.THE A~OHXEY GENERAL OF %%CXAS
AUUTIN .I. TEXAW '(YILIA WILBON ATTORNW GssI!xsAx. WY 29, 1958
Hon. Zollie Steakley opinion No. w-438 Secretaryof State CapitolStation Re: The authorityof the Secretary Austin,Texas of State to approvea charter for corporationshaving as their purposethe issuance Dear Mr. Steakley: of bail bonds.
In your letter you requestan opinionof this office "concera- ing the authorityof this officeto accept,file and approvethe pro- posed charters"which have purposeclausesthat would authorizecorpo- rationsto carry on the businessof all types of criminalbail bonds.
At the time the Legislatureenactedthe Texas BusinessCor- porationAct in 1955, corporationsengagingin the businessof surety on bail bonds had long been requiredto obtain certificatesof authority from the Board of InsuranceCommissioners.These corporationsreceived their certificatesof authorityunder Article 8.01 of the Insurance Code as casualtycompanies,or under prior Chapter7 of the Insurance Code as fidelity,guaranty,and suretycompanies. These corporations were furtherregulatedby the Board of InsuranceCommissioners by Arti- cle 5.13, concerningregulationof rates, and Article21.10, concern- ing the requirementof an affidavitof non-violationof the agency pro- visions. Casualtyinsurancecomuanieshad long been authorizedto act as surety for the-executionof bail bonds. CfT Ex Parte Osborne,127 Tex. Grim. 453, 77 S.W.2d 537.
Article271-a, Vernon'sCode of CriminalProcedure,provides that: n. . . any bail bond or recognizance. . . may be given or executedby such principaland any corporation authorizedby law to act as surety . . ."
The only corporationsthat had been authorizedby law to act as surety were under the supervisionof the Board of lnsurance Commissionersor Banking Commissioner.Article 271-a was enacted in 1929 as an apparent codificationof EX Parte Cook, 62 Tex. Grim. 22, 136 S.W. 67 (1911).
In 1955, the Legislatureauthorizedthe Secretaryof State to approve charterswhich containedpurpose clausesof the widest va- riety with certainenumeratedexceptions. Article 2.01-B(4)of the Hon. Zollia Steakley,page 2 (Hl-438)
Texas Burine.ssCorporationAct enumeratesas one of the exclurlonr, "(d) insurancecompaniesof everytype and characterthat operateun- der the insurancelaws or this state . . ." At the time or the enact- lDentof this cxclurlonthe only corporationsauthoriscdto act as sure- which were regulated ua&r ties on ball bonds vere those corporations the insuranceor banking laws, such as Chapter7A, Chapter8, or Chap- ter 7B of the InsuranceCode, _
Thun, your questionnarrowsto whether or not subsequentleg- irlatlonin 1957 bar.amnded the intentionand languageof the Texas Buolneoo CorporationAct an it wao enactedin 1955.
In your opinionrequestyou noted that Article271-c of the Code of CriminalProcedure,which was enactedas H. B. 11, 55th Leg., (R.S. lgfl), Ch. 420, p. 1259,and amendedin the First Called Session ao 8. B. 25, Ch. 24, p. 51, referredto corporationsas well as persona in the bail bond burinerr. Not only is the 4ct by its terme regulatory rather than grantingadditionalpowersto the Secretaryof State,but recentlythe Supreme Court of Texas in Smith v. Decker,go. A-6663, decided on April 30, 1958, that the entire statute is unconstitutional. The only corporations"authorized by lav to act as surety"in accord- ance with Article 271-a, C.C.P., were regulatedunder Chapter7 and Chapter 8 of the InsuranceCode. The repeal of Chapter7 of the Insur- ance Code, S. B. 165, 55th Leg., (R.S. 1957), Ch. 388, p. 1162, had the effect of limiting the doing of