Can a Texas county bail bond board charge bonding companies a fee to pay for a bail bond administrator?

TX AG Opinion GA-0735: Can a county bail bond board charge a fee to pay for a bail bond administrator?

Plain-English summary

The 79th Judicial District Attorney, Armando G. Barrera, asked whether a county bail bond board could charge bonding companies a fee to cover the cost of employing a bail bond administrator, either under section 1704.101 of the Occupations Code or any other statute.

The opinion said no. A bail bond board has real powers under chapter 1704: it exercises powers incidental or necessary to administering the chapter, deposits fees in the county general fund, supervises and regulates the bonding business, adopts rules, and employs persons necessary to assist in board functions. But a board may adopt only rules that are authorized by and consistent with its statutory authority, whether that authority is express or fairly implied.

No provision of chapter 1704, or any other statute the opinion could find, expressly authorizes a board to charge a fee to recover the cost of employing an administrator. And the opinion would not imply that authority from the board's power to adopt rules or to employ necessary staff. The governing rule is that courts strictly construe fee statutes and will not imply the authority to impose a fee, so a public entity other than a home-rule city may charge a fee only when a statute specifically authorizes it. The board does have a few express fee powers, like the $500 filing fees for a bail bondsman license application and renewal, but none reaches an administrator's salary. So the board cannot impose the fee.

Currency note

This opinion was issued in 2009. 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.

Chapter 1704 of the Occupations Code may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

County bail bond boards: The opinion described their fee authority as limited to what statutes expressly grant, and concluded they may not create a fee to fund a bail bond administrator's employment.

Bonding companies: The opinion explained that a board could not charge them a fee for the administrator's cost absent specific statutory authority.

Counties: The opinion described the general rule that a public entity other than a home-rule city may charge a fee only when specifically authorized by law, which constrains how the administrator's cost can be funded.

Common questions

Can the board fund an administrator by charging the bonding companies?
No, according to the opinion. No statute expressly authorizes such a fee, and fee authority cannot be implied from the board's rulemaking or hiring powers.

Doesn't the power to hire staff include the power to pay for them with a fee?
The opinion said no. The authority to "employ persons necessary to assist in board functions" does not carry an implied power to impose a fee, because fee authority must be specifically granted.

Does the board have any fee authority at all?
Yes, but only the express ones. The opinion noted the board's express fee powers, such as the $500 filing fees for a bail bondsman license application and renewal, none of which covers an administrator's salary.

Background and statutory framework

A bail bond board is mandatory in counties of 110,000 or more and permitted elsewhere, with a statutorily regulated composition (Tex. Occ. Code Ann. §§ 1704.051, 1704.052 (Vernon 2004); 1704.053 (Vernon Supp. 2008)), and its duties include exercising incidental or necessary powers, depositing fees in the county general fund, supervising the bonding business, adopting rules, and employing necessary persons (id. § 1704.101(1)-(4), (8) (Vernon 2004)). A board may adopt only rules authorized by and consistent with its statutory authority, express or implied (Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447, 452-55 (Tex. 2008)).

No statute expressly authorizes a fee to recover an administrator's cost, and the opinion would not imply one, because courts strictly construe fee statutes and a non-home-rule public entity may charge a fee only when specifically authorized (Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)). The board's express fee powers are limited (Tex. Occ. Code Ann. §§ 1704.154(b)(4)(D), 1704.162(c) (Vernon 2004)), and a related rule bars officers from imposing costs not expressly provided by law (Tex. Code Crim. Proc. Ann. art. 103.002 (Vernon 2006); Camacho v. Samaniego, 831 S.W.2d 804, 811-12 (Tex. 1992)).

Citations

Statutes:

• Tex. Occ. Code Ann. §§ 1704.051, 1704.052, 1704.101(1)-(4), (8), 1704.154(b)(4)(D), 1704.162(c) (Vernon 2004); 1704.053 (Vernon Supp. 2008)
• Tex. Code Crim. Proc. Ann. art. 103.002 (Vernon 2006)

Cases:

• Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008)
• Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)
• Camacho v. Samaniego, 831 S.W.2d 804 (Tex. 1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0735
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0735.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

August 6, 2009

The Honorable Armando G. Barrera
79th Judicial District Attorney
Post Office Drawer 3157
Alice, Texas 78333

Opinion No. GA-0735

Re: Authority of a county bail bond board to assess a fee to bail bond companies to recover the cost of employing a bail bond administrator (RQ-0786-GA)

Dear Mr. Barrera:

You ask whether a county bail bond board may impose a fee on bonding companies to pay for the cost of employing a bail bond administrator under section 1704.101 of the Occupations Code or any other statute.[1]

By way of background, we note that a bail bond board is statutorily mandated in a county of 110,000 persons or more and is permitted in other counties. TEX. OCC. CODE ANN. §§ 1704.051, .052 (Vernon 2004). The composition of a bail bond board is regulated by statute. See id. § 1704.053 (Vernon Supp. 2008). Under the terms of section 1704.101, Occupations Code, a bail bond board is required, inter alia, to:

(1) exercise powers incidental or necessary to the administration of this chapter;

(2) deposit fees collected under this chapter in the general fund of the county;

(3) supervise and regulate each phase of the bonding business in the county;

(4) adopt and post rules necessary to implement this chapter;

[and]

(8) employ persons necessary to assist in board functions[.]

Id. § 1704.101(1)-(4), (8) (Vernon 2004).

A recent decision of the Texas Supreme Court considered the authority of a bail bond board to promulgate rules regarding the solicitation of customers. The court found that, because a board must "'exercise powers incidental or necessary to the administration of'" chapter 1704, and "'supervise and regulate each phase of the bonding business,'" the power to regulate solicitation is within the board's power. Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447, 452-55 (Tex. 2008) (quoting subsections 1704.101(1), (3)). Despite its authority to adopt rules, however, a board "may adopt only such rules as are authorized by and consistent with its statutory authority." Id. at 452. Such authority "may be either expressly conferred by statute or implied from other powers and duties given or imposed by statute." Id.

No provision of chapter 1704, or any other statute we have found, expressly authorizes a board to assess a fee to recover the costs of employing a bail bond administrator. Nor do we believe that such authority may be implied from a board's power to adopt rules or to "employ persons necessary to assist in board functions." TEX. OCC. CODE ANN. § 1704.101(8) (Vernon 2004).[2] Moreover, a court will generally not imply authority to impose a fee, and as such, a public entity other than a home-rule city may not charge a fee unless that fee is specifically authorized by law. See Tex. Att'y Gen. Op. Nos. GA-0544 (2007) at 4 (a court strictly construes a statute imposing a fee and will not imply authority to impose a fee) (citing Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)); GA-0085 (2003) at 2 (commissioners court must have specific statutory authority to impose a fee), DM-22 (1991) at 1 (public entity other than home-rule city may charge fee only when specifically authorized by law, and not by implication); accord Tex. Att'y Gen. Op. Nos. JM-345 (1985) at 3, H-647 (1975) at 2, WW-1482 (1962) at 3.[3]

Based upon the preceding authority, we conclude that a county bail bond board may not impose a fee on bonding companies to pay for the costs of employing a bail bond administrator.[4]

SUMMARY

A county bail bond board may not impose a fee on bonding companies to pay for the cost of employing a bail bond administrator.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: A county bail bond board has some express authority to impose fees. See, e.g., TEX. OCC. CODE ANN. §§ 1704.154(b)(4)(D) (Vernon 2004) (authorizing payment of a $500 filing fee to accompany an application for licensure as a bail bondsman); 1704.162(c) (authorizing payment of a $500 filing fee for license renewal).]

[Footnote 3: It is also instructive that this office previously determined that the Webb County Bail Bond Board was not statutorily authorized to charge a $15 fee on each executed bail bond to pay the salary of a clerk to manage and keep bond records. See Tex. Att'y Gen. LO-90-25, at 2.]

[Footnote 4: Similarly, a provision of the Code of Criminal Procedure declares that "[a]n officer may not impose a cost for a service not performed or for a service for which a cost is not expressly provided by law." TEX. CODE CRIM. PROC. ANN. art. 103.002 (Vernon 2006) (emphasis added). This statute has been cited by the Texas Supreme Court to prohibit a county from collecting, in the absence of specific statutory authority, a pre-conviction bail bond approval fee. See Camacho v. Samaniego, 831 S.W.2d 804, 811-12 (Tex. 1992).]