COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-102-CV
ALLEGHENY CASUALTY AGENT, APPELLANT
JIM ALEXANDER D/B/A
AAA BAIL BONDS
V.
DAVID WALKER, APPELLEE
WISE COUNTY SHERIFF
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two issues, Appellant Allegheny Casualty Agent, Jim Alexander d/b/a
AAA Bail Bonds (“Allegheny”) asserts that the trial court erred by granting
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See Tex. R. App. P. 47.4.
Appellee Wise County Sheriff David Walker’s motion for summary judgment and
denying Allegheny’s motion for summary judgment. We affirm.
II. Factual and Procedural History
Two lists hang beside each other in the lobby of the Wise County jail in
Decatur, Texas. One is a list of licensed bondsmen for Wise County. 2 The
other, entitled “Wise County Criminal Defense Attorneys,” is a list that contains
the names and phone numbers of criminal defense attorneys “who regularly
practice in Wise County,” according to the Wise County jail administrator. See
Exhibit 2 to this opinion. This latter list, which has been posted for at least ten
years, is the subject matter of this appeal.
In June 2008, Allegheny filed suit against Walker, seeking a declaratory
judgment that posting this list of attorneys, which he alleges includes only
those Wise County attorneys whom the sheriff has approved to write bonds,
violates state law. Walker responded with a general denial and various
affirmative defenses.
In September 2008, Allegheny filed a motion for summary judgment,
arguing that the list violated section 1704.304(b) of the Texas Occupations
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See Tex. Occ. Code Ann. § 1704.105(b) (Vernon 2004) (stating that
a list of each licensed bail bond surety and each licensed agent of a corporate
surety in a county must be displayed at each location where prisoners are
examined, processed, or confined).
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Code. Allegheny attached two exhibits to his motion. The first exhibit is a
two-page document listing twenty-three attorneys, entitled “Wise County
Criminal Defense Attorneys,” with “Last Bond Date” and a date beside twelve
of the names and “None” beside the rest of the names. See Exhibit 1 to this
opinion. The other exhibit is an affidavit from Allegheny’s attorney, averring
that the first exhibit “is a true and correct copy of the document [he] received
from the Sheriff’s office in this case,” and setting out his testimony on
attorney’s fees.
In his response, Walker argued that the list of criminal defense attorneys
posted in the jail was an informational posting that did not recommend, refer,
or endorse any particular lawyer, surety, or group of sureties. He attached
photos of the list in the lobby as one exhibit. See Exhibit 2 to this opinion. He
also attached the affidavit of the Wise County jail administrator, which states
that the photos of the list attached to the affidavit “accurately depict the
information in the lobby of the Wise County Jail,” and refers to the list as “an
informational posting entitled ‘Wise County Criminal Defense Attorneys.’” He
also attached two attorney general opinions interpreting section
1704.304(a)–(b).
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In November 2008, Walker filed a cross motion for summary judgment,
requesting a declaratory judgment from the trial court that the list is not a
prohibited referral of a bail bond surety under section 1704.304(b).
In January 2009, Walker filed objections to, and a motion to strike, the
document attached to Allegheny’s motion, arguing, inter alia, that it was not
a copy of the list posted in the jail. On January 21, 2009, after considering the
parties’ pleadings, evidence, and arguments, the trial court denied Allegheny’s
motion for summary judgment, sustained Walker’s objections and motion to
strike, granted Walker’s cross motion for summary judgment, and denied both
parties’ requests for attorneys’ fees. This appeal followed.
III. Standard of Review
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004); see Tex. R. Civ. P. 166a(b), (c). A plaintiff is entitled to summary
judgment on a cause of action if it conclusively proves all essential elements of
the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d
59, 60 (Tex. 1986). When both parties move for summary judgment and the
trial court grants one motion and denies the other, the reviewing court should
review both parties’ summary judgment evidence and determine all questions
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presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005). The reviewing court should render the judgment that the trial court
should have rendered. Id.
When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. IHS Cedars Treatment Ctr., 143
S.W.3d at 798.
IV. Analysis
A. Chapter 1704 of the Texas Occupations Code
A “bail bond surety” is “a person who (A) executes a bail bond as a
surety or cosurety for another person; or (B) for compensation deposits cash to
ensure the appearance in court of a person accused of a crime.” Tex. Occ.
Code Ann. § 1704.001(2) (Vernon Supp. 2009). Section 1704.304, entitled
“Prohibited Recommendations or Solicitations; Offense,” states in pertinent
part:
(a) A bail bond surety . . . may not recommend or suggest to a
person for whom the bail bond surety executes a bond the
employment of an attorney or law firm in connection with a
criminal offense.
(b) The following persons may not recommend a particular bail
bond surety to another person:
(1) a police officer, sheriff, or deputy;
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(2) a constable, jailer, or employee of a law enforcement
agency;
(3) a judge or employee of a court;
(4) another public official; or
(5) an employee of a related agency.
(c) A bail bond surety . . . may not solicit bonding business in a
police station, jail, prison, detention facility, or other place of
detainment for persons in the custody of law enforcement.
Id. § 1704.304(a)–(c) (Vernon 2004).
Under chapter 1704, a person may not act as a bail bond surety unless
he or she holds a license or meets the attorney exemption set out in section
1704.163. Id. § 1704.151 (Vernon 2004). Section 1704.163 states in
pertinent part:
(a) Except as provided by this section, a person not licensed under
this chapter may execute a bail bond or act as a surety for another
person in any county in this state if the person:
(1) is licensed to practice law in this state; and
(2) at the time the bond is executed or the person acts as a
surety, files a notice of appearance as counsel of record in
the criminal case for which the bond was executed or surety
provided or submits proof that the person has previously filed
with the court in which the criminal case is pending the
notice of appearance as counsel of record.
Id. § 1704.163(a)(1)–(2) (Vernon Supp. 2009).
In sum, then, under chapter 1704, bail bond sureties may not recommend
lawyers, officials may not recommend bail bond sureties, and bail bond sureties
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may not solicit business where their clients are held—instead, a list of all the
bail bond sureties in the county must be posted. See id. §§ 1704.105(b),
.151, .304. But while bail bond sureties may not recommend lawyers, if a
lawyer has appeared as the attorney of record for a person in a criminal case,
he or she can act as that person’s bail bond surety. See id. § 1704.163.
The dispositive issue here is whether the controversial list posted next to
the one required by section 1704.105(b) constitutes a recommendation of
particular sureties in violation of section 1704.304(b).
B. Attorney General Opinions
Although the opinions of the Texas Attorney General are not controlling
authority, they may be cited as persuasive authority. See, e.g., HEB Ministries,
Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 661 n.148 (Tex.
2007); Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 82 (Tex.
1997). Because there is no controlling authority interpreting subsection (b) of
section 1704.304, we turn for guidance to the two attorney general opinions
to which the parties refer us.
Opinion GA-0089 interprets subsections (a) and (b) of section 1704.304
in light of the following question: whether these statutes prohibit only a single
recommendation, while allowing a list containing multiple attorneys or
bondsmen to be distributed, or do they prohibit any recommendations, no
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matter how numerous, of attorneys or bondsmen? 3 Op. Tex. Att’y Gen. No.
GA-0089 (2003). The opinion construes subsection (b) to prohibit “a covered
person” under the statute from recommending any specific bail bond sureties.
Id. And it construes subsection (a) to prohibit a bail bond surety from
recommending an attorney to his client either individually or as part of a
selected list. Id. The opinion defines “recommend” as “to commend or bring
forward explicitly as meriting consideration, acceptance or adoption, to make
a commendatory statement concerning.” Id. This opinion, however, is not
germane to the determination of whether the controversial list here constitutes
a surety recommendation—that is, it does not address whether a “covered
person” can post a list of criminal defense attorneys when the information
about being a surety is not included in the list. See id.
Opinion GA-0381 addresses several questions, including
whether a county 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 . . . , whether the county may post similar signs
informing persons in custody about a defendant’s options to
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Although the question blends subsections (a) and (b), the opinion
addresses each subsection separately, and the statutory language itself makes
clear that under subsection (a), the limitation on recommending attorneys refers
to sureties, and under subsection (b), the limitation on recommending sureties
refers to the listed public officials. See Tex. Occ. Code Ann.
§ 1704.304(a)–(b).
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execute a bail bond and deposit money in lieu of obtaining a
surety’s signature on the bond. . . . [and w]hether, in light of
opinion GA-0089, a county may post a sign in its jail that informs
persons in custody of the right to make bail utilizing a surety bond
and provides the telephone number of a surety bond referral
service.
Op. Tex. Att’y Gen. No. GA-0381 (2005).
The opinion indicates that the county can post signs about statutory
provisions for executing a bail bond secured by money or a personal bond and
the phone number of the personal bond office, but it states that the county
cannot post the phone number of a bail bond referral service unless it could do
so in a manner that would not constitute a prohibited referral under section
1704.304(b). Id. Specifically, the attorney general opines that section
1704.304(b) would prohibit the posting of the bail bond referral service phone
number if “it is essentially a means for a sheriff, deputy, jailer, or other person
to recommend a surety or group of sureties . . . [; d]epending on the facts,
posting a referral service telephone number in a county jail may raise a question
whether the sheriff is illegally recommending a surety or sureties.” Id. Further,
the posting could be inconsistent with section 1704.105(b)’s required posting
of a “list of each licensed bail bonds surety . . . in a county” because it
theoretically might not be a complete list but rather a list of only those
subscribing to the referral service. See id.; Tex. Occ. Code Ann.
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§ 1704.105(b). We conclude that this opinion, like opinion GA-0089, is also
not a directive to this court as to whether the controversial list is a
recommendation of particular sureties because it fails to address the particular
facts before us here.
C. Allegheny’s Reasoning
Allegheny posits several theories as to why the list in question violates
section 1704.304(b). First, he asserts that “under the plain meaning of the
statute, the posting of any list other than the one mandated by statute would
violate this section of the Texas Occupations Code.” This is incorrect. The
statute prohibits the sheriff from recommending “a particular bail bonds surety
to another person.” See Tex. Occ. Code Ann. § 1704.304(b) (emphasis
added); see also Op. Tex. Att’y Gen. No. GA-0089 (“[S]ection 1704.304(b)
prohibits a covered person from recommending any specific bail bond
sureties.”). However, the attached list contains the names and phone numbers
of attorneys, under the heading “Wise County Criminal Defense Attorneys.” It
does not identify them as bail bond sureties, and it most certainly does not
appear in any way to recommend them to anyone as such. See Exhibit 2 to
this opinion. Nor does it single out any one lawyer or group of lawyers over
another or over the listed bail bond sureties.
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Allegheny next seems to argue that attorney general opinion GA-0089
supports his position regarding the posted list, complaining, “The Attorney
General stated that this statute prohibited the affected persons from making
any recommendations of attorneys, law firms or bail bond sureties.” However,
as previously recounted above, the opinion does not support his argument, nor
does the statute’s plain language. See Op. Tex. Att’y Gen. No. GA-0089; see
also Tex. Occ. Code Ann. § 1704.304(a)–(b) (stating that a bail bond surety
may not recommend an attorney and that an official may not recommend a
particular bail bond surety).
Allegheny also argues that “the posting of a second list of individuals who
the Sheriff represents may write bail bonds in Wise County is improper because
the Sheriff is representing to the public that these individuals may write bonds
for anyone and not just individuals whom the attorney already represents.” He
claims that this results in putting licensed bondsmen “on equal footing in the
jail with individuals who are [sic] even eligible to write bonds for the public at
large.” Again, however, we observe that the mere posting of a list of criminal
defense attorneys next to the required list of licensed bail bond sureties,
without more, does not represent that the defense attorneys may also write bail
bonds.
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Therefore, we hold that the list in question does not “recommend a
particular bail bond surety to another person” and that the granting of Walker’s
motion for summary judgment, and the denial of Allegheny’s, was proper. We
overrule Allegheny’s two issues.
D. Allegheny’s Other Issues
In a section entitled, “Other Issues,” Allegheny also complains that the
trial court should not have stricken his summary judgment evidence and that if
he prevails on appeal, his claim for attorney’s fees should be remanded.
The trial court struck the document attached to Allegheny’s motion. The
document in question, entitled “Wise County Criminal Defense Attorneys,”
listed twenty-three attorneys’ names and the last date those attorneys had
written a bond, or “None” if they had not written any bonds. See Exhibit 1 to
this opinion. Walker’s attorney moved to strike the list, complaining that it had
never been posted or publicly available anywhere in the Wise County jail and
that the list constituted inadmissible hearsay, was unauthenticated, and “its
origin is not revealed anywhere in the Plaintiff’s summary judgment evidence.”
Assuming without deciding that it was error to exclude the document,
neither its presence nor absence as summary judgment evidence can alter this
opinion’s holdings. There is no evidence that the document was posted in the
jail, and the document itself, when compared to the list at issue, demonstrates
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that half of the attorneys on the list do not write bonds. Therefore, it
undermines, rather than supports, Allegheny’s argument that the sheriff violated
section 1704.304(b) by recommending the attorneys on the list as sureties in
competition with the licensed bondsmen in the section 1704.105(b) list.
Because Allegheny has not prevailed in his appeal, we need not address
his request for a remand on the attorney’s fees issue. We overrule Allegheny’s
“other issues.”
V. Conclusion
Having overruled all of Allegheny’s issues, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: December 10, 2009
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Exhibit 2
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