides and related questions (RQ-0062-K)
Dear Ms. Robinson:
You ask whether a county judge or his parent may act as a surety on a bail bond in the county
where the county judge presides. Section 81.002 of the Local Government Code, the county judge
and commissioners oath of office provision, prohibits a county judge from having an interest in a
contract with the county. Chapter 171 of the Local Government Code, which regulates conflicts of
interest and provides exceptions to the section 81.002 prohibition, does not apply to the taking and
approval of bail bonds and therefore does not provide an exception to section 81.002 in this regard.
Because a bail bond is a contract to which the county is a party and in which a surety has an interest,
a county judge may not act as a surety on a bail bond in the county. The determination whether a
county judge haa an interest in a bail bond signed by a surety who is a relative will depend upon the
facts and is therefore beyond the scope of the opinion process.
We gather you are concerned about a county judge who was a bondsman in the county and
operated a bail bond business with his mother prior to assuming office. See Letter from Honorable
Sherry L. Robinson, Waller County Criminal District Attorney, to Honorable John Comyn, Attorney
General, at 4 (Apr. 28,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. After
assuming offtce, he transferred the bail bond business to his mother. Id. His mother continues to
execute bail bonds in the county. Id. It is not clear from the information you have provided whether
the county judge has continued to execute bail bonds in the county or whether he maintains an
interest in the bail bond business. We assume that the county judge and his mother have acted as
individual sureties rather than as agents for a corporate surety.
First, you ask whether a county judge may “ethically and/or legally continue to act as a
bondsman in the county where he presides as the County Judge.” Id. at 1. To answer your question,
we examine two provisions of the Local Government Code, section 8 1.002, the county judge and
commissioners oath ofoftice provision, and chapter 171. Section 81.002 provides in pertinent part:
(a) Before undertaking the duties of the county judge or a county
commissioner, a person must take the offtcial oath and swear in
The Honorable Sherry L. Robinson - Page 2 (JC-0121)
writing that the person will not be interested, directly or indirectly, in
a contract with or claim against the county except:
(1) a contract or claim expressly authorized by law; or
(2) a warrant issued to the judge or commissioner as a fee of
office.
.
TEX. LOC. GOV’T CODEANN. 5 81.002(a) (Vernon 1999). Section 81.002 states a strict rule against
conflicts of interest. It has been partially repealed by chapter 171, see in@, but prior to the partial
repeal, it barred county commissioners from having any interest, no matter how small, in a contract
with the county. See Tex. Att’y Gen. Op. No. H-624 (1975) (county barred from contracting with
a farmers’ cooperative in which one commissioner owned a share).
Chapter 17 1 now permits a county judge or commissioner to have an interest in a contract
with the county if the contract falls within the ambit of that chapter. As this office has explained,
“Chapter 17 1 creates an exception in the oath required by section 8 1.002 to the extent that it permits
a county judge or county commissioner to have a direct or indirect interest in a contract with or claim
against the county.” Tex. Att’y Gen. Op. No. DM-279 (1993) at 4. But chapter 171 does not repeal
the oath of office provision with respect to contracts to which it does not apply. This office recently
concluded, for example, that because chapter 171 did not reach employment contracts between
members of a governing body and the political subdivision they govern, the oath of office provision’
applied to, and prohibited, an employment contract between a county commissioner and the county.
See Tex. Att’y Gen. Op. No. JC-0061 (1999). And, this office has concluded that chapter 171 does
not apply to a contract between a county commissioner and a tax assessor-collector for payment of
delinquent taxes, including county taxes, because the “contract . . is not subject to a vote by the
commissioners court.” Tex. Att’y Gen. LO-96-135, at 2. The oath of office provision applied,
however, because it is not limited to contracts with the county entered into by the commissioners
court. See id. at 2-3.
Chapter 171 does not apply to and therefore does not create an exception to the oath ofoffice
with respect to bail bonds because a commissioners court plays no role in the taking and approval
of bail bonds. In this state, the taking and approval of a bail bond is governed by either chapter 1704
of the Occupations Code, formerly article 2372p-3 of the Revised Civil Statutes,’ or chapter 17 of
the Code of Criminal Procedure. In a county governed by chapter 1704, the bail bond board licenses
and regulates bondsmen, and the sheriffmust generally accept the bail bond of a licensed bondsman.
See TEX. Oct. CODEANN. § 1704.201. The taking and approval of bail bonds in Wailer County,
‘The Texas Occupations Code enacted by the 76th Legislature is the codification of a variety of licensing
statutes, includiig formcrarticle 2372p-3. See ActofMay 13,1999,76tbLeg., RX, ch. 388, $ 1, sets. 1704.001-.306,
1999 Tex. Sess. Law Serv. 1431.2279; id. 5 6(a), 1999 Tex. Sess. Law Serv. at 2439-40 (repealing article 2372~.3 of
the Revised Civil Statutes). For ease of citation, this opinion will refer to the provisions of chapter 1704 as they will
be codified in the Texas Occupations Code.
The Honorable Sherry L. Robinson - Page 3 (JC-0121)
which has a population of less than 110,000 and has not exercised the option to estab]isha bailbond
board, is governed by chapter 17 of the Code of Criminal Procedure rather than chapter 1704 ofthe
Occupations Code. See id. 4 1704.002 (provisions ofthis chapter apply only to the execution ofbail
bonds in counties having a population of more than 110,000, or in counties of less than 110,000
where a board has been created); see also Castaneda Y. Gonzalez, 985 S.W.2d 500, 503 (Tex.
App.Xorpus Christi 1998, no pet.) (chapter 17 of the Code of Criminal Procedure controls the
taking ofbail bonds in county not subject to former article 237213-3);Tex. Att’y Gen. Op. No. DM-
483 (1998) (same). Under chapter 17, a bail bond is taken by a “court, judge, magistrate or other
officer” who has authority to test the sufficiency of the security offered. See TEX. CODE GRIM.
PROC.ANN. arts. 17.11, 5 1; 17.13; 17.14 (Vernon 1977).
Whether a county is governed by chapter 1704 of the Occupations Code or chapter 17 of the
Code of Criminal Procedure, the commissioners court plays no role in the taking or approval ofbail
bonds. Because the commissioners court does not approve bail bonds, chapter 171 does not apply.
See Tex. Att’y Gen. LO-96-135, at 2 (chapter 171 ofthe Local Government Code does not apply to
a “contract [that] . is not subject to a vote by the commissioners court”). Without chapter 171 to
provide a mechanism for a county judge or commissioner to avoid the conflict of interest, section
8 1.002 will prohibit a county judge from acting as a surety on a bail bond if a bail bond is a contract
in which a surety has an interest and to which the county is a party.
An individual acts as a surety on a bail bond either by signing it personally, see TEX. CODE
GRIM.PROC.ANN. art. 17.08(4) (Vernon 1977) or, in certain circumstances, authorizing an agent
to do so on his or her behalf, see, e.g., Zidell Y. State, 530 S.W.2d 577 (Tex. Crim. App. 1975)
(concluding that bondsman had adopted signature of agent); Weddel v. State, 756 S.W.2d 76 (Tex.
App.-El Paso 1988, no pet.) (same). A bail bond is a contract in which a person who acts aa surety
has an interest and to which the county is a party. First, a bail bond “is a written undertaking entered
into by the defendant and his sureties for the appearance of the principal therein before some court
or magistrate to answer a criminal accusation.” TEX. CODEGRIM.PROC.ANN. art. 17.02 (Vernon
1977). Thus, a bail bond is a contract between the surety and the state. See Morin v. State, 770
S.W.2d 599,599 (Tex. App.-Houston [14th Dist.] 1989),pet. dism ‘dper curiam, 800 S.W.2d 552
(Tex. Crim. App. 1990) (en bane); Keith v. State, 760 S.W.2d 746, 747 (Tex. App.-Fort Worth
1988), afd, 802 S.W.2d 690 (Tex. Crim. App. 1990) (en bane). Second, although a bail bond must
“be made payable to ‘The State of Texas,“’ see TEX. CODEGRIM.PROC.ANN. art. 17.08(l) (Vernon
1977), the county is party to the contract. Under article 22.02 of the Code of Criminal Procedure,
a bail bond is forfeited if the defendant fails to appear and “judgment shall be entered that the State
of Texas recover of the defendant the amount of money in which he is bound, and of his sureties,
if any, the amount of money in which they are respectively bound, which judgment shall state that
the same will be made final, unless good cause be shown why the defendant did not appear.” Id. art.
22.02 (Vernon 1989). Under article 103.004, an officer who collects bail bonds recovered in the
name of the state “shall deposit the money in the county treasury.” Id. art. 103.004(a), amended by
Act of May 27, 1999, 76th Leg., R.S., H.B. 3173, 5 1; see also Tex. Att’y Gen. Op. No. O-4894
(1943) at 3 (“In order to compensate the county in which a criminal prosecution is had, provision[]
is made by [the predecessor to article 103.004] for the payment to that county of the amount
collected from forfeited Bail Bonds; the sums are not required to be paid into the State Treasury for
the benefit of the State at large.“).
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On the basis of the foregoing statutes, Attorney General Opinion JM-927 concluded that
when a county commissioner acts as a surety on a bail bond, he enters into a contract making the
county the beneficiary if the principal fails to perform, a contract prohibited by section 81.002 ofthe
Local Government Code. See Tex. Att’y Gen. Op. No. JM-927 (1988) at 2. The rationale. ofthat
1988 opinion was implicitly affirmed by the Texas Supreme Court’s subsequent acknowledgment,
in a case involving the same county commissioner, that a bail bond forfeiture judgment is a debt
owed to the county rather than a debt owed to the state. See Orange County v. Ware, 819 S.W,2d
472 (Tex. 1991) (holding that county was entitled to withhold salary of county commissioner on the
basis of bond forfeitures owed to the county). Furthermore, as you point out, a bail bond is
conditioned by statute on the agreement that the principal and sureties “will pay all necessary and
reasonable expenses incurred by any and all sheriffs or other peace officers in rearresting the
principal in the event he fails to appear before the court or magistrate named in the bond at the time
stated therein.” TEX. CODECRIM.PROC.ANN.art. 17.08(6) (Vernon 1977). Thus, by acting as a
surety on a bail bond, the surety agrees to pay any expenses the county may incur in rearresting the
principal.
In sum, a bail bond is a contract in which the surety haa an interest and to which the county
is a party. Therefore, a county judge is prohibited by section 81.002 of the Local Government Code
from acting as a surety on a bail bond in the county. Accord Tex. Att’y Gen. Op. No. JM-927 (1988)
(county commissioner’s oath of office prohibits him t?om acting as surety on bail bond in which
county and the commissioner have an interest).
You suggest that the county judge believes that he is not subject to the strictures of section
8 1.002 with respect to bail bonds because he is also an attorney. See Request Letter at 5. It appears
that he bases this belief on section 82.064(b) of the Government Code, which provides that a county
judge may not practice law “except in cases over which the court in which the judge. serves has
neither original nor appellate jurisdiction,“see TEX.GOV’TCODEANN. $82.064(b) (Vernon 1998),
and chapter 1704 of the Occupations Code, which excepts an attorney from its licensing
requirements when the attorney acts as a surety for clients he or she actually represents in criminal
cases, see TEX. Oct. CODEANN. 4 1704.163. But chapter 1704 is inapposite here because it does
not apply to the taking or approval of bail bonds in Waller County. And even in a chapter 1704
county, bail bonds executed by attorneys who are exempt from licensing are governed by chapter
17 of the Code of Criminal Procedure. See Tex. Att’y Gen. Op. No. DM-483 (1998) at 6 (“the
sufficiency of the security offered by an attorney who executes a bail bond for a client is governed
by the Code of Criminal Procedure”). The Code of Criminal Procedure makes no distinction
between attorneys and other individual sureties. Furthermore, section 82.064(b) ofthe Government
Code, which merely permits county judges to engage in the private practice of law in certain courts,
does not create an exception to conflict of interest statutes, such as section 81.002 or chapter 171 of
the Local Government Code. In sum, all county judges who are attorneys and act as sureties on bail
bonds for clients they represent in criminal cases are prohibited by section 8 1.002 from doing so in
the counties where they preside.
Second, you ask whether a county judge may “ethically and/or legally continue to maintain
[an] interest in a bail bond business in the county where he presides . . . (In the instant case, transfer
the business to his mother.)” Request Letter at 1. We gather from your brief that you are concerned
The Honorable Sherry L. Robinson - Page 5 (JC-0121)
that the county judge has transferred the bail bond business that he used to operate to his mother and
that she is signing as surety on bail bonds in the county. See id. at 4. Your second question raises
two issues: (i) whether the county judge may have an interest in a bail bond business in the county
and (ii) whether the countyjudge has an interest in bail bonds signed by his mother. We begin with
your second concern.
This office cannot ultimately resolve whether a county judge has an interest in a bail bond
signed by his mother. Again, chapter 171 of the Local Government Code does not apply because
the commissioners court takes no action with respect to the taking of bail bonds. Section 81.002 of
the Local Government Code will apply if the county judge has an interest in the bail bond, which
he may have even if he has not signed it. Unlike chapter 171, which provides that a local public
official has a substantial interest in any business entity in which a close family member has a
substantial interest, see TEX. Lot. GOV’T CODE ANN. 5 171.002(c) (Vernon 1999), however, the
section 81.002 disqualification does not extend to a contract merely because a county judge’s or
commissioner’s close relative has an interest in the contract. See Tex. Att’y Gen. Op. No. H-354
(1974) at 3 (opining that the conflict of interest disqualification of the common law and of the
statutory predecessor to section 8 1.002 of the Local Government Code “does not extend beyond the
state employee himself. [T]he mere relationship of two brothers is not, in and of itself, sufficient
to establish the prohibited interest.“). Section 8 1.002 will apply to a family member’s contract only
if the county judge or commissioner himself has an interest in the contract, which is generally a
question of fact. See id. (whether county commissioner has an interest in county contract with
brother’s corporation is a question of fact). For example, a county judge or commissioner might
have an interest in a county contract with a family member’s business if the county judge or
commissioner himself has a financial interest the business. Thus, the determination whether a
county judge has an interest in a bail bond signed by a surety with whom he has as a family
relationship will depend upon the facts. Accord Tex. Att’y Gen. LO-88-127, at 2 (whether county
commissioner haa an interest in bail bonds of bail bond business that he has transferred to his son
“is a fact question that this office cannot resolve”).
You point out that when sureties sign the form bail bond in your county, they bind
themselves and their “heirs, executors and administrators, jointly and severally.” See Request Letter,
Attachment B, “Sample of Bail Bond.” You suggest that the county judge has an interest in any bail
bond signed by his mother on the basis that he is his mother’s heir. Id. at 4. Whether the county
judge is actually his mother’s heir, however, will depend upon the facts. Furthermore, even
assuming that the county judge is his mother’s heir, this future interest seems a rather tenuous basis
on which to conclude that he has an interest in contracts to which she is a party, although it may be
a sufficient interest for purposes of section 8 1.002 in certain factual circumstances. We cannot
conclude as a matter of law, however, that the county judge has an interest his mother’s contracts
sufficient to invoke section 8 1.002 merely because he may be her heir.
Finally, we address whether a county judge may have an interest in a bail bond business in
the county. As we have said, a county judge is prohibited from having an interest in a bail bond
executed in the county. Aside from that prohibition, we are not aware of any provision that would
preclude a county judge from having an interest in a bail bond business in the county. While the
countyjudge in a county governed by chapter 1704 may be a member of the county bail bond board,
The Honorable Sherry L. Robinson - Page 6 (JC-0121)
seeT~x.0~~. CODEANN. $1704.053(3), that isnot aconceminyourcounty, whichisnot governed
by that statute and has no bail bond board. Chapter 171 of the Local Government Code provides a
mechanism for a county judge to avoid any conflicts of interest that might arise ifthe commissioners
court takes action that will affect a business in which he or she has an interest. In your case, if either
the county judge or his mother has a “substantial interest” in the bail bond business, the county judge
must follow the dictates of chapter 171 of the Local Government Code before the commissioners
court takes any action that has a special economic effect on the bail bond business. See TEX. Lot.
GOV’T CODE ANN. $3 171.002 (defining “substantial interest”); 171.004 (required procedures)
(Vernon 1999); Tex. Att’y Gen. LO-88-136 (discussing whether county commissioner, a former
bondsman who had transferred bail bond business to his son, could participate in a commission
action that might affect collection ofbond forfeitures); see also Orange County Y. Ware, 8 19 S.W.2d
472 (Tex. 1991) (county entitled to withhold salary of county commissioner on the basis of bond
forfeitures owed to the county).
The Honorable Sherry L. Robinson - Page 7 (JC-0121)
SUMMARY
Section 81.002 of the Local Government Code, the county
judge and commissioners oath of office provision, prohibits a county
judge from having an interest in a contract with the county. Because
a bail bond is a contract to which the county is a party and in which
a surety has an interest, a county judge may not act as a surety on a
bail bond in the county. The determination whether a county judge
has an interest in a bail bond signed by a surety who is a relative will
depend upon the facts and is therefore beyond the scope of the
opinion process. Chapter 171 of the Local Government Code, which
regulates conflicts of interest and provides exceptions to the section
81.002 prohibition, does not apply to the taking and approval of bail
bonds and therefore does not provide an exception to section 81.002
in this regard.
JOAN COkNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBJNSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee