Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 1, 2008
The Honorable Sherri K. Tibbe Opinion No. GA-0667
Hays County Criminal District Attorney
110 East Martin Luther King Re: Whether a county bail bond board may
San Marcos, Texas 78666 suspend or revoke an individual surety's license
for that licensee's activity relating to an out-of-
county bond (RQ-0700-GA)
Dear Ms. Tibbe:
You ask whether a county bail bond board may suspend or revoke an individual surety's
license for that licensee's activity relating to an out-of-county bond. l You explain that you use the
term "out-of-county bail bond" to refer to a bond executed in Hays County for an arrest in Hays
County on a warrant from another county. See Request Letter, supra note 1, at 1 n.l; see also TEx.
CODE CRIM. PROC. ANN. art. 15.18(a)(1) (Vernon Supp. 2008) (directing the magistrate before whom
a person arrested under a warrant issued in another county is brought to take bail if allowed by law
and immediately to transmit the bond to the court with jurisdiction of the offense).
You indicate that Hays County has created a bail bond board; consequently, bail bond
sureties operating in the county are regulated under Occupations Code chapter 1704. See Request
Letter, supra note 1, at 1; see also TEX. OCC. CODE ANN. §§ 1704.002(2), .052, .101(3) (Vernon
2004) (authorizing a county with a population of less than 110,0002 to create a bail bond board to
"regulate each phase of the bonding business in the county"); Font v. Carr, 867 S.W.2d 873, 882
(Tex. App.-Houston [1st Dist.] 1993, writ dism' d w.o.j.) (concluding that chapter 1704's statutory
predecessor, article 2372p-3 of the Revised Civil Statutes,3 controlled "over the more general
ISee Letter from Honorable Sherri K. Tibbe, Hays County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 4 (Apr. 8, 2008) (on file with the Opinion Committee, also available at
www.texasattomeygeneral.gov) [hereinafter Request Letter].
2In 2000 Hays County population was less than 110,000. See UNITED STATES CENSUS BUREAU, 2000 CENSUS
OF POPULATION: POPULATION FINDER (Hays County population: 97,589), available at http://quickfacts.census.gov/qfd
/states/48/48209.html (last visited Sept. 25, 2008); see also TEX. GOV'T CODE ANN. § 311.005(3) (Vernon 2005)
(defming the term "population" generally for all codes to mean "the population shown by the most recent federal
decennial census").
3Article 2372p-3, Revised Civil Statutes, was repealed and recodified as Occupations Code chapter 1704 in
1999. See Act of May 13,1999, 76th Leg., R.S., ch. 388, §§ 1, 6(a), 1999 Tex. Gen. Laws 1431, 2279-91, 2439-40.
The Honorable Sherri K. Tibbe - Page 2 (GA-0667)
provisions of' Code of Criminal Procedure chapter 17 "[i]n the counties where article 2372p-3
applie[d]"). In a county subject to chapter 1704, no one except an attorney may "act as a bail bond
surety or as an agent for a corporate surety in the county unless the person holds a license issued
under" chapter 1704. TEx. Oce. CODE ANN. §§ 1704.151, .163 (Vernon 2004 & Supp. 2008);
accord id § 1704.303(a) (Vernon 2004) ("A person required to be licensed under this chapter may
not execute a bail bond unless the person holds a license issued under this chapter."). For purposes
of chapter 1704, the terms "bail bond" and "bail bond surety" are defined as follows:
(1 ) "Bail bond" means a cash deposit, or similar deposit or
written undertaking, or a bond or other security, given to guarantee
the appearance of a defendant in a criminal case. 4
(2) "Bail bond surety" means a person who:
(A) executes a bail bond as a surety or cosurety for
another person; or
(B) for compensation deposits cash to ensure the
appearance in court of a person accused of a crime.
Id § 1704.001(1)-(2) (Vernon Supp. 2008).
You relate the following facts: In approximately September 2005 an individual (the
"defendant") was arrested in Hays County on a larceny warrant issued by Fort Bend County. See
Request Letter, supra note 1, at 2. At that time a licensed bail bond surety in Hays County "executed
a bail bond in Hays County" for the defendant in the amount of $50,000. Id. As security for the
bond, the bail bond surety collected $14,000, paid by credit card, from an indemnitor. See ide
Although the defendant's bond "was revoked on October 12, 2006[,] for ... failure to appear," the
bond was not forfeited. See id The larceny charge against the defendant was "finally disposed on
October 29, 2007." Id. On November 1, 2007, the indemnitor by letter requested the bail bond
surety to return the security and enclosed a copy of the final judgment in the larceny case. See ·id
On December 5, 2007, the indemnitor filed a complaint with the Hays County Bail Bond Board (the
"Board"), alleging that the bail bond surety had not returned the security. See id "When the Hays
County District Attorney's Office contacted [the bail bond surety] about the return of the security,
[the surety] stated that he needed a written release from Fort Bend County before he would return"
it. Id The Hays County District Attorney then "recommended to the Board that the security be
returned to the indemnitor[] because the bond was not forfeited [as a result ofthe October 12, 2006,
failure to appear], the criminal case was finally disposed, and section 1704.301 [ofthe Occupations
Code] did not require a written release by the Fort Bend prosecutor" as a condition precedent to the
4"A bail bond is a written undertaking entered into by the defendant and his sureties for the appearance ofthe
principal before some court or magistrate to answer a criminal accusation. As such, a bail bond is a contract·between
the surety (the bonding company) and the State." Briones v. State, 76 S.W.3d 591, 594-95 (Tex. App.-Corpus Christi
2002, no pet.) (citations omitted).
The Honorable Sherri K. Tibbe - Page 3 (GA-0667)
return of the security.5 Id On January 18, 2008, the Board voted to approve the district attorney's
recommendation and requested the bail bond surety by letter to return the security. See ida He did
not do so. See ida As a result, on March 28, 2008, the Board scheduled "a hearing to consider
whether to commence formal action to suspend or revoke" the surety's licen,se. See id But the
Board tabled the item pending the attorney general's opinion regarding the county bail bond board's
authority over out-of-county bonds. See id
You do not ask whether the bail bond surety in this instance has violated section 1704.301.
See Request Letter, supra note 1, at 4; see also supra note 5 (setting out section 1704.301). Rather,
you suggest that, under chapter 1704, it "is not clear if the Board's authority extends to activity on
out-of-county bonds." Request Letter, supra note 1, at 1. You therefore ask whether the Board may
"suspend or revoke an individual surety license for that licensee's activity relating to an out-of-
county bond." Id. at 4.
Under section 1704.252(1), a bail bond board has express authority to revoke or suspend a
license if a license holder "violates this chapter or a rule adopted by the board under this chapter."
TEX. OCC. CODE ANN. § 1704.252(1) (Vernon 2004); accord ida § 1704.102(a)(3) (requiring a bail
bond board to "suspend or revoke a license for a violation of' chapter 1704 "or a rule adopted by the
board under" chapter 1704); see also Harris County Bail BondBd. v. Blackwood, 41 S.W.3d 123,
124 (Tex. 2001) (stating that "[a] county bail bond board is responsible for all aspects of the
licensing ofbondsmen in thatcounty, including granting, denying, or renewing licenses"); Tex. Att'y
Gen. Ope No. GA-0197 (2004) at 5-6 (stating that Occupations Code section 1704.252(1)
incorporates conduct that is not specifically listed in section 1704.252(2)-(16) "but that violates
other chapter 1704 provisions," such as section 1704.301). Nothing in the statute expressly limits
the violations that can trigger revocation or suspension to bonds executed on in-county warrants;
indeed, the statute refers without qualification to violations ofchapter 1704 or board rule. See TEX.
OCC. CODE ANN. § 1704.102(a)(3) (Vernon 2004).
In addition, section 1704.101 (3) authorizes a county bail bond board to "supervise and
regulate each phase ofthe bonding business in the county." Id § 1704.101(3). The term "bonding
business" means "the solicitation, negotiation, or execution of a bail bond by a bail bond surety."
Id. § 1704.001(4) (Vernon Supp. 2008). As we stated in Opinion GA-0002, an out-of-county bail
50ccupations Code section 1704.301 requires a bail bond surety to return security within thirty days ofthe date
that the owner of the security:
(1) requests return of the security in writing; and
(2) submits to the bail bond surety written evidence of the conclusion of:
(A) the payment agreement; or
(B) all of the criminal cases for which the security was given.
TEX. Dcc. CODE ANN. § 1704.301 (Vernon 2004).
The Honorable Sherri K. Tibbe - Page 4 (GA-0667)
bond is executed in the county that licensed the bail bond surety, not the county that issued the
warrant. See Tex. Att'y Gen. Ope No. GA-0002 (2002) at 3. Thus, under section 1704.101, "each
phase of the bonding business" that is associated with a bond executed in the licensing county is
subject to that county board's supervision. This encompasses the disposition ofthe bond-whether
it is forfeited so that the bail bond surety retains the security or whether the bond is not forfeited so
that the bail bond surety must return the security to the indemnitor.
We consequently conclude that a county bail bond board's enforcement authority extends to
all violations committed by a bail bond surety licensed by that board with respect to all bonds
executed in that county, including those that relate to a warrant issued by another county. A bail
bond surety may violate chapter 1704 on an out-of-county bond that was executed in the licensing
county, and if the surety does so, that violation is subject to censure by the licensing county's bail
bond board.
The Honorable Sherri K. Tibbe - Page 5 (GA-0667)
SUMMARY
A county bail bond board may revoke or suspend the license
of a bail bond surety licensed in that county if the surety violates
chapter 1704 of the Occupations Code or a rule adopted under that
chapter on a bond executed in that county on a warrant issued by
another county.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee