### ATTORNEY GENERAL OFTEXAS
GREG ABBOTT

December 13,2005

The Honorable Tim Curry Tan-ant County Criminal District Attorney Justice Center 401 West Belknap Fort Worth, Texas 76196-0201 Opinion No. GA-038 1

Re: Pretrial release practices in a county subject to chapter 1704 of the Occupations Code, which governs bail bond sureties (RQ-0352-GA)

Dear Mr. Curry:

You ask several questions about pretrial release practices in acounty subject to chapter 1704 of the Occupations Code, which governs bail bond sureties.’
Under the Texas Code ofCriminal Procedure, aperson accused of acrime may be permitted to make bail, which is security that the person will appear before the proper court and answer the accusation. See TEX.CODECRIM. PROC. ANN. art. 17.01 (Vernon 2005). Bail under the Code of Criminal Procedure includes bail bonds and personal bonds. See id. A bail bond is a written undertaking by a defendant and the defendant’s sureties, if any, guaranteeing the defendant’s appearance and answer. See id. arts. 17.02, 17.08. A defendant executing a bail bond may post money in the amount ofthe bond in lieu ofobtaining asurety as asignatory on the bond. See id.art. 17.02. Alternatively, at the court’s discretion, a person may post apersonal bond that meets the requirements of abail bond under article 17.08 except for the requirement of a surety. See id. arts. 17.03(a), 17.04.

To facilitate personal bonds, a county or multicounty judicial district “may establish a personal bond office to gather and review information about an accused that may have abearing on whether he will comply with the conditions of apersonal bond and report its findings to the court before which the case is pending.” Id. art. 17.42, 5 1. A court releasing a defendant on such a personal bond office’s recommendation may assess apersonal bond fee, which may be used only to defray the personal bond office’s expenses. Id. art. 17.42, 54(a)-(b).
Several ofyour questions concern the applicability ofchapter 1704 ofthe Occupations Code to personal bonds and bail bonds secured by money in lieu of a surety. Chapter 1704 regulates bail

‘SeeLetter from Honorable Tim Curry, Tarrant County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (June 10,2005) (on file with Opinion Committee, also available nt http:/lwww.oag.state.tx.us) [hereinafter Request Letter].The Honorable Tim Curry - Page 2 (GA-038 1)

bond sureties in counties with apopulation of 110,000 or more, such as Tat-rant County, or smaller counties that have created abail bond board. See TEX.Oct. CODE ANN. $0 1704.001-.002 (Vernon 2004).* A bail bond surety is “a person who

. . , executes a bail bond as a surety or cosurety for another person; or
. . .for compensation deposits cash to ensure the appearance in court of aperson accused of acrime.” Id. 0 1704,001(2)(A)-(B). Chapter 1704 prohibits such sureties from soliciting business in apolice station, ajail, aprison, or other detention facility. See id. 0 1704.304(c). Also, chapter 1704 prohibits persons such asdeputies orjailers from recommending aparticular bail bond surety. See id. 0 1704.304(b). Instead, in chapter 1704 counties, a “list of each licensed bail bond surety and each licensed agent of acorporate surety in acounty must be displayed at each location where prisoners are examined, processed, or confined.” Id. 5 1704.105(b). See generally Tex. Att’y Gen. Op. No. GA-0089 (2003).

Your first two questions concern the legality ofposting signs in county detention facilities about adefendant’s alternatives torelease on abond executed by asurety. See Request Letter, supra note 1,at2-3. You ask first whether acounty may post signs in the county jail informing persons in custody about the availability of personal bonds administered by the personal bond office and providing the office’s telephone number. See id.at2. Second, you ask whether the county may post similar signs informing persons in custody about a defendant’s option to execute abail bond and deposit money in lieu ofobtaining asurety’s signature on the bond. See id. at3. Your main concern isthat chapter 1704 ofthe Occupations Code may prohibit posting such signs. See id.at 2-3. As you note, apersonal bond, abail bond secured with money, and abail bond executed’by a surety are all utilized by persons accused of acrime who seek release from confinement. See id. at4. You state that a sign informing persons in custody about their alternatives to posting abail bond executed by
asurety arguably could be seen asthe sheriffs orjail’s endorsement ofthose alternatives and might
run afoul of Chapter 1704. See id. at l-2.

As previously discussed, however, chapter 1704 isprimarily aregulatory scheme for certain bail bond sureties. No sureties arerequired for adefendant to execute abail bond secured by money or apersonal bond. Moreover, the personal bond office does not execute bonds or otherwise act as a surety. Accordingly, chapter 1704’s prohibitions against surety solicitation or recommendation would not prevent acounty from posting signs in the county jail informing persons in custody about personal bonds and the personal bond office or about bail bonds secured with money in lieu of a surety. See TEX. OCC.CODE ANN. 4 1704.304(b) (Vernon 2004) (prohibiting recommending a particular surety).

You further ask whether such signs would constitute the unauthorized practice of law because they would inform individuals about legal options for pretrial release. The Government Code provides adefinition of the practice of law: (a) In this chapter the “practice of law” means the preparation of apleading or other document incident to an action or

2See BUREAUOFTHECENSUS,U.S. DEP’T OFCOMMERCE,2000 Census of Population: Texas QuickFacts (population of Tarrant County is 1,446,2 I9), available at http:llquickfacts.census.gov/qfdlstatesi48l48439.html).The Honorable Tim Curry - Page 3 (GA-038 1)

special proceeding orthe management ofthe action orproceeding on behalf of aclient before ajudge in court aswell as aservice rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. (b) The definition in this section is not exclusive and does not deprive thejudicial branch ofthe power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
(c) Inthis chapter, the “practice oflaw” does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means ofan Internet web site, ofwritten materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use ofthe products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

TEX.GOV’TCODE

ANN. 0 81.101(a)-(c) (Vernon 2005). Because the definition in subsection (a) is not exclusive, courts may decide case by case what constitutes the practice oflaw. See Crain v. The Unauthorized Practice ofLaw Comm., 11 S.W.3d 328, 333 (Tex. App.-Houston [lst Dist.] 1999, pet. denied). Under the definition in section 81.101(a), the most pertinent question would be whether the information onthe signs constitutes the rendition oflegal advice. Generally, the practice of law includes “all advice to clients and all action taken for them in matters connected with the law.” See Crain, 11 S.W.3d at 333.

We assume you envision signs that merely provide general information about personal bonds
or bail bonds secured by amoney deposit without suggesting whether they are appropriate in any particular circumstance. While the statutes and case law do not provide a definitive answer, we believe acourt would conclude that asign that generally describes the statutory provisions forrelease options and the functions of apersonal bond office, without suggesting the suitability of any option toparticular circumstances, does not provide legal advice and isnot the unauthorized practice oflaw. Cf: TEX.DISCIPLINARY R. PROF’L

CONDUCT

7.07(e)(l)(xi), (xiii), reprinted in TEX.GOV’TCODE ANN., tit. 2, subtit. G app. A (Vernon 2005) (exemption from advertising rules for publically available information such asnews articles and law articles and for public service announcements). Additionally, a sign containing legal information may be considered “written materials” under Government Code section 81.101(c). The section provides a limited exception for “written materials” that state the information isnot intended to substitute for the advice of an attorney. TEX. GOV’T CODEANN. 4 81.101(c) (Vernon 2005). Consequently, in an abundance of caution, theThe Honorable Tim Curry - Page 4 (GA-0381)

county may wish to include adisclaimer on any signs concerning personal bonds or bail bonds that it decides to post.

Your third question iswhether, in light of opinion GA-0089, acounty may post a sign in its jail that informs persons in custody ofthe right to make bail utilizing asurety bond and provides the telephone number of a surety bond referral service. See Request Letter, supra note 1, at 3; see generally Tex. Att’y Gen. Op. No. GA-0089 (2003). Inthat opinion we concluded that Occupations Code section 1704.304, which prohibits certain persons including the sheriff, a deputy, or ajailer from recommending aparticular bail bond surety, does not allow such persons torecommend ashort list of sureties. See id. at 3-4; see also TEX.Oct. CODEANN. 9 1704.304(b) (Vernon 2004). Because you do not describe the bail bond referral service in any detail, we cannot give you a definitive answer. However, following the reasoning in GA-0089, section 1704.304(b) would prohibit posting the telephone number of areferral service if it is essentially ameans for a sheriff, deputy, jailer, or other person to recommend a surety or group of sureties. Presumably the referral service’s telephone number would be posted inthe countyjail with atleast the sheriffs tacit consent. See de la Garza v. State, 579 S.W.2d 220, 222-23 (Tex. Crim. App. 1979) (discussing sheriffs authority concerning county jail operations). Depending on the facts, posting a referral service telephone number in acounty jail may raise aquestion whether the sheriff is illegally recommending
a surety or sureties.
Moreover, such asign isinconsistent with section 1704.105(b), which provides that “[a] list of each licensed bail bond surety and each licensed agent of a corporate surety in a county must be displayed ateach location where prisoners are examined, processed, or confined.” TEX.OCC.CODE ANN.6 1704.105(b) (Vernon 2004). Under the statute’s plain language, posting asign with areferral telephone number does not satisfy the requirement to post a “list of each licensed bail bond surety

. . .in acounty.” Id. 3 1704.105(b). Thus, even assuming a sign posting the telephone number of
abail bond referral service is not an illegal referral, the county must still display acomplete surety list as required under section 1704.105(b).

Your fourth question iswhether criminal judges’ authority under article 26.04 ofthe Texas Code of Criminal Procedure to promulgate rules for appointment of defense counsel for indigents authorizes them to order acity to post the signs discussed above in the cityjail. See Request Letter, supra note 1, at 4. Article 26.04 provides in pertinent part that “[the] judges of the county courts, statutory county courts, and district courts trying criminal cases in each county, by local rule, shall adopt and publish written countywide procedures for timely and fairly appointing counsel for an indigent defendant.” TEX.CODE GRIM. PROC. ANN.art. 26.04(a) (Vernon Supp. 2004-05). You note that there is “a real world relationship between pretrial freedom and the ability to afford counsel.” Request Letter, supra note 1,at 4. However, the right to make bail and the right to an attorney are distinct rights. See TEX. CONST.art. I, $ 10 (concerning the right to counsel); see id. art. I, 8 11 (concerning the right to bail). Article 26.04 suggests that indigent defense and bail are separate matters when it states that “[tlhe procedures and standards [for appointing indigent defense] shall apply to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail.” TEX.CODE CRIM. PROC. ANN.art. 26.04(l) (Vernon Supp.2004-05). As
amatter of statutory construction, article 26.04 does not expressly or implicitly authorize criminal judges to order cityjails to post information about bail bond and personal bond alternatives.The Honorable Tim Curry - Page 5 (GA-038 1)

Finally, you ask whether employees or agents of a personal bond office may interview persons in custody “in acity holding facility before the [persons] are processed and booked” for the “sole purpose of gathering the kind of information used to determine whether the [persons] would be suitable candidates for release on personal bond.” Request Letter, supra note 1,at 4. You state that the “interviews would be strictly voluntary, and undertaken with the consent and cooperation of city officials.” Id. We assume this question is prompted by your concern that apersonal bond office may be subject to the Occupations Code’s prohibition of bail bond surety solicitation of business in police stations, jails, prisons, or other detention facilities. See TEX.OCC.CODE ANN. $ 1704.304(c) (Vernon 2004). Because the personal bond office does not function as a surety, section 1704.304(c) does not apply to it. Although legal issues may arise in specific circumstances,
we are not aware of any general statutory provisions or common-law principles that would prohibit such interviews.The Honorable Tim Curry - Page 6 (GA-038 

### 1)

SUMMARY Chapter 1704 ofthe Occupations Code concerning certain bail bond sureties does not prohibit acounty from posting signs in county detention facilities informing defendants about statutory provisions for executing abail bond secured by money or apersonal bond and further providing the telephone number of the personal bond office. A county may only post the telephone number of abail bond referral service in county detention facilities if it can do so in amanner that does not constitute a prohibited referral under Occupations Code section 1704.304(b); such a sign would not satisfy the requirement to post a list of bail bond sureties in certain locations required by section 1704.105. Article 26.04 of the Code of Criminal Procedure concerning indigent defense does not authorize judges of criminal courts to order cityjails topost signs concerning release on bail bonds and personal bonds. Generally, employees or agents of,a personal bond office may interview prisoners in a city holding facility for information gathering purposes on avoluntary basis. Very truly yours,

BARRY R. MCBEE First Assistant Attorney General

NANCY S. FULLER Chair, Opinion Committee
William A. Hill Assistant Attorney General, Opinion Committee