Untitled Texas Attorney General Opinion

The Attorney General of Texas Ocwber 3, 1984 JIM MATTOX Attorney General Suoremo Court Suildinq Honorable Tim Curry Opinion No. JM-206 P. 0. BOX 1254S - Criminal District Attorney Austin. TX. 78711. 254S Tarrant County Courthouse Re: Whether a county bail 5121475.2501 Fort Worth, Texas 76102 bond board may limit the Telex QlM87ClM7 number of bail bond licenses Telecopier 51214750266 granted in that county 714 Jackson. Suite 700 Dear Mr. Curry: Dallas. TX. 75202.4506 214i742.W44 You ask whether article 2372p-3, V.T.C.S.. grants the Tarrant County Bail Bond I;oard authority to limit the number of bail bond 4524 Alberta Ave.. Suite 180 licensees in Tarr,iut County. You inform us that the act, vhich in El Paso. TX. 79905-2793 section S(f) (1) gr’ants county bail bond boards the authority “to 91515353484 supervise and regul.ate all phases of the bonding business,” has been read to include tlw power to promulgate rules limiting the number of licenses granted by the board. The quoted language was added to article 2372p-3 in 1981 and, you suggest, may be the legislative response to -- Bexar I:ounty Bail Bond Board v. Deckard, 604 S.W.2d 214 (Tex. Civ. App. - .;an Antonio 1980. no writ). In Deckard, the court of civil appeals ruled that a bail bond board may not Impose require- 806 Broadway, Suits 312 Lubbock. TX. 79401.3479 ments on applicanc:rl for licenses in addition to those prescribed by KW747-5238 the legislature. Despite the coincidence of this case and the seemingly broad l.egislative reaction to it. you contend that the stronger argument is that the Tarrant County Bail Bond Board is 4309 N. Tenth. Suite B vithout authority to limit the number of licenses it issues. We agree McAlla”. TX. 78501-1885 5,2/882-4547 with your conclusion and answer your question accordingly. Pursuant to :lts police pover, the legislature may properly 200 Main Plaza, Suite 400 delegate to a boari: or agency the power to grant, refuse, revoke, or San Antonio. TX. 782052797 cancel licenses regulating businesses and occupations. Trimble v. 51242254191 State Board of Registration for Professional En ineers, 483 S.W.Zd 275 (Tex. Civ. App. - Elert. denied, 412 An Equal Opportunityl U.S. 920 (1978). Such .power , however, may only be exercised as Attifmative Action EmPloYel expressly granted by statute or necessarily Implied therefrom. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961). Thus, this office has p;eviously concluded that in pursuit of its lawful duties, a bail bond board may investigate an applicant’s reputation for honesty, truthtulness. fair dealing, and competency. Attorney General Opinion H-$41 (1974). However, in enacting any necessary rules or regulations, a licensing board “may not act contrary to but only consistent with. and in furtherance of, the expressed statutory p. 926 Ronorable Tim Curry - Page 2 (JM-206) purposes.” American Liberty Insurance Co. v. Ransau, 481 S.W.2d 793, 796-97 (Tex. 1972). Whethex-a bail bond board may limit the number of licensees in a county, therefore, must be determined by reference to statute. A review of article 3!372p-3 reveals no provision expressly granting the power sought by the Tarrant County Bail Bond Board. Nor, we believe, can such authority be implied from the act. As noted above, article 2372p-3 was :;ignificantly amended in 1981. See Acts 1981, 67th Leg., ch. 312!, at 875. The amendments were Tf ered primarily to facilitate the ,:ollection of unpaid bond forfeitures, to require more detailed information concerning an applicant’s financial background, to require adec,t.ate amounts of cash or property surety, and to delineate “the manrmsr in which a license may be refused, suspended, revoked, or cancelled.” Bill Analysis to Senate Bill No. 727, prepared for House C,xmuittee on Criminal Jurisprudence, 67th Leg., 1981. filed in Bill File to Senate Bill No. 727, Legislative Reference Library. Consequently, it is unmistakably clear that the legislature sought to “strengthen the authority of County Bail Bond, Boards so they may regulate the bail bond business more properly.” & It is equally apparent, however, that in accomplishing this the legislature did not intend to bestov on these entities the unbridled discretion to grant or refuse applications on grounds not found in article 2372p-3. Article 2372p-3 requires the bail bond board “to issue licenses to those applicants who qualify under the terms of this Act.” Sec. 5 (0 (2). In addition, if “the board is satisfied that no grounds exist on which to refuse the application, the board shall enter an order tentatively approving the application,” provided the applicant subsequently satisfies the security requirements of the act. Sec. 6(e). Section 9(a). meanwhILe, provides that a board may only deny a license “to any person who t,as not complied with the requirements of this Act for applying for ,an original or renewal license.” It is obvious, then, that althou:I:r the county bail bond board is charged with the duty of regulating “all phases of the bonding business,” the board is not accorded authcrity to establish a ceiling on the number of licenses it shall issue. Since no limitation on the number of bail bond licensees is authorized by article 2372p-3, any attempt by the Tarrant County Eail Bond Board to engraft such a limitation on the act by rule would fall squarely within the prohibition of the Deckard decision. The rule-making power of the b:r:ll bond board under the act was strictly construed by the court of civil appeals in that case and, in our opinion, remains unaffected hy the 1981 amendments to the statute: The rule-making pqxrer delegated to the board under the statute is rurely the power to make rules p. 927 Eonorable Tim Curry - Page 3 (JM-206) relating to the: making and setting of bail bonds. . . . The legislature has carefully set out the requirements whict; must be met by applicanta for bail bond licencws. . . . The function of the bail bond board :LII to administer the statute. not to amend it. at Least in the absence of statutory language 1ndicati.r.g a legislative intent that the board should hz.ve the power to add to the qualifications enumerated by the legislature. Deckard. supra at 217. We are reminded that I:he policy of this state with regard to the bail bond business is to provide -- reasor.rble regulation to the end that the right of bai:. be preserved and implemented by lust and practicsJ procedures governing the giving or making of bail bond and other security to guarantee appeara-Ice of the accused. (Emphasis added). V.T.C.S. art. 2372p-3, 81. The act provides no standard upon which to base the limitation contraplated by the Tarrant County Bail Bond Board. Without direction from the statute. the board might be encouraged to regulate ar'~Ltrarily, a practice the legislature has taken pains to eliminatc~. Moreover, it is conceivable that a predetermined limit on the number of bail bond licenses issued would erode, rather than preserve:, the right of bail. SUMMARY Article 2372~4, V.T.C.S.. does not authorize the Tarrant County Bail Bond Board to limit the number of bail bc1r.d licensees in Tarrant County. Jr& HATTOX Attorney General of Texas TOMGREEN First Assistant AttONey Gweral p. 928 Iionorable Tim Curry - Page 1 (JM-206) DAVID R. RICRARDS Executive Assistant Attorney General Prepared by Rick Gilpin Assistant Attorney General APPROVED: OPINIONCOHMIlTEE Rick Gilpin, Chairman David Brooks Colin Carl Susan Garrison Jim Moellinger Nancy Sutton P. 929