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 sheriffhas a conflict ofinterest under Local Government Code chapter 171 concerning certain bail-bond duties of the sheriff, when the Sheriffs stepson andhis stepson'swife are employed
as agents ofa bail bond surety (RQ-0849-GA)

You ask whether a sheriffhas a conflict ofinterest under Local Government Code chapter 171 concerning certain bail bond duties ofthe Sheriff, when his stepson and his stepson's wife are employed as agents ofa bail surety.' You inform us that the Sheriffis a member ofthe Johnson County Bail Bond Board (the "Board") under chapter 1704 ofthe 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 ofa sheriffto accept or reject a defendant's bail bond or, after a defendant's bond has been forfeited, incarceratethe defendant orverifythedefendant's incarcerationin anotherjurisdiction. See Request Letter at 4-7 (citing articles 17.16 and 22.13(a)(5)(A)-(B) ofthe Code ofCriminal Procedure, and sections 1704.201 and 1704.2535 ofthe Occupations Code). Chapter 171 generally governs local public officials' pecuniary conflicts ofinterest. TEx. Loc. GOy'T CODE ANN. §§ 171.001-.010 (Vernon 2008). A "[l]ocal public official" is "amember ofthe governing body or another officer, whether elected, appointed, paid, or unpaid, ofany district (including a school district), county, municipality, precinct, central appraisal district, transitauthority
or district, or other local governmental entity who exercises responsibilities beyond those that are advisory in nature." 

### Id. § 171.001(1). A sheriffis an elected county officer. TEx. CONST. art. V, 

### § 23 ("There shall be elected by the qualified voters ofeach county a Sheriff, who shall hold his office for the term offour years, whose duties, qualifications, perquisites, and fees ofoffice, shall be prescribed bythe Legislature

...."). A sheriffexercises 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 sheriffas 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 sheriffofeach county is the keeper ofthe countyjail."). Thus, the sheriffis a local public official generally subjectto chapter 171. 

### See Tex. Att'y Gen. Op. No. GA-0419 (2006) at 1 n.2 (suggestingthat sheriffconsiderpotential application ofchapter 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 ofthe 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 onofficialbonds required ofofficers 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 notrequired to abstain from participation, however, "ifa majority ofthe members ofthe governmental entity" are likewise required to file an affidavit ofinterest in the same matter. 

### Id. 

### § 171.004(c).

Youhave askedthatwe assumethatthe Sheriffs stepsonhas a substantial interestinthebail bond company because ofthe salarythe 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 interestunder this section." TEx. Loc. GOy'T CODEANN. § 171.002(c) (Vernon 2008). Consanguinity is a relationship by blood, including adoption, and is determinedbythe number ofgenerationsthat separate two individuals. 

### See TEx. GOy'TCODEANN. 

### §§ 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 ofthe 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 ofone ofthe 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 ofhis spouse."). Applying these statutory provisions, the Sheriffis related to his wife's son inthe first degree by affinity. Thus, for purposes ofthis opinion, we assume thatthe Sheriffhas a "substantial interest" inthe bail bond company by virtue ofhis relationship to his stepson.

Your questions do not concernthe Sheriffs duties as a member ofthe Board, and we do not address them here. Rather, you ask about individual duties ofthe Sheriffinhis 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 sufficientlybroadto include an entity such as a bailbond company. TEx. Loc. GOV'TCODEANN. § 171.00I(2) (Vemon 2008).

### The Honorable Bill Moore

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sheriffconcerning his acceptance ofa bail bond and other duties ofthe Sherifffollowing 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 ofthe existence ofprobable 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-0510, this office concludedthat section 171.004 didnot applyto 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 sheriffs 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-0510 and JM-776, this office determined from a review of the statutethatthe Legislature couldnothave reasonably intended itto applyto the law enforcement decisions at issue in those opinions. Section 171.004 provides: (a) Ifa 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 ofthe interest and shall abstain from further participation inthe 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 onthe public[.J

'Under section 1704.201 ofthe Occupations Code, a sheriffis 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 ofrelease ofthe defendant for whom the bond is executed." TEX. Occ. CODE ANN. § 1704.20I (Vernon 2004). The sheriffis notto accept a surety's bonds, however, ifthe board has notified the sheriffthat a surety has not paid a fmaljudgment offorfeiture, until the surety has satisfied thejudgment. Id. § 1704.2535. You suggest that the Sheriffs review and acceptance orrefusal 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 ofthe Code ofCriroinal Procedure provides that a defendant's tiroely incarceration after ajudgmentofforfeiture mayrelieve the surety ofliability onthe 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 ajudgment offorfeiture. Id art. 17. I6(a}--{b) (Vernon 2005). You contendthatthe Sheriffs decisionto apprehend and incarcerate a defendant under article 22.13 orto provide verification ofincarceration under article 17.16 would have a special economic effect on the surety. Request Letter at 6-7.The Honorable Bill Moore

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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 ofa 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 ofa 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) (applicationto countyjudge orcommissionerwithrespect to commissioners court vote ordecision); JC-O 155 (1999) (applicationto memberofcitycouncil). A memberofa 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 bodyto vote or decide the issues concerning the business entity without the involvement ofthe 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 ofthe 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 ofthe 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 "ajustand reasonable result" and "a resultfeasible ofexecution"); Tex. Att'yGen. Op. No. JM-776 (1987) at5 (reasoningthat "[ 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, whenthe lawrequires a specific officialto perform a certain duty, abstention may not be a viable option. You ask about certain statutory duties ofa sheriffto 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) ofthe Code ofCriminal Procedure, and sections 1704.201 and 1704.2535 of the Occupations Code); see TEx. CONST. art. XVI, 

### § 1 (constitutional oath ofelected officers to "faithfully execute the duties ofthe office"); TEx. Loc. GOV'T CODEANN. § 85.001 (b)( 4)(A) (Vernon2008) (sheriffsbondconditionedonsheriffsfaithful

'In severalprioropinions this office held openthe possibilitythatduties imposed onan individual officialmight constitute a "decision" subject to section 171.004 ofthe 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 thatchapter 171 does notpreclude a sherifffrom acting as a volunteerfrrefighter). CfTex. Att'y Gen. Op. No. GA-05\0 (2009) at2 (statingthat ''the statutory disclosure and abstentionrequirements [ofsection 171.004] do not apply to a local public official who is not authorized to participate in any vote or decision ofthe local governing body that could have
a special economic effect on the official's business entity").

### The Honorable Bill 

### Moore

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performance ofduties "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 ofbail bond and forfeiture duties under sections 1704.201 and 1704.2535 ofthe Texas Occupations Code and articles 17.16 and 22.13 of the Texas Code ofCriminal Procedure when the sheriff's stepson or stepson's wife are agents ofa bail bond surety.

'Evenwhen a deputyperfonns duties of the sheriff, the sheriff remains responsible for thedeputy'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) (statingthat a sheriff's statutory duty as keeper ofthe countyjail "cannotbe avoided by delegating authority over thejail to deputies or other subordinates").

### The Honorable 

### Bill Moore

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### SUMMARY

The conflict ofinterest provisions of section 171.004 ofthe 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 ofthe Texas Code of Criminal Procedure when the sheriffs stepson or stepson's wife are agents ofa bail bond surety.

ANDREW WEBER First Assistant Attorney General

NANCY S. FULLER Chair, Opinion Committee

William A. 

### Hill Assistant Attorney General, Opinion Committee