Can a Texas county bail bond board limit who a bail bondsman is allowed to hire?

Plain-English summary

Joel Littlefield, the Hunt County Attorney, asked whether a county bail bond board could adopt a rule barring a bail bond licensee from employing someone who is currently on probation or parole, or who is a defendant in a pending criminal case. The Hunt County Bail Bond Board had done exactly that in its Rule 9.1(g).

The opinion compared the rule to the governing statute. Occupations Code section 1704.302(c), enacted in 2001, says a person may not be paid for employment with a bonding business if, within the preceding ten years, the person was convicted of a moral-turpitude misdemeanor or a felony. The Board's Rule 9.1(f) tracked that statute. But Rule 9.1(g) went further: it denied employment to anyone currently on probation or parole, regardless of whether there was any conviction in the past ten years, and to anyone with a pending felony or misdemeanor case.

The Board's broad rulemaking powers under chapter 1704 of the Occupations Code let it supervise and regulate the bonding business and adopt rules to implement the chapter. The county's brief leaned on a 1989 decision recognizing that broad power. But the opinion explained that an agency's rules have to be consistent with state law and in harmony with the statute's objectives, and that Texas courts have repeatedly struck down local bail bond board rules that add to the qualifications the Legislature set. The opinion pointed to a case voiding a flat $100,000 security-deposit rule that conflicted with the statutory minimum, and to a case holding that a bail bond board administers the statute rather than amending it. Because Rule 9.1(g) imposed employment restrictions additional to and in conflict with section 1704.302, the opinion concluded the rule exceeded the Board's authority.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The county attorney and the bail bond board (as the opinion held for them): The opinion answered that Rule 9.1(g) exceeded the Board's authority, so the Board could not bar a licensee from employing a person on probation or parole or facing a pending criminal case on the strength of that rule.

Bail bond licensees and their employees (as the opinion described it): The opinion treated the extra restrictions as an impermissible additional burden. Under the statute as the opinion read it, the disqualifying event for an employee was a moral-turpitude misdemeanor or felony conviction within the past ten years, not current probation, parole, or a pending charge.

On the limits of a board's rulemaking power (as the opinion described it): The opinion described a bail bond board's job as administering the statute, not adding to the qualifications the Legislature enumerated, and distinguished regulating bondsmen's conduct once licensed from altering the licensing or employment requirements the statute fixes.

Common questions

Can a county bail bond board stop a bondsman from hiring someone on probation or parole?
According to the opinion, no, not by rule. The Attorney General concluded that the Hunt County rule doing so exceeded the Board's authority because it conflicted with the statutory employment standard.

What does state law actually say about who a bonding business can hire?
The opinion read Occupations Code section 1704.302(c) to disqualify a person from paid employment with a bonding business only if they were convicted of a moral-turpitude misdemeanor or a felony within the preceding ten years.

Doesn't a bail bond board have broad rulemaking power?
It has broad power to supervise and regulate the bonding business, but the opinion explained that its rules must stay consistent with and in harmony with the statute. Courts have struck down board rules that add to the qualifications the Legislature set.

Could the board regulate a licensee's conduct in other ways?
The opinion noted a distinction, drawn from the Texas Supreme Court's Pruett decision, between a board regulating bondsmen's conduct once they are licensed and a board adding to the licensing or employment requirements the statute specifies. The rule here fell on the impermissible side of that line.

Background and statutory framework

Chapter 1704 of the Occupations Code governs bail bonds. A bail bond board may exercise powers incidental or necessary to administering the chapter, supervise and regulate each phase of the bonding business, and adopt rules necessary to implement the chapter. Tex. Occ. Code Ann. § 1704.101 (West 2004). The statute disqualifies a person from paid employment with a bonding business if, within the preceding ten years, the person was convicted of a moral-turpitude misdemeanor or a felony. Id. § 1704.302(c) (West 2004).

The opinion relied on a line of Texas cases limiting bail bond boards to administering, not amending, the statute: Dallas Cnty. Bail Bond Bd. v. Stein, 771 S.W.2d 577, 580 (Tex. App.-Dallas 1989, writ denied); Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008) (quoting Gerst v. Oak Cliff Savs. & Loan Ass'n., 432 S.W.2d 702, 706 (Tex. 1968)); Tex. Fire & Cas. Co. v. Harris Cnty. Bail Bond Bd., 684 S.W.2d 177, 179 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.); and Bexar Cnty. Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 217 (Tex. Civ. App.-San Antonio 1980, no writ). Reading those together, the opinion concluded Rule 9.1(g) imposed additional and conflicting burdens and exceeded the Board's authority.

Citations

Cases:

• Dallas Cnty. Bail Bond Bd. v. Stein, 771 S.W.2d 577, 580 (Tex. App.-Dallas 1989, writ denied)
• Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008)
• Gerst v. Oak Cliff Savs. & Loan Ass'n., 432 S.W.2d 702, 706 (Tex. 1968)
• Tex. Fire & Cas. Co. v. Harris Cnty. Bail Bond Bd., 684 S.W.2d 177, 179 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.)
• Bexar Cnty. Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 217 (Tex. Civ. App.-San Antonio 1980, no writ)

Statutes:

• Tex. Occ. Code Ann. § 1704.302(c) (West 2004)
• Tex. Occ. Code Ann. § 1704.101 (West 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0895
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0895.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 8, 2011

The Honorable Joel D. Littlefield Opinion No. GA-0895
Hunt County Attorney
Post Office Box 1097 Re: Authority of a county bail bond board to enact
Greenville, Texas 75403-1097 a rule that restricts a bail bond licensee from
employing a person who is currently on probation
or parole, or who is the defendant in a pending
criminal case (RQ-0976-GA)

Dear Mr. Littlefield:

You ask about the authority of a county bail bond board to enact a rule that restricts a bail bond licensee from employing an individual who is currently on probation or parole, or who is the defendant in a pending criminal case.[1] You specifically inquire about Rule 9.1(g), adopted by the Hunt County Bail Bond Board (the "Board"). See Request Letter at 2.[2]

Rule 9.1 defines "employee" as "any person hired by a Licensed Surety who performs" certain duties. Board Rule 9.1. The rule further provides that the employee

(f) must not have been convicted of a misdemeanor involving moral turpitude or a felony in the past ten (10) years and

(g) is not currently on probation, parole or has a misdemeanor or felony case pending.

Id. Subsection (f) of the Board's rule closely tracks the language of a 2001 statute:

A person may not accept or receive from a license holder money, property, or any other thing of value as payment for employment with a bonding business if, within the preceding 10 years, the person has been convicted of a misdemeanor involving moral turpitude or of a felony.

TEX. OCC. CODE ANN. § 1704.302(c) (West 2004).[3] Subsection (g) of the Board's rule, however, imposes additional requirements that exceed the prohibitions established by the Legislature when it enacted section 1704.302, specifically that the Board would prohibit a licensee from employing an individual who is currently on probation or parole, or who is the subject of a pending felony or misdemeanor prosecution. See Board Rule 9.1(g). You suggest that, by virtue of the broad authority conferred upon a bail bond board, the promulgation of subsection (g) is within the power of the Board in question.[4]

Pursuant to chapter 1704 of the Occupations Code, a bail bond board is authorized, in relevant part, to

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

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

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

TEX. OCC. CODE ANN. § 1704.101 (West 2004). Your brief relies on an appellate decision from 1989 that declared that this "broad rule-making power impliedly authorizes the [Dallas County Bail Bond] Board to supervise and regulate employees of bondsmen to the extent that such employees perform meaningful duties in the bonding business." Dallas Cnty. Bail Bond Bd. v. Stein, 771 S.W.2d 577, 580 (Tex. App.-Dallas 1989, writ denied); see County Attorney's Brief at 1-2. However, the Stein opinion was issued before the Legislature had "expressly set forth eligibility requirements for employees of licensees." Stein, 771 S.W.2d at 580. As the opinion noted, however, "an agency's rules must be consistent with the laws of this state." Id. Moreover, the Texas Supreme Court has observed that, "[i]n deciding whether a particular administrative agency has exceeded its rule-making powers, the determinative factor is whether the rule's provisions are 'in harmony with the general objectives of the Act involved.'" Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008) (quoting Gerst v. Oak Cliff Savs. & Loan Ass'n., 432 S.W.2d 702, 706 (Tex. 1968)).

As noted above, in 2001 the Legislature placed specific restrictions on a bail bond business's employees. See TEX. OCC. CODE ANN. § 1704.302(c) (West 2004).[5] Under subsection (g) of Rule 9.1, the Hunt County Bail Bond Board imposes additional restrictions beyond those prescribed by the Legislature by denying employment to any person who is currently on probation or parole without regard to whether the individual was convicted within the past ten years. See Board Rule 9.1(g). The rule further denies employment to any person who is the subject of a pending felony or misdemeanor. See id. In 1984, an appellate court considered whether a bail bond board was permitted to promulgate a rule that required a licensee to furnish a $100,000 security deposit in order to do business in the county. See Tex. Fire & Cas. Co. v. Harris Cnty. Bail Bond Bd., 684 S.W.2d 177 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). The court said that, because the relevant statute imposes a security deposit of not less than $5,000, but is otherwise determined by the applicant, the local rule establishing a flat $100,000 deposit "is a minimum in direct conflict with the statutory authority." Tex. Fire & Cas. Co., 684 S.W.2d at 179. "The local rules thus impermissibly impose additional and conflicting burdens on bail bond applicants and consequently must fail." Id.; see also Bexar Cnty. Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 217 (Tex. Civ. App.-San Antonio 1980, no writ) ("The function of the bail bond board is to administer the statute, not to amend it, at least in the absence of statutory language indicating a legislative intent that the board should have the power to add to the qualifications enumerated by the [L]egislature.").

Like the rules established by the bail bond boards in the Harris and Bexar County cases, Board Rule 9.1(g) prescribes requirements for employees of bail bond licensees that "impermissibly impose additional and conflicting burdens" on those licensees and their employees. Tex. Fire & Cas. Co., 684 S.W.2d at 179. As a result, we conclude that Rule 9.1(g) exceeds the authority of the Board.

SUMMARY

A rule of the Hunt County Bail Bond Board that restricts a bail bond licensee from employing an individual who is currently on probation or parole, or is the defendant in a pending criminal case, impermissibly imposes burdens on those employees that are additional to and in conflict with section 1704.302 of the Texas Occupations Code. The rule thus exceeds the authority of the Board.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Joel D. Littlefield, Hunt County Attorney, to Honorable Greg Abbott, Attorney General of Texas (June 13, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] See id. at Exhibit A (Rules and Regulations of the Hunt County Bail Bond Board at 15 (Sept. 16, 2010)) ("Board Rule 9.1").

[3] Act of May 27, 2001, 77th Leg., R.S., ch. 1262, § 12, 2001 Tex. Gen. Laws 2996, 3000.

[4] See Request Letter at Exhibit B (Brief from Joel D. Littlefield at 1-2) ("County Attorney's Brief").

[5] Act of May 27, 2001, 77th Leg., R.S., ch. 1262, § 12, 2001 Tex. Gen. Laws 2996, 3000.

[6] The Texas Supreme Court's opinion in Pruett is not to the contrary. In that case, a county bail bond board suspended the license of a bail bondsman for violating two rules governing solicitation. Pruett, 249 S.W.3d at 451. The rules prohibited a licensee from soliciting within twenty-four hours after the execution of an arrest warrant and during certain "non-business hours." Id. at 451 n.3. Although the court emphasized that the board's "explicit power is unambiguously broad" and noted that "no part of the Occupations Code ... would appear to single out solicitation as an impermissible area of agency rule-making," the court also observed that "courts have held bail bond boards may not add to licensing requirements in light of the extremely detailed licensing regime that the Legislature established." Id. at 453-54. The court distinguished the solicitation rules from the kind of additional licensing requirements at issue in Texas Fire & Casualty Co. by noting that "a board's attempt to alter or add to licensing requirements specified in the Bail Bond Act is not the same as a board's regulation of bondsmen once they are licensed." Id. at 454. In the situation you pose, the Hunt County Bail Bond Board has attempted to impose on both bail bondsmen and their employees burdens that are additional to and in conflict with those established by the Legislature. Compare Board Rule 9.1(g), with TEX. OCC. CODE ANN. § 1704.302(c) (West 2004).