### .THE A~OHXEY 

## GENERAL OF %%CXAS AUUTIN .I. TEXAW ‘(YILIA WILBON ATTORNW GssI!xsAx. WY 29, 1958

Hon. Zollie Steakley Secretary

of State CapitolStation Austin,Texas

Dear Mr. Steakley: opinion No. w-438 Re: The authority of the Secretary of State to approvea charter for corporations

having as their purposethe issuance of bail bonds. In your letteryou request an opinionof this office "conceraing the authority

of this officeto accept, file and approvethe proposed charters"

which have purposeclauses that would authorizecorporationsto carry on the businessof all types of criminal bail bonds. At the time the Legislature enactedthe Texas BusinessCorporation

Act in 1955, corporations engagingin the businessof surety on bail bonds had long been required to obtain certificates of authority from the Board of Insurance Commissioners.

These corporations received their certificates of authority

underArticle 8.01 of the Insurance Code as casualty

companies,

or under prior Chapter7 of the Insurance Code as fidelity,

guaranty,

and suretycompanies. These corporations were furtherregulated by the Board of Insurance Commissioners

by Article 5.13, concerning regulation

of rates,and Article 21.10, concerning the requirement of an affidavit

of non-violation

of the agencyprovisions. Casualtyinsurance comuanies

had long been authorized to act as surety for the-execution of bail bonds. CfT Ex Parte Osborne,127 Tex. Grim. 453, 77 S.W.2d 537.

Article 271-a,Vernon's Code of Criminal

Procedure,

provides that: n

. . . any bail bond or recognizance
. . . may be given or executed

by such principal

and any corporation authorized

by law to act as surety . . ." The only corporations that had been authorized by law to act as surety were under the supervision of the Board of lnsuran ce Commissioners

or Banking Commissioner.Article 271-awas enacted in 1929 as an apparent codification

of EX Parte Cook, 62 Tex. Grim. 22, 136 S.W. 67 (1911). In 1955, the Legislature authorized

the Secretary

of State to approve charters which contained

purpose clausesof the widestvarietywith certainenumerated exceptions.Article 2.01-B(4) of theHon. Zollia Steakley, page 2 (Hl-438)

Texas Burine.ss

Corporation

Act enumerates

as one of the exclurlonr, “(d) insurance

companies

of everytype and character that operate

under the insurance

laws or this state . . .” At the time or the enactlDent of this cxclurlonthe only corporations authoriscd

to act as sureties on ball bonds vere those corporations which were regulated ua&r the insurance

or banking laws, such as Chapter7A, Chapter 8, or Chapter 7B of the Insurance Code,
_ Thun, your question narrows

to whether or not subsequentlegirlatlonin 1957 bar.amnded the intention and language

of the Texas Buolneoo Corporation Act an it wao enacted in 1955. In your opinionrequest you noted that Article 271-c of the Code of CriminalProcedure, whichwas enactedas H. B. 11, 55th Leg., (R.S. lgfl), Ch. 420, p. 1259,and amended in the First Called Session ao 8. B. 25, Ch. 24, p. 51, referred to corporations

as well as persona in the bail bond burinerr. Not only is the 4ct by its terme regulatory rather than grantingadditional powersto the Secretary of State,

but recentlythe SupremeCourt of Texas in Smith v. Decker, go. A-6663, decided on April 30, 1958, that the entire statute is unconstitutional. The only corporations “authorized

by lav to act as surety”in accordance with Article 271-a, C.C.P ., were regulated

under Chapter7 and Chapter 8 of the Insurance Code. The repeal of Chapter7 of the Insurance Code, S. B. 165, 55th Leg., (R.S. 1957), Ch. 388, p. 1162,had the effect of limiting the doingof a corporate surety businesssolely to insurance

companies

regulated

under Chapter 8 by the Board of Insurante . It Is thus our opinion that the recent legislation referred to above has not altend or repealed the former requirement of a certificate of authorityfrola the Board of Insurancefor a corporation to engage in the businessof actingas surety on bail bonds for a premium. Therefore, it is our opinion that the Secretary of State does not have the authority to approve

chartersstatingthe doing of a bail bond businessas a corporate purpose.

Article 2.01-B(4)(d) of the Texar,

Business Corporation Act; the Code of CriminalProcedure,

Article271-a;and Article 8.01 of the Insurance

Cods restrict

the corporate business of insurance of bail bonds to those corporationr

which have a certificate of authority from the Board of Insurance. Therefore, the Secretary of State does not haveEon. Zollie Steakley, page 3 (WW-438)

authority

to approveapplications for corporate charters

which state the business of surety on criminal ball bonds as a purpose. Very trulyyours, WILL WILsOn Attorney

Generalof Texas

Mac0 stevart Assistant MS:lSl APPROVED: OPINION COMMITTEE: Geo. P. Blackburn, Chairman Wallace P. Finfrock Riley Eugene Fletcher Tom I. McFarling PJZVIEWEDFORTHE!ATTORNEYGENERAL BY: W. V. Geppert