THE ATTORNEY GESERAI.
OF TEXa-iS
Honorable Mike Driscoll Opinion No. m-1277
Harris County Attorney
1001 Preston, Suite 634 Re: What constitutes a @*bond"
Houston, Texas 77002 for purposes of article 179f,
V.T.C.S., which regulates char-
itable raffles, and related
questions (RQ-2108)
Dear Mr. Driscoll:
Article 179f, V.T.C.S., provides for the conduct of
raffles1 by certain charitable organizations. Article 179f
was adopted in 1989; to be effective January 1, 1990. Acts
1989, 71st Leg., ch. 957, 5 1, at 4022.2
Section 3 of article 179f imposes various conditions on
the conduct of raffles under the article. You ask about the
scope of the language relating to the posting of bond in
subsection (j) of section 3, which provides:
A raffle is not authorized under this
article unless the organization has in its
possession or ownership the prize that is to
be offered in the raffle or posts b& with
1. Section 2(a)(8) of article 179f provides:
'Raffle' means the awarding of one or more prizes
by chance at a single occasion among a single pool or
group of persons who have paid or promised a thing of
value for a ticket that represents a chance to win a
prize.
2. The effectiveness of article 179f was contingent on
the adoption of subsection (d) of section 47 of article 111
of the Texas Constitution, authorizing the legislature to
provide for certain charitable raffles. The amendment
adding subsection (d) to article III, section 47, was
approved by the voters on November 7, 1989.
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Honorable Mike Driscoll - Page 2 (JM-1277)
the county clerk of the county in which the
raffle is to be held for the full amount of
the money value of such a prize. (Emphasis
added.)
You note that article 179f does not define the term
O1bondVOand ask first "what qualifies as a *bond"' for
purposes of subsection (j), section 3. We can not here
provide an all-inclusive definition of the term "bond" as it
is used in subsection (j), where the legislature has not
done so. In the brief you submitted with your request, you
consider in connection with your first question only whether
a bond issued by a surety company authorized to do business
in this state would qualify as a l@bondV* under subsection
(j). We will limit our response to your first question to
that issue.
You suggest that a bond executed by a surety company
authorized to do business in this state, as provided for in
article 7:19-l of the Insurance Code, would, if executed for
"the full amount of the money value of [the] prize" in ac-
cordance with subsection (j), qualify as a bond under that
subsection. We agree. Article 7.19-1 of the Insurance Code
on its face provides that whenever any bond is required by
law to be made, such bond may be executed by. a surety
company duly qualified to do business in this state and that
all public officers shall accept such bond as complying with
the requirements of such laws. Thus a bond executed by a
surety company authorized to do business in this state in
the amount required by section 3(j) of article 179f would
meet the requirement of a "bond" under that subsection.
You next ask whether the county clerk must accept a
"cash bond" under article 179f. You note that the existing
statutes governing the county clerk's handling of cash sums
to be held by the clerk would not apply to the clerk's
handling of cash amounts deposited with the clerk in connec-
tion with the bond requirement of article 179f. M Local
Gov't Code §§ 117.052 (clerk to place money deposited in
court pending result of legal proceeding in depository trust
fund account in name of clerk), 117.053 (any payment by
clerk from trust fund account must be made under order of
court in which funds were deposited). You argue that the
absence of statutory provision for the county clerk's
handling of a "cash bond" placed with the clerk under
article 179f, section 3(j), indicates that the legislature
did not contemplate that a clerk must accept a "cash bond"
in satisfaction of the bond requirement of that provision.
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,
Honorable Mike Driscoll - Page 3 (JM-1277)
The term OObondO1ordinarily refers to an "obligatory
instrument in writing." m 10 Tex. Jur. 3d w
yndertakinas § 1, and authorities cited therein.
merous statutory bond requirements, the legislature has
specified that cash bonds are acceptable. See. e.a
V.T.C.S. art. 179d, 5 13a(b)(manufacturer of bingo equipmen;
must give Alcoholic Beverage Commission 'cash bond" or bond
issued by surety company): Tax Code 5 151.253 (security for
sales tax permit application may be %ash bond" or bond from
surety company): Eft Attorney General Opinion JM-215 (1984)
(Department of Highways and Public Transportation could not
place limits on type of bond acceptable under article
6686(a)(7), V.T.C.S., which sets bond requirements for motor
vehicle dealers).3
We think that if the legislature had intended the term
*'bond" as used in article 179f to include a "cash bond," it
would have given a clearer indication of such intent than
we find in the sparse language of section 3(j), particularly
as there are no statutory procedures for the county clerk's
handling of the cash involved. If the county clerk, whose
duties are ministerial in nature,4 had been intended to
accept and handle cash bonds.under article 179f, we think
the legislature would have established procedures for his
doing so. As a practical matter, if an article 179f
organization had the monetary value of the prize available
in cash, it would not ordinarily need to post a bond -- it
could simply acquire the prize with such money. In response
to your second,guestion, it is our opinion that the county
clerk may not accept a "cash bond" in satisfaction of the
bond requirement of section 3(j) of article 179f.
you ask next what the term "postn bond in section 3(j)
means. Webster's defines the term "postU when used with the
word "bond" to mean "to furnish . . . to the proper authori-
ty." Webster#s Third New Int'l Dictionarv 1771 f4th ed.
1976). We think the requirement of nposginglQ in‘ section
3(j) is met when an acceptable bond is furnished, or
3._ The .bond requirement
_ in article 6686(a)(7) was
removed at tne next leglslacive session. Acts 1985, 69th
Leg., ch. 465, 5 5, at 1635.
4. See. e.a, county and Svecial
District Law 0 10.6 ixxti Pr%~ 1989) and authorities
cited therein.
p. 6845
’ .
Honorable Mike Driscoll - Page 4 (JM-1277)
delivered, to the county clerk. See also 10 Tex. Jur. 3d
Undertakinqg 5 9 (bond must be "delivered" to be
effective).
You ask last whether the county clerk must record such
bond, and, if so, in what county record the bond would be
filed.
The only provision we find that might arguably
authorize the recording of an article 179f raffle bond is
section 12.001(a) of the Property Code, which provides:
An instrument concerning real or personal
property may be recorded if it has been ac-
knowledged, sworn to with a proper jurat, or
proved according to law.
The ordinary meaning of the term 80instrument18is quite
broad. Black's defines 80instrument11 as *Ia formal or legal
document in writing, such as a contract, deed, will, bond,
or lease." Black's Law Dictionary 719 (5th ed. 1979). But
even if an article 179f bond might be an 01instrument,81 as
that term is used in section 12.001(a), we do not think it
would be one 'concerning real or personal property" within
the meaning of that provision. Such bond is required under
section 3(j) of article 179f only when the organization
conducting the raffle does not have the prize in its posses-
sion. Therefore such bond would not ordinarily Voncernq'
specific, identified property of the sort which we think a
section 12.001(a) instrument was intended to relate to. See
(former V.T.C.S. art. 6626(a)(provision codified without
substantive change as section 12.001(a) of the Property
Code, which enumerated as instruments subject to recording
"deeds, mortgages, conveyances, deeds of trust, bonds for
title, covenants, defeasances," etc.).
In response to your last question, it is our opinion
that the county clerk is not required to record an article
179f raffle bond.
SUMMARY
A bond issued by a surety company autho-
rized to do business in Texas under Insurance
Code article 7.19-1, if executed for the full
amount of the money value of the raffle
prize, would satisfy the bond requirement of
section 3(j) of article 179f, which relates
to charitable raffles.
Pm 6846
I
Honorable Mike Driscoll - Page 5 (JM-1277)
The county clerk may not accept a "cash
bond" in fulfillment of the bond requirement
of subsection (j).
The requirement in subsection (j) that an
organization "post" bond is met when an
acceptable bond is furnished or delivered to
the county clerk.
The county clerk is not required to record
an article 179f bond.
J-b
Very truly y
JIM
.
MATTOX
s,
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 6847