1’ OFFICE OF THE ATTORNLY GENERAL

. ST.I\TE OF TEXAS

JOHN CORNYN

August 7,2002

The Honorable Danny Buck Davidson Criminal District Attorney 123d Judicial District 110 South Sycamore Carthage, Texas 75633 Opinion No. JC-0541

Re: Whether a sheriff in a county that does not have abail bond board has the authority to post in the county jail a list of preapproved bondsmen (RQ-05 17-JC)

Dear Mr. Davidson:

You ask whether asheriff in acounty that does not have abail bond board has the authority to post in the county jail a list of preapproved bondsmen. We conclude that a sheriff is not authorized to post such a list.

You ask about the authority ofasheriff in acounty that has not established abail bond board under chapter 1704 of the Occupations Code. That chapter creates aboard in each county with a population of 110,000 ormore, and authorizes, but does not require, the establishment of aboard in less populated counties. See TEX.OCC.CODE ANN.$0 1704.002-.052 (Vernon 2002). In acounty with abail bond board, only aperson who holds a license from the board may act as abail bond surety in the county, with the limited exception of an attorney who represents the person in the criminal case for which the bond is given. See id. 88 1704.15 1, .163. The sheriff must accept the bonds of sureties licensed by the bail bond board. See id. 9 1704.201. The bail bond board must post “in each court having criminal jurisdiction inthe county, and shall provide to each local official responsible for the detention of prisoners in the county, a current list of each licensed bail bond surety and agent ofthe bail bond surety inthe county.” Id. 8 1704.1 OS(a). In addition, chapter 1704 permits but does not require the posting of such alist in the county jail. See id. § 1704.105(b) (“A list of each licensed bail bond surety in acounty may be displayed where prisoners are examined, processed, or confined.“).

In a county without abail bond board, the taking of bail bonds is generally governed by chapter 17ofthe Code of Criminal Procedure. See id. 8 1704.002; see also Castaneda v. Gonzalez, 985 S.W.2d 500,503 (Tex. App.-Corpus Christi 1988, no writ) (in county where no bail bond board has been created, chapter 17ofthe Code of Criminal Procedure controls the taking ofbail bonds in that county). As chapter 17governs the taking ofbail bonds in the county atissue, we examine its provisions in some detail.The Honorable Danny Buck Davidson - Page 2 (JC-0541)

Chapter 17 authorizes an officer taking abail bond to “require evidence of the sufficiency ofthe security offered.” TEX.CODE CRIM. PROC. ANN.art. 17.11,§ 1(Vernon 1977). The sufficiency ofthe security offered by asurety is governed by articles 17.11 through 17.14. One surety shall be sufficient if

such surety is worth at least double the amount ofthe sum for which

he is bound, exclusive of all property exempted by law from execution, and of debts or other encumbrances; and that he is a resident of this state, and has property therein liable to execution worth the sum for which he isbound.

Id. The officer taking the bail bond may require an affidavit attesting to the surety’s worth. Id. art. 17.13. Article 17.14 provides that the officer may require further evidence “ifthe

.. .officer taking the bail bond is not fully satisfied as to the sufficiency ofthe security offered

. . . .” Id. art. 17.14. Under article 17.11, a person who has signed as a surety on a bail bond and is in default is disqualified to sign as asurety “so long ashe is in default on said bond.” Id. art. 17.11,§ 2 (Vernon supp. 2002). Chapter 17 generally governs the taking ofbail bonds on abond-by-bond basis. A person acting as surety must be aTexas resident and offer sufficient security. See id. art. 17.11, § 1(Vernon 1977). A person is disqualified to act as surety on abond ifin default on aprior bond. See id. art. 17.11,§ 2 (Vernon Supp. 2002). With these exceptions, chapter 17does not set forth qualifications for sureties. While articles 17.11 through 17.14 give anofficer taking abail bond broad discretion to determine whether the security offered by asurety issufficient, see Tex. Att’y Gen. Op. No. DM-483 (1998) at 6(Code ofCriminal Procedure articles 17.11,17.13 and 17.14 authorize sheriff taking bail bond to consider other bonds executed by surety), “chapter 17 does not require aperson to obtain
alicense to be eligible to act as a surety nor does it authorize an officer taking abond to require a surety to be licensed,” Tex. Att’y Gen. LO-98-105, at2-3. Furthermore, the authority to assess the sufficiency of the security offered is vested in “[elvery court, judge, magistrate or other officer taking abail bond,” TEX.CODE GRIM. PROC. ANN.art. 17.11, 0 1(Vernon 1977); see also id. arts. 17.20-.22 (provisions governing when apeace officer may set and take bail); chapter 17 does not vest any special authority in the sheriff.

And importantly, the authority of an officer taking abond under chapter 17of the Code of Criminal Procedure is even more limited with respect to some corporate sureties. An officer taking
abond lacks authority under articles 17.11 and 17.13 to question the solvency of acorporate surety authorized to do business in Texas by the Department ofInsurance. SeeInt ‘I Fid. Ins. Co. v.Sherzjjf ofDallas County, 476 S.W.2d 115 (Tex. Civ. App.-Beaumont 1972, writ ref’d n.r.e.); see also Tex. Att’y Gen. Op. No. M-l 060 (1972) (article 17.11, section 1does not limit total number or amount ofbail bonds corporate surety may make).

Both ajudicial opinion and an opinion of this office have expressly concluded that these Code ofCriminal Procedure provisions do not authorize asheriff to adopt rules imposing alicensingThe Honorable Danny Buck Davidson - Page 3 (JC-0541)

system forbail bond sureties akin to that set forth under chapter 1704 ofthe Occupations Code. See Castaneda v. Gonzalez, 985 S.W.2d 500 (Tex. App.-Corpus Christi 1998, no writ); Tex. Att’y Gen. LO-98-l 05. In Castaneda, the court noted that “[i]n counties where abail bond board exists, the board may only adopt such rules asare authorized by and areconsistent with statutory authority, and may not adopt rules which impose additional burdens, conditions, or restrictions in excess of or inconsistent with statutory provisions.” Castaneda, 985 S.W.2d at504 (citing Tex.Fire & Cas. Co.
v.Harris County Bail Bond Bd., 684 S.W.2d 177,178 (Tex. App.-Houston [14th Dist.] 1984, writ refd n.r.e); Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App.-San Antonio 1980, no writ)). An officer taking bail bonds under chapter 17 of the Code of Criminal Procedure “isprohibited from adopting rules which exceed statutory authority in the same way bail bond boards” governed by chapter 1704 of the Occupations Code are limited to adopting rules authorized by and consistent with chapter 1704. Castaneda, 985 S.W.2d at 504.

The court in Castaneda concluded that the sheriffs authority to require evidence of the sufficiency ofthe security offered bybondsmen under articles 17.11 and 17.14 authorized the sheriff to require bondsmen to fill out an application form. See id. at 503. However, the sheriff lacked authority to impose substantive requirements not authorized by articles 17.11 and 17.14:

The rules requiring bondsmen to accept suspension oftheir authority to write bonds when in litigation concerning forfeitures and agree to indemnify the Sheriff for expenses and attorney fees in any litigation with him are unrelated to the sufficiency ofthe security offered, and, therefore, the Sheriff has no authority to impose these requirements under articles 17.11 and 17.14. Similarly, there isno authority for the Sheriff to require the pledging of certain collateral. Under article 17.14, ifthe Sheriff isnot satisfied with the sufficiency ofthe security offered, further evidence shall be required. To require bondsmen to actually pledge collateral, asthe Sheriff seeks to do inthis case, goes beyond the statutory authority to require further evidence, and is therefore impermissible.

Id. (citation omitted).

You ask whether a sheriff is authorized by chapter 17 to post in the county jail a list of preapproved bondsmen. You explain that bondsmen inyour county submit “an application forproof ofsufficiency of security” tothe county sheriff.’ The list ofpreapproved bondsmen “isderived from the application process.” Request Letter, supra note 1,at2. The sheriff supplies inmates with this list and local telephone books: “Inmates are not limited to the list and may contact any person, attorney, firm, company, surety, or bondsman they wish.” Id. at 1.

‘Letter from Honorable Danny Buck Davidson, Crirninal District Attorney, 123d Judicial District, toHonorable John Comyn, Texas Attorney General, at 1(received Feb. 27, 2002) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable Danny Buck Davidson - Page 4 (JC-0541)

We conclude that the posting of such alist exceeds the authority of a sheriff under chapter 17. Clearly, chapter 17 authorizes an officer taking abond to require proof of the sufficiency of security offered by the bondsmen, proof that the officer could require in the form of an application. See Castaneda, 985 S.W.2d at 503 (“The rule requiring bondsmen to fill out an application form is permissible under the Sheriffs authority torequire evidence ofthe sufficiency ofthe security offered by bondsmen.“). Arguably, chapter 17 might authorize a sheriff to preapprove bondsmen on a voluntary basis, provided that the officer taking a bond from a preapproved bondsman verifies that the bondsman’s security is still sufficient, see, e.g., TEX.CODE CRIM. PROC. ANN. art. 17.11, 89 l- 2 (Vernon 1977 & Supp. 2002) (“any person who has signed as asurety on abail bond and is in default thereon shall thereafter be disqualified to sign asasurety so long ashe isin default on said bond”), and provided that those who have not been preapproved are not precluded from executing bonds.

But no provision in chapter 17expressly authorizes asheriff toprovide alist ofpreapproved bondsmen to inmates, and we do not believe that this authority may be implied. Chapter 17provides authority for the taking ofbonds in individual cases; it does not address the sheriffs provision of information to inmates. Furthermore, as we have noted, a sheriff is not authorized to question the sufficiency ofa state-regulated corporate surety’s security. SeeInt ‘I Fid. Ins. Co., 476 S.W.2d at 120 (sheriff “does not have any discretion in the determination ofthe sufficiency ofthe surety when the surety upon the bond tendered for approval is an insurance company authorized to-do fidelity and surety business in Texas”). A list ofbondsmen whose security has been preapproved by the sheriff under chapter 17would omit corporate sureties that might also be eligible to execute bonds in the county. By contrast, the list oflicensed bail bond sureties that chapter 1704 ofthe Occupations Code permits to be displayed “where prisoners are examined, processed, or confined,’ includes every surety eligible to execute bail bonds in the county. See TEX.OCC.CODE ANN.$5 1704.105(b) (bail bond surety list), .152 (licensing requirements for both individuals and corporations qualified to write fidelity, guaranty, and surety bonds under the Insurance Code).

In sum, chapter 17ofthe Code of Criminal Procedure does not provide astatutory basis for
asheriff toprovide alist ofpreapproved bondsmen to inmates. A sheriff has only those powers that
are provided by the legislature. See TEX.CONST. art. V, 8 23 (sheriffs “duties, qualifications, perquisites, and fees of office[] shall be prescribed by the Legislature”). We have not located any other statute that expressly orimpliedly provides such authority. The sheriffs position asthe keeper of the county jail authorizes the sheriff to provide individuals who are arrested in the county and detained in the county jail with information that will enable them to contact potential bondsmen, to facilitate their release on bail. See TEX.LOC.GOV’TCODE ANN.0351.041 (Vernon 1999) (sheriff is the keeper of the county jail); see also TEX.CONST. art. 1, 8 11 (right to bail). The sheriff may provide detainees with telephone books and may compile and provide detainees with a comprehensive list of all persons who wish to execute bail bonds in the county. But the authority toprovide information does not authorize asheriff toprovide information that distinguishes between preapproved and other potential sureties. Accordingly, we conclude that a sheriff is not authorized to post in the county jail alist ofpreapproved bondsmen.The Honorable Danny Buck Davidson - Page 5 (JC-0541)

SUMMARY

A sheriff in acounty that does not have abail bond board is not authorized to post in the county jail a list of preapproved bondsmen.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY Chair, Opinion Committee
Mary R. Crouter Assistant Attorney General, Opinion Committee