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### THE ATTORSEY GENERAL OF TEXAS
December 29, 1986

HonorableLloyd Criss Chairman Committeeon Labor and Employment Relations Texas House of Representatives P. 0. Box 2910 Austin,Texas 78769 OpinionNo. JM-598
Re: Whether a city official may engage in the writing of bail bonds

Dear RepresentativeCriss:
You ask whether a city official who receives remuneration from the city or county may engage in the writing of bail bonds. Specifically,you informus that

[t]he current superintendentin charge of streets in Madisonville, Texas, is also engaged in the writing of bail bonds inMadison County.
We assume that the superintendent is responsible for the construction and maintenance of city streets. Because you ask specificallyabout **the** current superintendent in charge of streets, we will limit our discussion to that particular office. We conclude that, as a matter of law, the superintendent in charge of streets is not prohibitedby virtue of his employmentwith the city from engaging in thewriting of bail bonds. We do not decide whether there is any conflict as a matter of fact, &, whether the superintendentin charge of streets may faithfullyexecute the duties of his office and, at the same time, engage in the writing of bail bonds. Such a determination involves the resolutionof an issue of factwhichwe are not empowered tomake.
You inform us that Madisonville is a general law city; accordingly, it is governedby the general laws. specificallyarticles 961 et seq.,V.T.C.S. See Woolridge v. Folsom, 564 S.W.2d 471 (Tex.Civ. APP. - Dallas 1978, no writ). General law cities are creatures of statuteand have no powers except those expresslyor impliedlygranted by the statutecreating them. City of Uvaldev. Uvalde Electric & Ice Co., 250 S.W. 140 judgmentadopted (Tex.Comm'nApp. 1923);Dibrellv. City of Coleman, 172 S.W. 550 (Tex. Civ. App. - Austin 1915, writ ref'd). Article 977,V.T.C.S.,authorizes the creation of

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such other officersand agentsas the city council may from time to time direct, who may either be appointed or elected as provided by ordinance. . . . We assume. that the position of "superintendentin charge of streets" is such an office. Article 2372p-3, V.T.C.S., provides for the licensing and regulationof bail bondsmen. The act createsa countybail bond board in each county having a population of more than 110,000 according to the last federal census; in counties of less than 110,000, the creationof the board lieswithin the discretion of a majority of the officers of the county who would constitute members of the board. V.T.C.S. art. 2372p-3, 583, 5. The population of Madison County, according to the last federal census, is less than 110,000. We have been informed that the officers of Madison County have not created such a board. Accordingly, the regulation and licensing pursuant to article 2372p-3 of bail bondsmen in Madison County falls without the ambit of the act.
In counties not falling within article 2372p-3, V.T.C.S., the qualifications of bail bondsmen are determined by recourse to other statutoryprovisions. Article 17.06of the Code of Criminal Procedure provides that

[wlhereverin this Chapter,any person is required or authorized to give or execute any bail bond, such bail bond may be given or executed by such principaland any corporationauthorizedby law to act as surety, subject to all the provisions of this Chapter regulating and governing the giving of bail bonds by personal surety insofar as the same is applicable. Article 2.01 of the Business Corporation Act, article 8.01 of the Insurance Code, and the above-quoted section of the Code of Criminal Procedure, taken together,permit two types of surety onbail bonds.

It seems clear to us that the legislature,when it made the comprehensive revision of the bail bond statutes,permitted two types of surety upon bail bonds: individuals and insurance comoanies. No statute of general application vested in aF agency the right to determine the sufficiency of individual sureties and that determination was entrusted to the discretion of the approving official. As to the corporate surety, therewas a statute of general application which vested the

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determination of the sufficiencyof the insurance companies as sureties upon the State Board of Insurance. International Fidelity Insurance Company of Newark, New Jersey V. Sheriff of Dallas County, 476 S.W.2d 115, 119 (Tex. Civ. App. - Beaumont 1972,writ ref'd n.r.e.). We can findno provision in either the Code of Criminal Procedure, the Business CorporationAct, or the Insurance Code which would preclude a city officer from engaging in thewriting of bail bonds in the situationyou describe. We turnnext to the body of law governing public officers in order to determine whether there is in that body of law any legal impediment to an officer engaging in such activity. This officehas in thepast been calledupon frequentlyto decide whether an officer of a political subdivisionmay contract with the political subdivisionofwhich he is an officer. The general rulewas that, absent a specific statutory prohibition, such contracts were invalidwhere there was a conflict of interest. See, e.g., Attorney General Opinion JM-99 (1983); ~~-236, MW-124 (1980); MW-34 (1979); H-624 (1975); H-354 (1974). In Attorney General Opinion JM-99 we discussed the common law prohibitions against conflicts of interest and concluded that

as long as there isno conflictof interest,selfdealing, or potential for dereliction of duties, we believe that as a generalproposition,a county official or employeemay contractwith the county through the commissioners court for services or materials which are furnished by that county employee in his private capacity and which are separate and wholly unrelated to his official countyduties. This general conclusionhas been modified by the enactment of article 988b.V.T.C.S.,which became effectiveJanuary 1, 1984.
In this instance, however, the city official is engaged in business, not with the city, but with private individuals. HIS private business is unrelated to his official duties. We have found no statute, nor have you directed us to one, which imposes restrictions comparableto article 988b on public officers engaged inprivate business with private individuals. But see Penal Code art. 39.01. Accordingly, we conclude that the superintendent in charge of city streets is not precluded as a matter of law from engaging in the writing of bail bonds. We do not address whether there is any conflict as a matter of fact, i.e., whether the superintendent in charge of city streetsmay faithfullyexecute the duties of his office and, at the same time, engage in thewriting of bailbonds.

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SUMMARY The superintendentin charge of streets for the city of Madisonville is not precluded as a matter of law from engaging in thewriting ofbail bonds.

JIM MATTOX AttorneyGeneral of Texas JACK HIGHTOWKR FirstAssistantAttorney General
MARY KELLER ExecutiveAssistantAttorneyGeneral
RICK GILPIN Chairman.OpinionCommittee Preparedby JimMoellinger AssistantAttorney General

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