Can a bail bondsman park a car with advertising on it in a county jail parking lot in Texas?

TX AG Opinion GA-0502: Do bail bond vehicle ads in a jail parking lot count as illegal solicitation?

Plain-English summary

The McLennan County Criminal District Attorney asked whether a bail bondsman violates the law by parking a vehicle that carries his advertising in the county jail parking lot. The relevant statute, section 1704.304(c) of the Occupations Code, says a bail bond surety or agent "may not solicit bonding business in a police station, jail, prison, detention facility, or other place of detainment." McLennan County has more than 110,000 people, so it has a bail bond board and is covered by chapter 1704's regulatory scheme.

The opinion did not have to decide whether a jail parking lot counts as part of the "jail." It resolved the question on a different point: whether displaying advertising on a vehicle is "solicitation" at all, since solicitation is the specific activity the statute forbids. The opinion concluded it is not. Drawing on decisions from other states (no Texas case had squarely addressed it), the opinion explained that "solicit" means to move someone to action, to ask, a personal petition directed to a particular individual, while "advertising" is calling information to the attention of the public generally. The two are different. Chapter 1704 itself reflects that difference: section 1704.109(a) lets a bail bond board regulate "solicitations or advertisements," treating them as separate things. So the opinion concluded that section 1704.304(c) does not prohibit a licensee from displaying advertising or licensee information on a vehicle in a county jail parking lot.

The district attorney also asked two follow-up questions: if the answer to the first was no, could the bail bond board adopt a local rule banning such vehicle advertising, and would that rule run afoul of the First Amendment's protection for commercial speech. The opinion declined to answer both. The constitutionality of section 1704.109, the provision that authorizes a board to regulate solicitation and advertising, was then under active judicial review. A state court of appeals (Harris County Bail Bond Board v. Pruett) had largely upheld solicitation rules, while a federal district court (Pruett v. Harris County Bail Bond Board) had struck down subsection (b) as an improper restriction on commercial speech under the Central Hudson standard, and the Texas Supreme Court had granted review in the state case in September 2006. Because any rule regulating advertising might be affected by the outcome, the opinion declined to answer the second and third questions on the basis of pending litigation.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion turned on litigation (the Pruett cases) that was still pending in 2007, and on the 2004 version of chapter 1704 of the Occupations Code. Both the statute and the case law have moved since then. Anyone dealing with bail bond advertising rules today should check the current statute and how the Pruett litigation and later decisions came out.

Who this opinion affected (as of 2007)

Bail bond licensees: The opinion meant that, as of 2007, displaying advertising or licensee information on a vehicle parked in a county jail parking lot was not the kind of in-jail "solicitation" that section 1704.304(c) prohibits.

Bail bond boards and county prosecutors: The opinion told them that the in-jail solicitation ban in section 1704.304(c) did not reach vehicle advertising, and that the separate question of a board's power to regulate or ban such advertising (and any First Amendment limits on it) was unresolved because the governing statute's constitutionality was in litigation.

Anyone watching the commercial-speech dispute: The opinion flagged that the Texas Supreme Court had taken up the state Pruett case and that a federal court had already struck down part of section 1704.109, so the rules on regulating bail bond advertising were unsettled at the time.

Common questions

Is it illegal for a bail bondsman to park an advertising-covered car in a jail parking lot?
Not under section 1704.304(c), as the opinion read it. The opinion concluded that displaying advertising on a vehicle is not "solicitation," which is the only activity that statute prohibits inside a jail or other place of detention.

What's the difference between advertising and solicitation here?
The opinion explained that solicitation is a personal petition directed at a particular individual to do a particular thing, while advertising is calling information to the attention of the public generally. The in-jail ban targets solicitation, not advertising.

Could the bail bond board just pass a rule banning the vehicle ads?
The opinion declined to answer. It noted that section 1704.109(a) lets a board regulate advertisements, but because the constitutionality of section 1704.109 was in active litigation, it would not opine on whether such a rule could be adopted or enforced.

Why didn't the AG address the First Amendment question?
The opinion explained that the commercial-speech issue was bound up with the same pending litigation (the Pruett cases, including a federal decision applying the Central Hudson standard), so it declined to answer on the basis of pending litigation.

Background and statutory framework

Chapter 1704 of the Occupations Code regulates bail bond sureties. A bail bond board is created in each county with a population of 110,000 or more, which includes McLennan County. Section 1704.304(c) provides that a bail bond surety or agent "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." The question was whether displaying advertising on a vehicle in the jail parking lot is the "solicitation" that statute forbids (Tex. Occ. Code Ann. §§ 1704.051, 1704.304(c) (Vernon 2004)).

The opinion concluded advertising is not solicitation, relying on out-of-state authority distinguishing the terms and on chapter 1704's own text, which separately references "solicitations or advertisements" in the board's rulemaking authority (Tex. Occ. Code Ann. § 1704.109(a) (Vernon 2004); Kofler v. Joint Bar Ass'n, 412 N.E.2d 927, 931 (N.Y. 1980), cert. denied, 450 U.S. 1026 (1981); Carter v. State, 98 S.W. 704, 704 (Ark. 1906); Smith, Waters, Kuehn, Burnett & Hughes, Ltd. v. Burnett, 548 N.E.2d 1331, 1336 (Ill. App. 3d 1989); Akron Pest Control v. Rudar Exterminating Co., Inc., 455 S.E.2d 601, 603 (Ga. App. 1995)).

On the questions about the board's power to regulate the advertising and the First Amendment limits, the opinion declined because the constitutionality of section 1704.109 was in active litigation. A state court of appeals had largely upheld solicitation rules adopted under a board's general rulemaking authority (sections 1704.101 and 1704.109), while a federal district court had struck down subsection (b) as an improper restriction on commercial speech, and the Texas Supreme Court had granted review (Tex. Occ. Code Ann. §§ 1704.101, 1704.109(b) (Vernon 2004); Harris County Bail Bond Board v. Pruett, 177 S.W.3d 260 (Tex. App.-Houston [1st Dist.] 2005, pet. granted); Pruett v. Harris County Bail Bond Board, 400 F. Supp. 2d 967 (S.D. Tex. 2005)).

Citations

Statutes:

• Tex. Occ. Code Ann. §§ 1704.051, 1704.101, 1704.109(a)-(b), 1704.304(c) (Vernon 2004)

Cases:

• Kofler v. Joint Bar Ass'n, 412 N.E.2d 927, 931 (N.Y. 1980), cert. denied, 450 U.S. 1026 (1981)
• Carter v. State, 98 S.W. 704, 704 (Ark. 1906)
• Smith, Waters, Kuehn, Burnett & Hughes, Ltd. v. Burnett, 548 N.E.2d 1331, 1336 (Ill. App. 3d 1989)
• Akron Pest Control v. Rudar Exterminating Co., Inc., 455 S.E.2d 601, 603 (Ga. App. 1995)
• Harris County Bail Bond Board v. Pruett, 177 S.W.3d 260 (Tex. App.-Houston [1st Dist.] 2005, pet. granted)
• Pruett v. Harris County Bail Bond Board, 400 F. Supp. 2d 967 (S.D. Tex. 2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0502
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0502.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 24, 2007

The Honorable John W. Segrest
McLennan County Criminal District Attorney
219 North 6th Street, Suite 200
Waco, Texas 76701

Opinion No. GA-0502

Re: Whether section 1704.304(c) of the Occupations Code, which prohibits solicitation of bail bond customers in a jail, extends to advertising or licensee information displayed on a licensee's vehicle when the vehicle is located in a county jail parking lot (RQ-0507-GA)

Dear Mr. Segrest:

You ask several questions about a bail bond licensee's display of advertising on his vehicle when that vehicle is located in the county jail parking lot.[1] You first inquire whether that practice is prohibited by section 1704.304(c) of the Occupations Code. See Request Letter, supra note 1, at 2.

Chapter 1704 of the Occupations Code provides for the regulation of bail bond sureties. Section 1704.051 declares that a bail bond "board is created in each county with a population of 110,000 or more." TEX. OCC. CODE ANN. § 1704.051 (Vernon 2004). McLennan County had a population of greater than 110,000 in the last decennial census, and thus is a bail bond board county.[2] Section 1704.304 provides that "[a] bail bond surety or an agent of 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(c) (emphasis added). Your first question is whether this statute prohibits "advertising or licensee information from being displayed on a licensee's vehicle in a jail parking lot." Request Letter, supra note 1, at 2.

Your inquiry raises the issue of whether a jail parking lot is included within the meaning of "jail" for purposes of section 1704.304(c). As you indicate, however, resolution of that issue is not necessary to resolve your particular fact situation. Id. at 3. The primary issue before us is whether a bail bond licensee's display of advertising on his vehicle constitutes "solicitation," the specific activity prohibited by section 1704.304(c).

"Advertising" is not tantamount to "solicitation." Although no Texas case has squarely confronted this issue, the courts of a number of other states have done so. The New York Court of Appeals held that, for purposes of the statutes governing attorney conduct, "'solicit' means to move to action, to endeavor to obtain by asking, and implies personal petition to a particular individual to do a particular thing . . . while 'advertising' is the calling of information to the attention of the public." Kofler v. Joint Bar Ass'n, 412 N.E.2d 927, 931 (N.Y. 1980), cert. denied, 450 U.S. 1026 (1981) (citing BLACK'S LAW DICTIONARY 1248-49 (5th ed. 1979)). Likewise, the Arkansas Supreme Court distinguished the two terms in stating that "soliciting is a well-known and defined action, and advertising is an equally well-known and defined action, and they are not identical." Carter v. State, 98 S.W. 704, 704 (Ark. 1906); see also Smith, Waters, Kuehn, Burnett & Hughes, Ltd. v. Burnett, 548 N.E.2d 1331, 1336 (Ill. App. 3d 1989) ("Solicitation of legal services, as opposed to advertising, connotes a private communication directed at a person or category of persons known by an attorney to have an immediate potential need for legal services."); Akron Pest Control v. Rudar Exterminating Co., Inc., 455 S.E.2d 601, 603 (Ga. App. 1995) ("The term ['solicit'] implies personal petition and importunity addressed to a particular individual to do some particular thing."). In addition, another provision of chapter 1704 of the Occupations Code indicates a distinction between "solicitation" and "advertisement." Section 1704.109(a) provides that "[a bail bond] board by rule may regulate solicitations or advertisements by or on behalf of bail bond sureties." TEX. OCC. CODE ANN. § 1704.109(a) (Vernon 2004) (emphasis added). We conclude, on the basis of the above-referenced authority, that section 1704.304(c) does not prohibit a bail bond licensee's display of advertising or licensee information on a vehicle in the parking lot of a county jail.

You also ask whether, "[i]f the answer to [question] number 1 is in the negative," the bail bond board may enact "a local rule prohibiting the display of licensee advertising or information on licensee vehicles that are parked in the Jail parking lot." Request Letter, supra note 1, at 2-3. As we have indicated, section 1704.109(a) permits a bail bond board by rule to regulate advertisements. TEX. OCC. CODE ANN. § 1704.109(a) (Vernon 2004). In order to answer your second question, however, we must simultaneously address your third question, i.e., whether any such regulation would "be violative of the First Amendment rights of licensees respecting 'commercial speech.'" Request Letter, supra note 1, at 3.

Currently, that portion of section 1704.109 which expressly authorizes the regulation of solicitation by bail bond licensees is under judicial review. Two conflicting judicial decisions have considered the constitutionality of section 1704.109 of the Occupations Code, although not subsection (a) thereof. First, a state court of appeals held that, for the most part, rules regarding the regulation of solicitation that were adopted under the general rule-making authority of a bail bond board did not constitute an unconstitutional restriction on commercial speech.[3] See Harris County Bail Bond Board v. Pruett, 177 S.W.3d 260 (Tex. App.-Houston [1st Dist.] 2005, pet. granted). Shortly thereafter, a federal district court in Houston struck down the entirety of subsection (b), holding it an improper restriction on commercial speech under the standard of Central Hudson Gas & Electric Corporation. See Pruett v. Harris County Bail Bond Board, 400 F. Supp. 2d 967 (S.D. Tex. 2005). On September 1, 2006, the Texas Supreme Court granted review in the state case. Because it appears that any rule regulating advertising might be impacted by the court's decision in Pruett, we must decline to answer your second and third questions on the basis of pending litigation.

SUMMARY

Section 1704.304(c) of the Occupations Code does not prohibit a bail bond licensee's display of advertising or licensee information on a vehicle in the parking lot of a county jail. The constitutionality of section 1704.109, which permits a bail bond board to regulate the solicitation and advertisement of bail bonds, is the subject of current litigation.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Footnotes

[1] Letter from Honorable John W. Segrest, McLennan County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (July 11, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See U.S. CENSUS BUREAU, 2000 CENSUS OF POPULATION, STATE & COUNTY QUICKFACTS, available at http://quickfacts.census.gov/qfd/states/48/48309.html (McLennan County population: 213,517) (last visited Nov. 1, 2006).

[3] In its opinion, the court of appeals noted that the rules of the Harris County Bail Bond Board were adopted prior to the enactment of section 1704.109 of the Occupations Code. As a result, the court, noting that section 1704.109 "basically mirrors" the rules at issue, considered those rules under section 1704.101 of the Occupations Code, which provides, inter alia, that a bail bond board shall "supervise and regulate each phase of the bonding business in the county," and shall "adopt and post rules necessary to implement this chapter." Pruett, 177 S.W.3d at 267-68 (quoting TEX. OCC. CODE ANN. § 1704.101). Nevertheless, the court's conclusions regarding the constitutionality of the rules adopted under section 1704.101 are equally applicable to the constitutionality of rules adopted under section 1704.109.

[4] Subsection (b) provides:

(b) A bail bond surety, an agent of a corporate surety, or an employee of the surety or agent may not make, cause to be made, or benefit from unsolicited contact:

(1) through any means, including in person, by telephone, by electronic methods, or in writing, to solicit bonding business related to an individual with an outstanding arrest warrant that has not been executed, unless the bail bond surety or agent for a corporate surety has an existing bail bond on the individual; or

(2) in person or by telephone to solicit bonding business:

(A) that occurs between the hours of 9 p.m. and 9 a.m.; or

(B) within 24 hours after:

(i) the execution of an arrest warrant on the individual; or

(ii) an arrest without a warrant on the individual.

TEX. OCC. CODE ANN. § 1704.109(b) (Vernon 2004).