ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Bill Moore 

Johnson County Attorney 

Guinn Justice Center 

204 South Buffalo Avenue, Suite 410 

Cleburne, Texas 76033-5404 

Dear Mr. Moore: 

June 28,2010 

Opinion No. GA-0784 

Re: Whether a sheriff has a conflict of interest under 

Local Government Code chapter 171 concerning 

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) 

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 of the sheriff, the sheriff remains 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