### DAN MORALES

ATTORNEY GENERAL 

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mtornep State ofQJexaa September 2, 1998 

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The Honorable Richard J.Miller Bell County Attorney P.O. Box 1127 Belton, Texas 765 13 The Honorable Bill Moore Johnson County Attorney 2North Main Street, First Floor Courthouse Clebume, Texas 76031 Opinion No. DM-483 Re: Whether a sheriffs authority to refuse to accept abail bond executed by an attorney for a client the attorney represents in acriminal case is governed by article 2372p-3, V.T.C.S., orCode of Criminal Procedure articles 17.11, 17.13, and 17.14; whether a sheriff may require an attorney or bondsman to post collateral; and related questions (RQ-968, RQ-1100)
Dear Mr. Miller and Mr. Moore: Mr. Miller asks anumber of questions about the authority of a sheriff to refuse to accept a bail bond executed by an attorney in a county where the execution of bail bonds is governed by article 237213-3,V.T.C.S. (the “act”).’ The cmx ofhis query iswhether asheriffs authority torefuse to accept abail bond executed by an attorney for aclient the attorney represents in acriminal case isgoverned by article 2372~.3 or Code ofCriminal Procedure articles 17.11,17.13, and 17.14. For the reasons discussed below, we believe that each ofthese provisions is applicable. The execution ofbail bonds in Mr. Moore’s county is not governed by article 2372~.3 but rather by the Code ofCriminal Procedure? Mr. Moore asks whether articles 17.11,17.13, and 17.14 authorize a sheriff to require abail bondsman or attorney who wishes to execute abond topost real or personal property as collateral. As discussed below, we agree with his assessment that a sheriff isnot authorized to do so. Because both opinion requests touch upon the authority ofasheriffunder articles 17.11, 17.13, and 17.14, we address them together.

‘Article 2372~.3 governs the execution of bail bonds in a county with a population in excess of 110,000. V.T.C.S. art. 2372~~3, 5 3(“The provisions of this Act apply only to the execution ofbail bonds in counties having a population of more than 110,000 according to the last federal census or in counties of less than 110,000 where aboard has been created.“). Bell County has apopulation of 191,088. See U.S. Bureau of Census, U.S. Dep’t of Commerce, 1990 Census of Population: Texas 1(1990).

‘Mr. Moore informs us that Johnson County has apopulation ofless than 110,000 and that ithas not exercised the option to establish a bail bond board. Therefore, article 2372p-3 does not apply to the execution ofbail bonds in Johnson County. See V.T.C.S. art. 2372~.3,s 3.The Honorable Richard J.Miller - Page 2

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We begin with Mr. Miller’s questions, which first require us to sort out the relationship between article 237213-3and the Code ofCriminal Procedure provisions with respect to an attorney who executes a bond for a client the attorney represents in a criminal case. Section 3 of article 2372p-3 provides that in a county governed by its provisions, no person may act as abondsman except aperson licensed under the act-’by the county bail bond board or, ifcertain requirements are satisfied, an attomey.4 Thus, an attorney who satisfies certain requirements is excepted from the general mandate that aperson who executes bail bonds obtain alicense from the county bail bond board. The requirements an attorney must satisfy to fall within the exception are set forth in section , 3(e), which provides inpertinent part as follows:

Persons licensed to practice law in this state may execute bail bonds or act as sureties for persons they actually represent in criminal cases without being licensed under this Act, but they areprohibitedfrom engaging in the practices made the basisfor revocation oflicense under thisAct and iffound bythesheriffto have violated any term ofthis Act, may notqua& thereafter under the exception provided in this subsection unless and until they come into compliance with those practices made the basis ofrevocation under this Act. V.T.C.S. art. 2372p-3, $ 3(e) (emphasis added). This exception applies only to an attorney who executes abail bond for aclient the attorney represents in acriminal case. Such an attorney isnot wholly free from the requirements ofarticle 2372~~3, however, because the exception only applies ifthe attorney has not engaged in“practices made thebasis forrevocation oflicense under this Act.” Id. Significantly for our purposes, itisthe sheriffwho is authorized to make the determination that anattorney has engaged indisqualifying conduct. See id. (“iffound by the sheriffto have violated”). Code ofCriminal Procedure articles 17.11, 17.13, and 17.14 predate article 2372p-3, which was enacted in 1973.5 Article 17.11 provides that an ofticeP taking abail bond

shall require evidence ofthe sufficiency ofthe security offered; but in every case, one surety shall be sufficient, ifitbe made to appear that such surety is

‘Id. 5 3(a)(l). 4Id. 53(a)(2),

‘The CodeofCriminalProcedureprovisionspredate 1925 andwererevised in 1965. See Act ofMay27,1965, 59th Leg., R.S., ch. 722, 5 1, 1965 Tex. Gen. Laws 317,376.77. Article 2372p-3 was enacted in 1973. See Act of May 18, 1973,63d Leg., R.S., ch. 550, 1973 Tex. Gen. Laws 1520,152O.

6For provisions governing when apeace officer may set and take bail, see Code of Grim. Proc. arts. 17.20 - .22; see also Hokr v. Stafe, 545 S.W.2d 463 (Tex. Grim. App. 1977) (peace officer may set and take bail in misdemeanor case ifmagistrate not available). In answering these queries, we assume they ask only about situations in which the sheriff is authorized to take bail.

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worth atleast double the amount ofthe sum forwhich he isbound, exclusive of all property exempted by law from execution, and of debts or other encumbrances; and that he isaresident ofthis state, and has property therein liable to execution worth the sum for which he isbound. Code Crim. Proc. art. 17.11, 5 1. Article 17.13 authorizes an officer taking abail bond to obtain an affidavit testing its sufficiency.’ Under article 17.14, however, such an affidavit isnot conclusive. That article authorizes the officer taking the bond to obtain additional evidence.* Mr. Miller asks, in essence, whether the authority of a sheriff torefuse to accept abail bond executed by an attorney for aclient the attorney represents in acriminal case is governed by article 2372p-3 or Code of Criminal Procedure articles 17.11, 17.13, and 17.14. We believe that these provisions may be harmonized and that each applies: Article 2372p-3 governs the sheriffs determination whether an attorney is exempt from the act’s licensing requirements. A sheriffs authority to determine the sufficiency ofthe security offered by an exempt attorney is governed by the Code of Criminal Procedure. Our reasons for this conclusion follow. InMinton v.Frank, 545 S.W.2d 442 (Tex. 1976), two attorneys challenged acounty sheriff s policy requiring attorneys to make acash deposit or execute adeed oftrust in order to execute bail bonds for clients. The requirements ofthe sheriffs policy were nearly identical to article 2372p-3 requirements applicable to licensees. The Texas Supreme Court concluded that attorneys were wholly exempt from the act’s requirements for license applicants, including the act’s bonding requirements. Id. at445. The court also opined as follows:

Attorneys are subject to article 2372p-3, to the extent that [it] prohibits them from engaging in the practices made the basis for revocation of alicense under the Act, and provides that ifthey are found guilty of such

‘Code of Criminal Procedure article 17.13 provides in pertinent part as follows:

To test the sufficiency of the security offered to any bail bond, unless the court or officer taking the same is fully satisfied as to its sufficiency, the following oath shall be made in writing and subscribed by the sureties: “1, do swear that I am worth, in my own right, at least the sum of (here insert the amount in which the surety is bound), after deducting from my property all that which is exempt by the Constitution and Laws of the State from forced sale, and after the payment of all my debts of every description, whether individual OIsecurity debts, and after satisfying all encumbrances upon my property which are known tome; that Ireside in County, and have property in this State liable to execution worth said amount OImore.

‘Code of Criminal Procedure article 17.14 provides as follows:

Such aff&vit shall not be conclusive as to the sufficiency of the security; and ifthe court or off&r taking the bail bond isnot fully satisfied asto the sufficiency ofthe security offered, further evidence shall be required before approving the same.

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practices they may not thereafter claim the exemption for attorneys. Article 17.11 ofthe Code ofCriminal Procedure directs the officer taking a bail bond to require evidence of the sufficiency of the security offered. Section 14ofthe Act gives the sheriff the sole responsibility ofreceiving and approving bail bonds. The trial court correctly held [that] petitioners are subject to the provisions of chapter 17 of the Code of Criminal Procedure which deals with the making and sufficiency ofbail bonds. Id. at445-46. Article 2372p-3 was significantly revised in 1981, several years after the supreme court’s decision in Minton, to its present form. The attorney exemption in section 3 was moved from subsection (b) to subsection (e) and amended to state that attorneys are not exempt from licensure “if found by the sheriff to have violated any term of this Act” and to state that attorneys found to have violated a term of the act are not qualified for exemption “unless and until they come into compliance with those practices made the basis ofrevocation under this Act.‘* The legislature also added the following caveat to the attorney exemption:

Notwithstanding any other provision of this subsection, no person licensed topractice law shall be relieved ofliability on abail bond he has executed for the sole reason that he has not been employed to represent the principal on the merits of the case ifhe has been paid afee for the execution of the bail bond.‘O In addition, the security requirements for licensees were increased in section 6, subsections (f)and (g), andthe bases forrevocation ofabail bond license were significantly expanded from eight to twelve in section 9(b).” Specifically, the actwas amended topreclude alicensed bondsman from executing “bail bonds that inthe aggregate exceed 10times the value oftheproperty held assecurity on deposit or in trust under Subsection (f)” in section 6(g)‘* and to add the following as basis for license revocation in section 9(b)(l2): “[O]n more than one occasion failing to maintain the minimum amount of security required by this Act ormisrepresenting to any offkial oremployee of the official the limit supported by the amount of security to obtain the release of any person on

9V.T.C.S. art. 2372~.3,s 3(e), enactedby Act ofMay29, 1981,67thLeg., RX, ch. 312,s 1, 1981 Tex. Gen. Laws 875,876.

“Id.

“CompareV.T.C.S. art. 2372p-3 asexcetptedinMinton v.Frank, 545 S.W.2d442.443-445 (Tex. 1976), with V.T.C.S. art. 2372p-3 as amended by Act of May 29, 1981, 67th Leg., R.S., ch. 312, 5 1, 1981 Tex. Gen. Laws 875, 875.

“V.T.C.S. art. 2372p-3,s 6(g),enactedbyActofMay29,1981,67thLeg., R.S.,ch. 312,s 1, 1981 Tex. Gen. Laws 875,880.

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bond.“” In addition, the legislature deleted provisions authorizing a sheriff to question the sufficiency of alicensee’s bond and added language in section 14requiring asheriff to accept abail bond from alicensee.14 This amendment effectively repealed a sheriffs authority under Code of Criminal Procedure article 17.14 to question the sufficiency of alicensee’s security. Font v. Cam, 867 S.W.2d 873, 881-82 (Tex. App.--Houston [lst Dist.] 1993, writ dism’d w.0.j.). Based on our review ofthe 1981 amendments to article 2372p-3, we see no indication that the legislature intended to make exempt attorneys subject to the act’s security requirements or to strip sheriffs oftheir authority to question the sufficiency ofexempt-attorney bail bonds. Because attorneys who execute bail bonds for clients are not subject to the act’s licensing requirements, including the security requirements, we believe that the legislature did not intend for the section 9(b)(12) prohibition to apply to an exempt attorney. Furthermore, the limitation on a sheriffs authority to refuse bail bonds in section 14 applies only to the bonds of licensees. The 1981 amendments to section 3(e) indicate that the legislature intended sheriffs to continue to exert authority over bonds of exempt attomeys.15 This construction ofthe 1981 changes to the act is also supported by a 1988 opinion ofthis office concluding that bonds executed by exempt attorneys arenot subject to regulation by acounty bail bond board under article 2372p-3 but, rather, are subject to regulation by the sheriff (and, in some instances, another officer taking the bond)“ under the Code ofCriminal Procedure:

[Attorneys] are exempt from obtaining alicense and are not required to comply with the requirements imposed upon an applicant
. . Minton v. Frank, 545 S.W.2d 442 (Tex. 1976). Licensed attorneys are subject tothe act insofar asthey are prohibited from engaging inpractices made the basis for revocation ofalicense. The actexpressly provides that this isamatter forthe determination ofthe sheriff. Any offrcer “taking abail bond shall require evidence ofthe sufficiency of the security offered.” Article 17.11 Code of Criminal Procedure. In Minton Y.Frank the court noted that bonds executed by attorneys are subject to this provision.

“V.T.C.S. art. 2372~3-3, $9(b)(l2), enactedby Act ofMay 29, 1981,67thLeg., R.S., ch. 312, 5 1, 1981 Tex. Gen. Laws 875,882.

“See V.T.C.S. art. 2372p-3,§ 14, enacted by Act of May 29, 1981,67th Leg., RX, ch. 312,s 1, 1981 Tex. Gen. Laws 875,884.

“We have reviewed the legislative history ofthe 1981amendments. We found no indication that the legislature intended to make exempt attorneys subject to the act’s security requirements or to strip sheriffs of their authority to question the sufficiency of exempt-attorney bail bonds.

%e supro note 6.

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Attorney General Opinion JM-901 (1988) at 3. For these reasons, we conclude that the sufficiency ofthe security offered by an attorney who executes abail bond for aclient is governed by the Code ofCriminal Procedure rather than sections 6(f), (g) and 9(b)(12) of article 2372p-3.” Mr. Miller asks a series ofrelated questions: “Under what situations, ifany, does asheriff have the discretion to refuse to accept abail bond executed by an attorney. ? Is the authority of an attorney unfettered as to the total amount ofbail bonds that he or she can execute .? [W]hat formula does the sheriff use to determine the total amount of bonds an attorney may execute? [W]hat legal discretion does the sheriff have and towhat extent may he go torequire verification of the attorney’s worth for bail bond purposes?“18 A sheriff must refuse to accept abail bond offered by an attorney onbehalf of aclient ifthe sheriff concludes that the attorney has “engag[ed] inpractices made the basis forrevocation of [a] license” under article 2372p-3.19 A sheriffs authority with respect tothe sufficiency ofthe security offered by an attorney exempt from licensure under article 2372p-3 is governed by articles 17.11, 17.13, and 17.14. Article 17.11 provides that “one surety shall be sufficient, ifit be made to appear that such surety isworth atleast double the amount ofthe sum forwhich he isbound.” Article 17.13 authorizes a sheriff to obtain an affidavit regarding the sufficiency of security while article 17.14 authorizes a sheriff to require additional evidence ifhe or she is not satisfied with the affidavit. Courts have recognized that these provisions grant asheriff broad discretion to determine whether security issufficient,*” provided that approval ofabail bond isnot arbitrarily withheld.” We believe that a sheriff is authorized to take into account other bail bonds an attorney has executed in determining the attorney’s worth under article 17.11?*

“Other revocationbases set forth in section 9(b) also appear tobe premised on abail bond board’s authority to license and regulate licensees. See, e.g., V.T.C.S. art. 2372p-3, $9(b)(l), (2), (lo), (11). Mr. Miller’s query does not require us to address whether exempted attorneys areprohibited fromengaging inthe conduct setforth inthese bases for license revocation and we refrain from resolving these questions in this opinion.

“We assume Mr. Miller asks about an attorney who seeks to execute a hail bond for a client the attorney represents in acriminal case. For adiscussion ofpossible limitations on the authority of a sheriff to conclude thal an attorney has written bail bonds for defendants the attorney does not represent and to preclude the attorney from doing so, see Price v. Carpenter, 758 F. Supp. 403,406 (N.D. Tex. 1991).

“But see supra note 17

“?SeeExparte S/G&y, 475 S.W.2d 929,930 (Tex. Crim. App. 1972) (reviewing refusal of security for abuse of discretion); Exparte Wliams, 32 S.W.2d 839, 839-40 (Tex. Grim. App. 1930) (same).

“See Expnrte Wliams, 67 S.W.2d 865,867 (Tex. Grim. App. 1934) (officers may not arbitrarily decline to approve hail bonds).

“Under article 17.11, “debts OIother encumbrances” are excluded from asurety’s worth. In an article 17.13 affidavit, a surety attests to his worth “after the payment of all my debts of every description, whether individual OI security debts, and after satisfying all encumbrances upon my property which are known to me.” Case law appears to (continued...)

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We now turn to Mr. Moore’s query. Again, article 2372p-3 isnot applicable in his county. He asks, in essence, whether a sheriff is authorized under the Code of Criminal Procedure articles 17.11, 17.13, and 17.14 to require an attorney orbondsman” to post collateral. More specifically, he states that the sheriff “seeks to have the sureties convey (in trust or otherwise) real estate, certificates of deposit, or other collateral or financial instruments as security to be held by the County, Treasurers, or Sheriff.” He also states that “[tlhe attorney or bondsman would be able to write bonds for some multiple ofthe amount ofthe collateral orsecurity. The sheriffwould establish the formula ormultiple which would determine the maximum liability per bond and forthe total bonds upon which the surety could be liable.” As stated above, we believe that asheriff is authorized to take into account other bail bonds a surety has executed in determining the surety’s worth under article 17.11.24However, we agree with Mr. Moore’s assessment that articles 17.11, 17.13, and 17.14 do not authorize a sheriff to require asurety topost collateral. Article 17.11 provides that asheriff “shall require evidence ofthe sufficiency ofthe security offered.” Article 17.13 authorizes asheriff to require a surety to sign an affidavit “[t]o test the sufficiency of the security offered” and article 17.14 authorizes a sheriff to require “further evidence.” These articles speak in terms of the evidence a sheriff may require in order to be satisfied with the sufficiency ofsecurity. We do not believe that the authority to obtain and evaluate evidence can be expanded to include the authority to require a surety to transfer property. Minton v.Frank, 545 S.W.2d 442, supports this statutory construction. As noted above, in that case two attorneys challenged a sheriffs policy requiring attorneys to make acash deposit or execute a deed of trust in order to execute bail bonds for clients. The Texas Supreme Court concluded that the sheriffs authority to question the sufficiency of the security offered by the attorneys was governed by the Code ofCriminal Procedure rather than article 2372p-3 and affirmed thejudgment of the trial court. Id. at446. The trial court judgment had enjoined the sheriff from requiring theplaintiffs topledge security, including deposits ofmoney, stock certificates, certificates ofdeposit, deeds ordeeds oftrust, but “specifically require[d] compliance by the plaintiffs with the evidence ofsufficiency ofsecurity provisions ofArticle 17.11.” Id. at443. Clearly, neither the trial

condone the consideration of other bonds in determining asurety’s worth. See, e.g., Exparte Williams, 67 S.W.2d at 866 (approving sheriffs refusal to accept bond where sheriff appears to have taken into account other bonds executed by surety); Exparte Williams, 32 S.W.2d at 839-40 (same).

*‘We assume that Mr. Moore asks only about asheriffs authority with respect to individual sureties. Questions about asheriffs authority with respect to corporate sureties in acounty not governed by article 2372p-3 would require us to review additional statwes. See generally fnternational Fidelity Ins. Co. v Sherilf-of Dallas County, 476 S.W.2d 115 (Tex. Civ. App.--Beaumont 1972, writ refd n.r.e.) (sheriff lacks authority under Code of Criminal Procedure articles 17.11, 17.13, and 17.14 to question the solvency ofacorporate surety authorized to do business in this state by the former State Board of Insurance).

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court nor the Texas Supreme Court construed article 17.11 to authorize asheriff to require a surety to post collateral. SUMMARY

Attorneys may execute bail bonds for persons they actually represent in criminal cases without being licensed under article 2372p-3. See V.T.C.S. art. 2372p-3,s 3(e). A sheriff must refuse to accept an attorney bail bond if the sheriff concludes that the attorney has “engag[ed] in the practices made the basis for revocation of [a] license” under article 2372p-3. See id. A sheriffs authority with respect to the sufficiency ofthe security offered by an attorney exempt from licensure under article 2372p-3 is governed by the CodeofCriminalProcedure,articles17.11, 17.13,and17.14. Article17.11 provides that “one surety shall be sufficient, ifitbemade to appear that such surety isworth atleast double the amount ofthe sum forwhich he isbound.” Articles 17.11, 17.13, and 17.14 grant asheriffbroad discretion to determine whether the security offered by an individual surety is sufficient, including the discretion to consider other bonds executed by the surety, but do not authorize a sheriff to require a surety to post collateral.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General

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