,-
THE ATTOKNEY GENERAL
OF TEXAS
May 12, 1988
Honorable Mike Driscoll Opinion No. JM-901
Harris County Attorney
1001 Preston, Suite 634 Re: Whether the Harris
Houston, Texas 77002 County Bail Bond Board-is
authorized to. regulate
licensed attorneys who
execute bail ..bonds for
criminal defendants
(RQ-1385)
Dear Mr. Driscoll:
You ask:
Whether the Harris County Bail Bond Board is
authorized to regulate licensed attorneys who
actually represent criminal defendants and/or
the Harris County Pre-trial Services Agency
in connection with their respective roles in
obtaining bail bonds for criminal defendants.
Section 3 of article 2372p-3, .V.T.C.S., provides:
The provisions of this Act apply only tom the
execution of bail bonds in counties having a
population of more than 110,000 according to
the last federal census or in counties of
less than 110,000 where.a board has been
created. The creation of the board is within
the discretion of a majority of the officers
of the county who would be members of, or who
would designate members of, the board as
provided under Subsection (b) of this
section.
(a) In a county that has a board, no
person may act as a bondsman except:
(1) persons licensed under this Act, and
p. 4441
Honorable Mike Driscoll - Page 2 (JM-901)
-.
(2) persons licensed to practice law in
this state who meet the requirements set
forth in Subsection (e) of Section 3 of this
Act.
(b) No individual is eligible for
license under this Act unless the individual:
(1) is a resident of this state and a
citizen of the United States:
(2) is at least 18 years of age;
(3) possesses sufficient financial
resources to provide indemnity against loss
on such obligations as he may undertake as
required by Section 6 of this Article.
(c) No person shall be eligible for a
license under this Act, who after the
effective date of this Act, commits an
offense for which he is finally convicted,
such offense being a felony or misdemeanor
involving moral turpitude. ?,
(d) No corporation is eligible to be
licensed unless:
(1) it is chartered or admitted to do
business in this state: and
(2) it is qualified to write fidelity,
guaranty and surety bonds under the Texas
Insurance Code, as amended.
(e) Persons licensed to vractice law in
this state mav execute bail bonds or act as
sureties for versons thev actuallv revresent
in criminal cases without beina licensed
under this Act, but thev are vrohibited from
enaaaina in the vractices made the basis for
revocation of license under this Act and if
found bv the sheriff to have violated any
term of this Act. mav not cualifv thereafter
under the excevtion vrovided in this subsec-
tion unless and until thev come into comvli-
ante with those vractices made the basis of
revocation under this Act. Notwithstanding
any other provision of this subsection, no
person licensed to practice law shall be ?
p. 4442
Honorable Mike Driscoll - Page 3 (m-901)
relieved of liability on a bail bond he has
executed for the sole reason that he has not
P
been employed to represent the principal on
the merits of the case if he has been paid a
fee for the execution of the bail bond.
(Emphasis added.)
Persons licensed to practice law in this state are
exempt from obtaining a license and are not required to
comply with the requirements imposed upon an applicant set
forth in section 6 of article 2372p-3. Minton v. Frank, 545
S.W.Zd 442 (Tex. 1976). Licensed attorneys are subject to
the act insofar as they are prohibited from engaging in
practices made the basis for revocation of a license. The
act expressly provides that this is a matter for the
determination of the sheriff.
Any officer "taking a bail bond shall require evidence
of the sufficiency of the security offered." Article 17.11
Code of Criminal Procedure. In Minton v. Frank the court
noted that bonds executed by attorneys are subject to this
provision.
An agency may not by its own rules extend or add to the
powers listed in a statute. Attorney General Opinion JM-251
(1984). Thus, the Harris County Bail Bond Board does not
have the authority to require attorneys to comply with
article 2372p-3 when the attorney has executed a bail bond
or acted as a surety for a person whom then attorney is
actually representing in a criminal case.
The information you furnish reflects that the Harris
County Pre-trial Services Agency performs the function of
the personal bond office authorized by article 2372p-2,
V.T.C.S. Article 2372p-2 provides that the duties of a
personal bond office are to gather and review information
about an accused that may have a bearing on whether he will
comply with the conditions of a personal bond and report its
findings to the court before which the case is pending.
Article 17.03 of the Code of Criminal Procedure authorizes
the court before which the case is pending, in its
discretion, to release the defendant on his personal bond
without sureties or other security. See Attorney General
Opinion JM-760 (1987).
An agency that performs the function of the personal
bond office, here the Harris County Pre-trial Services
Agency, does not perform the function of a bail bondsman.
The County Bail Bond Board, charged with certain statutory
- responsibilities in the licensing and regulation of bail
p. 4443
Honorable Mike Driscoll - Page 4 (JM-901)
bondsmen under article 2372p-3, is not authorized to
regulate an agency performing the functions of a personal
bond office.
SUMMARY
The Harris County Bail Bond Board does
not have the authority to require attorneys
to comply with article 2372p-3, V.T.C.S.,
when the attorney has executed a bail bond or
acted as a surety for a person the attorney
is actually representing in a criminal case.
Nor is such board authorized to regulate an
agency in gathering, reviewing and reporting
information to a court that may have a
bearing on whether an accused is entitled to
a personal bond under article 2372p-2,
V.T.C.S.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4444