Fidelity Ins. Co. v. Sheriff of Dallas County 5T5wl1 in 476 S.W. 2d 115 (Tex.

Civ.App., 1972, error ref. .T~inr~a~rv 26. 1973 n.r.e.) 

### HF, A~~XMRNEY GENERALAffirmedbv International

- ---- -_, __, _, _ Hon. Carol S. Vance District Attorney Harris County Courthouse Houston, Texas 77002

Dear Mr. Vance: Opinion No. M- 1060 Re: Ifa limit exists as to the total amount ofbail bonds that a corporate surety may make, then how may the limit be determined? You have requested an opinion from this office on the following question:

“Is there any limit as to the total amount ofbail

bonds that a corporate surety may make? If so, how is such limit to be determined? The authority for a corporation to act as surety on abail bond is found under the provisions ofArticle 17.06 ofthe Code ofCriminal Procedure ofTexas which reads as follows:

“Wherever inthis Chapter, any person is required or authorized to give or execute any bail bond, such bail bond may be given or executed by such principal and any corporation authorized by law to act as surety, subject to all the provisions ofthis Chapter regulating and governing the giving ofbail bonds by personal surety insofar as the same is applicable. ” Article 17.07 ofthe Code ofCriminal Procedure reads as follows: “Any corporation authorized by the law ofthis State to act as a surety, shall before executing any bail bond as authorized in the preceding Article, first file in the office ofthe county clerk

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ofthe county where such bail bond is given, a power ofattorney designating and authorizing

.the named agent, agents or attorney of such corporation to execute such bail bonds and thereafter the execution of such bail bonds by such agent, agents or attorney, shall be a valid and binding obligation ofsuch corporation. ” Article 17.11, Section 1, ofthe Code ofCriminal Procedure, reads as follows :

“Every court, judge, magistrate or other

officer taking abail bond shall require evidence ofthe sufficiency ofthe security offered; but in every case, one surety shall be sufficient, ifit be made to appear that such surety is worth at least double the amount ofthe sum for which he is bound, exclusive ofall property exempted by law from execution, and ofdebts or other encumbrances; and that he is a resident ofthis state, and has property therein liable to execution worth the sum for which he is bound, I1 Article 17.045 ofthe Code ofCriminal Procedure reads as follows: “Abail bond certificate with respect to which a fidelity and surety company has become surety as provided in the Automobile Club Services Act, or for any truck and bus association incorporated in this state, when posted by the person whose signature appears thereon, shall be accepted as bail bond in an amount not to exceed $200 to guarantee the appearance of such person in any court in this state when the person is arrested for violation ofany motor vehicl,e law ofthis state or ordinance ofany municipality in this state, except for the offense ofdriving while intoxicated or for any felony, and the alleged violation was committed prior to the date ofexpiration shown on such bail bond certificate. ”

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Inthe cases ofExParte Cook, 136 S.W. 67 (Tex. Crim. 1911), and ExParte Osborne, 77 S.W.2d 537 (Tex. Crim. 1934) the Court held that bail bonds executed by a surety company which had been authorized to do business under the statutes must be accepted. Article 2.01 ofthe Texas Insurance Code authorizes the formation of acasualty insurance company, including fidelity, guaranty, surety and trust companies. Article 2.02, subdivision 4ofthis Code requires these companies to incorporate with a capital ofnot less than $150,000 and $75,000 surplus. Article 5.13 ofthe Insurance Code places the regulation offidelity, surety and guaranty bonds under the Board of Insurance Commissioners, and, within the board, gives primary supervision and regulation thereof to the Casualty Insurance Commissioner. Article 7.19-1 ofthe Insurance Code authorizes execution ofa surety undertaking by one surety company. Article 8.07 ofthe Insurance Code requires the officers ofa casualty company to file an annual statement showing names ofall officers, capital stock, the amount ofcapital stock paid in, assets, liabilities, income during the year, expenditures during the year, and a full disclosure is to be made by said company tothe State Board of Insurance. Article 8.11 ofthe Insurance Code, authorizes the Insurance Commission to revoke the certificate ofauthority and refer the facts to the Attorney General, who shall proceed to ask the Court to appoint a receiver, for failure ofthe corporation to comply with the law, and then expressly states:

11

. . .Inno other way can the Board or any other person restrain or interfere with the prosecution ofbusiness ofany company doing business under the provisions ofthis chapter, except in actions byjudgment creditor or in proceedings supplementary to execution. ”

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Article 8.20 ofthe Insurance Code reads as follows: “The Board upon due proof by acompany organized under the provisions ofthis law, of its possessing the qualifications required, shall issue acertificate setting forth that it has qualified and is authorized for the ensuing year to do business under the law, which certificate or a copy thereof shall be evidence ofsuch qualifications and of such company’s authority to transact business authorized by this chapter, and ofits solvency and credits. ” Article 21.36 ofthe Insurance Code provides as follows:

“Should any insurance company, except those designated in Article 3.61 ofthis code fail or neglect to pay off and discharge any execution, issued upon avalid final judgment against said company, within thirty (30) days after the notice ofthe issuance thereof, then inthat event the certificate ofauthority of said company to transact business ofinsurance shall be revoked, cancelled and annulled, and said company shall be prohibited from transacting business ofinsurance in this State until said execution be satisfied. ” Wedo not find in the Insurance Code or the Code ofCriminal Procedure any limit as to the total number or amount ofbail bonds that acorporate surety may make. However, we do find in Article 17.09 ofthe Code ofCriminal Procedure that ifthe Judge finds sureties are not acceptable on abail bond,then he can order the accused to be rearrested and anew,bond to be made. Section 2ofArticle 17.11 ofthe Code ofCriminal Procedure provides that ifany person who has signed as surety on abail bond is in default thereon, then he shall be disqualified to sign a surety so long as he is default on said bond. Itfurther provides that the clerk shall notify in writing the sheriff, chief ofpolice, or other peace officers of such default. Also Article 21.36 ofthe Insurance Code, supra, provides for

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Honorable Carol S. Vance, page 5 (M-1060)

the revocation ofa certificate ofauthority to transact insurance business in the event any insurance company fails or neglects to pay offand discharge any final judgment against said insurance company. Inview ofour answer to the first part ofyour question, no answer is necessary to the second portion thereof. SUMMARY The statutes ofthe State ofTexas do not provide for any limit as to the total number or amount ofbail l%x that acorporate surety mav make.

Prepared by John H. Banks Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Sam Jones Rex White Lonny Zwiener BobLattimore SAMMCDANIEL Staff Legal’Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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