# @f~'**·_\ .** 

# ~ ATTORNEY GENERAL OF TEXAS



### The Honorable Joel D. Littlefield Hunt County Attorney Post Office Box 1097 Greenville, Texas 75403-1097

Dear Mr. Littlefield: GREG ABBOTT



### December 8, 2011 Opinion No. GA-0895 Re: Authority ofacountybail bond board to enact a rule that restricts a bail bond licensee from employing a person who is currently on probation or parole, or who is the defendant in a pending criminal case (RQ-0976-GA)

You ask about the authority ofa county bail bond board to enact a rule that restricts a bail bond licensee from employing an individual who is currently on probation or parole, or who is the defendant in a pending criminal case.! You specifically inquire about Rule 9.1 (g), adopted by the Hunt County Bail Bond Board (the "Board"). 

### See Request Letter at 2.2 Rule 9.1 defines "employee" as "any person hired by a Licensed Surety who performs" certain duties. Board Rule 9.1. The rule further provides that the employee (f) 

### must not have been convicted of a misdemeanor involving moral turpitude or a felony in the past ten (10) years and (g) is not currently on probation, parole or has a misdemeanor or felony case pending. [d. 

### Subsection (f) 

### ofthe Board's rule closely tracks the language ofa 2001 statute: A person may not accept or receive from a license holder money, property, or any other thing of value as payment for employment with a bonding business if, within the preceding 10

ILetterfrom HonorableJoelD. Littlefield, HuntCountyAttorney, to HonorableGregAbbott, Attorney General ofTexas (June 13, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter"). 2See id. at Exhibit A (Rules and Regulations of the Hunt County Bail Bond Board at 15 (Sept. 16,2010» ("Board Rule 9.1 ").The Honorable Joel D. Littlefield

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years, the person has been convicted of a misdemeanor involving moral turpitude or ofa felony. TEX. Oee. CODE ANN. § 1704.302(c) (West 2004).3 Subsection (g) ofthe Board's rule, however, imposes additional requirements that exceed the prohibitions established by the Legislature when it enacted section 1704.302, specifically that the Board would prohibit a licensee from employing an individual who is currently on probation or parole, or who is the subject ofa pending felony or misdemeanorprosecution. See BoardRule 9.1 (g). You suggestthat, by virtue ofthe broad authority conferred upon a bail bond board, the promulgation of subsection (g) is within the power ofthe Board in question.4 Pursuant to chapter 1704 of the Occupations Code, a bail bond board is authorized, in relevant part, to (1) exercise powers incidental or necessary to the administration ofthis chapter;
(3) supervise and regulate each phase of the bonding business in the county; (4) adoptandpostrules necessaryto implementthis chapter;

TEX. Oee. CODE ANN. § 1704.101 (West 2004). Your briefrelies on an appellate decision from 1989 that declaredthatthis "broadrule-makingpowerimpliedly authorizes the [Dallas CountyBail Bond] Board to supervise and regulate employees ofbondsmen to the extent that such employees perform meaningful duties in the bonding business." Dallas Cnty. Bail Bond Bd. v. Stein, 771 S.W.2d 577, 580 (Tex. App.-Dallas 1989, writ denied); see County Attorney's Brief at 1-2. However, the Stein opinion was issued before the Legislature had "expressly set forth eligibility requirementsforemployees oflicensees." Stein, 771 S.W.2dat 580. As the opinionnoted,however, "an agency's rules mustbe consistentwith the laws ofthis state." [d. Moreover, the Texas Supreme Courthas observed that, "[i]n deciding whether aparticular administrative agency has exceededits rule-makingpowers, the determinative factor is whether the rule's provisions are 'in harmony with the general objectives ofthe Actinvolved.'" Pruettv. Harris Cnty. BailBondBd. ,249 S.W.3d447, 452 (Tex. 2008) (quoting Gerstv. Oak CliffSavs. &LoanAss'n.,432 S.W.2d702,706(Tex. 1968)).

3Act ofMay 27,2001, 77th Leg., R
.S., ch
. 1262, § 12,2001 Tex. Gen
. Laws 2996, 3000. 4See Request Letter at Exhibit B (Brieffrom Joel D. Littlefield at 1-2) ("County Attorney's Brief').The Honorable Joel D. Littlefield

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As noted above, in 20.0 1theLegislatureplaced specificrestrictions on abail bondbusiness's employees. See TEX. OCC. CODEANN. § 1704.302(c) (West 2004).5 Under subsection (g) ofRule 9.1, the Hunt County Bail Bond Board imposes additional restrictions beyond those prescribed by the Legislature by denying employment to any person who is currently on probation or parole without regard to whether the individual was convicted within the past ten years. See Board Rule 9.1(g). The rule further denies employment to any person who is the subject of apending felony or misdemeanor. See id. In 1984, an appellate court considered whether a bail bond board was permittedto promulgate arulethatrequired alicenseeto furnish a$100,000 security depositin order to do business in the county. See Tex. Fire & Cas. Co. v. Harris Cnty. BailBondBd., 684 S.W.2d 177 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). The court said that, because the relevant statute imposes a security deposit ofnot less than $5,000, but is otherwise determined by the applicant, the local rule establishing a flat $100,000 deposit "is a minimum in direct conflict with the statutory authority
." Tex. Fire & Cas. Co., 684 S.W.2d at 179. "The local rules thus impermissiblyimpose additional and conflicting burdens on bail bond applicants and consequently must fail." [d.; see also Bexar Cnty. Bail BondBd. v. Deckard, 604 S.W.2d 214,217 (Tex. Civ. App.-San Antonio 1980, no writ) ("The function ofthe bailbondboardis to administerthe statute, not to amend it, at least in the absence of statutory language indicating a legislative intent that the board should have the power to add to the qualifications enumerated by the [L]egislature.,,).6 Like the rules established by the bail bond boards in the Harris and Bexar County cases, BoardRule 9.1(g) prescrib'es requirements for employees ofbailbondlicensees that "impermissibly impose additional and conflicting burdens" on those licensees and their employees. Tex. Fire & Cas. Co., 684 S.W.2d at 179. As a result, we conclude that Rule 9.1(g) exceeds the authority ofthe Board.

5Act ofMay 27,2001, 77th Leg., R.S., ch. 1262, § 12,2001 Tex. Gen. Laws 2996, 3000. (,The Texas Supreme Court's opinion in Pruett is not to the contrary. In that case, a county bail bond board suspended the license ofabail bondsman for violating two rules governing solicitation. Pruett, 249 S.W.3d at451. The rules prohibited a licensee from soliciting within twenty-four hours after the execution ofan arrest warrant and during certain "non-business hours. " Id
. at 451 n.3. Although the court emphasized that the board's "explicit power is unambiguously broad" and noted that "no part of the Occupations Code
... would appear to single out solicitation as an impermissible area ofagency rule-making," the court also observed that "courts have held bail bond boards may not add to licensing requirements in light ofthe extremely detailed licensing regime that the Legislature established." Id. at 453-54. The court distinguished the solicitation rules from the kind ofadditional licensing requirements at issue in Texas Fire & Casualty Co. by noting that "a board's attempt to alter or add to licensing requirements specified in the Bail Bond Act is not the same as a board's regulation ofbondsmen once they are licensed." [d. at454. In the situation you pose, the Hunt County Bail Bond Board has attempted to impose on both bail bondsmen and their employees burdens that are additional to and in conflictwith those established by the Legislature. Compare BoardRule 9.1 (g), with TEX. Dcc. CODE ANN. § 1704.302(c) (West 2004)
.

### The Honorable Joel D. Littlefield

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### SUMMARY A rule ofthe Hunt County Bail Bond Board that restricts a bail bond licensee from employing an individual who is currently on probation or parole, or is the defendant in a pending criminal case, impermissibly imposes burdens on those employees that are additional to and in conflict with section 1704.302 of the Texas Occupations Code. The rule thus exceeds the authority ofthe Board.

DANIELT. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Very truly yours,

Assistant Attorney General, Opinion Committee