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.
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The Attorney General of Texas
M MATTOX December 13, 1984
ttorney General
~pr~mr Coun Building Ronorablc Luther .Ioncs opinion No. 313-251
0. Box 1254E El PASO County Attorney
Jslin.TX.7S711-2549 201 City-County Bvllding Rc: Authority of the El Paso
21475.2501 El Paso, Texas 7’3901 Basil Bond Board to define the
aI*; 9101874-1297
term “designee” in article
Mcopiw 51214750299
2372p-3, V.T.C.S.
!4 Jackson.sUil9700 DeAr lb. Jones:
allas. TX. 752024500
:U742.8944
You Inquire vhether the El PASO County Bail Bond Board his
authority to sdol~t a rule which defines or limits the term “designee”
124Allmta Ave.. SuiN ISO as it appears In ikrticle 2372p-3, section S(b), V.T.C.S. We conclude
PIso. TX. 799052793 that the board’s adoption of a rule that adds additional qualifiu-
IYSU-3484 tions for certain membership on the board exceeds the powers delegated
to the board by the legislature.
Al 1*xar. Suit* 700
wsmn, TX. 77002-3~11 Section 5(b) of article 2372p-3 provides the following:
‘3122~5es9
(b) The County Bail Bond Board shall be
compos’~J of the following pcrsone:
(I) the county sheriff or his designee;
(2) district
A judge of the county having
xx rd.Term. Suit* S
jurisdiction over criminal mattera designated
!C*,,.n. TX. 7S501.lSS5
121682.4547 by the presiding judge of the administrative
judicial district;
m Main plus. Sui1e400 (3) the county judge or a member of the
an ~ntonio. TX. 79205.2797
coamlssioners court designated by the county
‘U225-4191
jui!g;e:
1:4,) a judge of a county court or A county
court at lew in the county having jurisdiction
over criminal metters designated by the
cola~irsinners court;
(!i) the district Sttorney or his designee;
(lj) a licensed bondsman. licensed in the
county, elected by other county licensees; and
n. 1120
-I .
Honorable tuthot Jones - PA~B 2 (JM-251) . .
(7) e justice of the peace.
You advise us that the gl PABO County Bail Bond Boerd adopted A
rule to limit a “designee” on thet boerd as follows:
Designees to the Bell Bond Boerd shall be a person
who is knovledge~a.ble of the matters within the
StAtutory member1 Office end/or an employee of
that department who could bo considered an
Aa8iStAXlt.
Article 2372p-3, sectfan S(f)(l) lllous e county bail bond board
[t]o exercise any powers incidental or necessary
to the administration of this Act, to supervise
and regulate all phases of the bonding business
and enforce thir. Act within the county, and to
prescribe and post eny rules necereary to imple-
meot this Act. . . .
In exercising the rulemaking authority granted by the legialaturc, AO
agency may promulgate rules and regulatioos which are constitutionel.
are within the graoted plnrer, end are sdopted io accordance with
proper procedure. Flowever, rules end regulations adopted by an agency
in this state may not impose additiooal burdena. conditioos. or
restrictions in excess of or inconsistent with, the authority granted
to the agency by the legislature. See BexAr County Bsil Bond Board V.
Deckard, 604 S.U.2d 214, ;!I,6 (Tex.xv. App. - Sao Antonio 1980, no
iiiriL). See also Cerst v. Oak Cliff Savings 6 Loan Association. 432
S.W.Zd 702. 706 (T-1 Kee v. Baber. 303 S.W.Zd 376 (Tex. 1957).
A cardinsl rule of st.ntutoty constructioo requires the COUrtS to
ascertain sod be uuided br the intentloo of the legislature AS
expressed in the statute. See City of Sherman v. Public Utility
Cous&asion. 643 S.U.Zd 681, m (Tsx. 1983). We believe that it is
not the intention of the Legislature to graot e bail bond board the
authority to adopt the ~lo in questlon. -
Sectioo S(b)(2)-(4) specifies that the designee of A presiding
judge of the administrative judicial district must be “a district
judge of the county having ‘jurisdiction over criminal UttCrS.” A
designee of the county judge must be A mamber of the eoonisaioners
court. and the designee of the cmiseioners court must be “a judge of
a county Court or A county court at law in the County having juris-
diction over criminal matters.” The statute does not include any
specific qualifications fDr designees of the sheriff and district
attorney. We believe that e court would find that the express mention
in the statute of very par,::lcular qualifications for certain designees
is tantamount to an express exclusion of qUSlifiCAtiOnS for all other
p. 1121
.- _-
.
Honorable Luther Jonem - PSJ;C f (JM-2%)
designees. A principal of statutory construction lkin to the uxir
thar “the express mention of one thing implies the exclusion of
another” is the principle t:het an agency may not by its ovn rules
extend or add to the powers listed in the ntetute. Peterson v.
Calvert, 473 S.W.Zd 314, 317 (Tex. Civ. App. - Austin 1971. vrit
‘m Ex parte McIver, 556 S.W.Zd 851; 856 (Ten. Grim. App. 1979).
See Bexar County B.11 Bond-Board v. Deckard, a; Attorney CcOerSl
Opinion MU-324 (1961). Rsoce. we conclude that the legislature
intended to retain for i,tself the determination of the 8peCifiC
qualifications oecessary for membership on a county bail bond board
and did not delegate to I:he boards the power to impose additional
qualifications.
In the absence of statutory language indicating a legislative
intent that a county bail bond board have the power to add to the
qualifications specified by the legislature, it is our opinion that
such a board lacks authori:y to adopt A rule which requires a designee
of the sheriff or district attorney to be AO employee of the office of
the appointing official DC A person knovledgeable of the matters
within the statutory member’s office.
SUMMARY
A county bai:. bond board may not adopt a rule
which requires Ihat a designee of the sheriff or
dittrict attorwy who is to serve on the board
shall be A person knowledgeable of the matters
within the eppplntiog official’s office or an
employee of the office.
JIM MATTOX
Attorney General of Texas
TOMCREEp
First Assistant Attorney General
DAVID R. RICP!BDS
Executive Assistant Attorney General
RICK CILPIN
Chairman, Opinion Comictee
Prepared by F!ancy Sutton
Assistant Attorney Cenerztl
P m llonotablo
Luthm Joam - Pq;et4 (Jl+251)
APPROVRDD:
OPINIONCOWITTC?i
Rick Gilpin,Ghaiw
GollnCarl
suuu GJrriaon
Tony Guillory
Jio Noellinger
JenniferRQ$s
Nancy Sutton
p. 1123