Can a Texas county bail bond board let an alternate sit in for the licensed bail bond surety member?

Plain-English summary

A district attorney asked whether a county bail bond board could let an "alternate" licensed bail bond surety serve on the board when the elected surety representative could not attend a meeting. The Attorney General concluded that it could not.

Chapter 1704 of the Occupations Code sets up county bail bond boards to license and regulate bail bond sureties. The board is made up of various local officials, and the statute expressly lets several of them send a designee: the sheriff, the county judge or a commissioners court member, the district attorney, and the district clerk can each be represented. The board also includes one licensed bail bond surety in the county, elected by the other licensed sureties. That surety member is the one the statute does not authorize to be represented by a designee.

The opinion applied a settled rule: a member of a commission or other governmental body may not delegate non-ministerial duties, such as participating in the body's deliberations and decision-making, and the body itself may not allow that delegation absent express statutory authority. The opinion cited earlier rulings that the Texas Racing Commission members could not send substitutes and that a planning commission could not provide for alternate members. Because chapter 1704 says nothing authorizing an alternate surety member, and because the board's general rule-making power under section 1704.101 cannot supply authority the statute withholds, the opinion concluded a county bail bond board may not permit an alternate licensed bail bond surety to serve when the elected surety representative is unable to attend.

Currency note

This opinion was issued in 2001. 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

County bail bond boards (what the opinion held): The opinion concluded the board could not seat an alternate licensed bail bond surety, and could not create one by rule, because chapter 1704 grants the surety member no designee and the board's rule-making power cannot add one.

Licensed bail bond sureties (what the opinion held for them): The opinion explained that the single surety seat, elected by the other sureties, is filled by that elected member alone; the statute did not let the sureties also elect an alternate to sit in.

Common questions

Who sits on a Texas county bail bond board?
The opinion described a board of local officials, including the sheriff, county judge or a commissioners court member, district attorney, and district clerk, plus one licensed bail bond surety elected by the other sureties in the county.

Which board members can send a substitute?
The opinion noted that the statute expressly authorizes designees for several members (the sheriff, the county judge or a commissioners court member, the district attorney, and the district clerk), but not for the licensed bail bond surety member.

Can the board just adopt a rule allowing an alternate surety?
No. The opinion said a governmental body cannot authorize an alternate or substitute member by rule without express statutory authority, and chapter 1704 provides none for the surety seat.

Why can't a board member send a substitute to deliberate?
The opinion relied on the rule that a member may not delegate non-ministerial duties like deliberating and voting absent express statutory authority, citing prior opinions on the Texas Racing Commission and a metropolitan planning commission.

Background and statutory framework

Chapter 1704 of the Occupations Code provides for the licensing and regulation of bail bond sureties by a county bail bond board. Tex. Occ. Code Ann. § 1704.001(2) (Vernon 2001) (defining "bail bond surety"). The chapter creates a board in each county with a population of 110,000 or more and permits creation of boards in less populous counties. Id. § 1704.051; id. §§ 1704.002(2), .052. The board has various powers, including authority to adopt rules necessary to implement chapter 1704. Id. § 1704.101. The board must meet at least monthly, and four members constitute a quorum. Id. § 1704.055; id. § 1704.056. The board consists of various local officials, some expressly authorized to send a designee, and "a licensed bail bond surety in the county elected by other licensed bail bond sureties in the county." Id. § 1704.053(1), (3), (5), (6), (8). A member of a governmental body may not delegate non-ministerial duties, and the body may not authorize such delegation by rule absent express statutory authority. The opinion drew on Attorney General Opinion JM-903 (1988) and Letter Opinions 90-091 and 94-028.

Citations

Statutory provisions:

• Tex. Occ. Code Ann. § 1704.001(2) (Vernon 2001)
• Tex. Occ. Code Ann. § 1704.051
• Tex. Occ. Code Ann. § 1704.002(2)
• Tex. Occ. Code Ann. § 1704.052
• Tex. Occ. Code Ann. § 1704.101
• Tex. Occ. Code Ann. § 1704.055
• Tex. Occ. Code Ann. § 1704.056
• Tex. Occ. Code Ann. § 1704.053

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0428
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0428.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

October 22, 2001

The Honorable Michael A. McDougal
District Attorney, Ninth Judicial District
301 North Thompson, Suite 106
Conroe, Texas 77301-2824

Opinion No. JC-0428

Re: Whether a county bail bond board may authorize an alternate to serve on the board when the licensed bail bond surety representative is unable to attend its meetings (RQ-0403-JC)

Dear Mr. McDougal:

You ask whether a county bail bond board may authorize an alternate licensed bail bond surety to serve on the board when the licensed bail bond surety representative is unable to attend. We conclude that a county bail bond board may not permit an alternate licensed bail bond surety to serve on the board.

Chapter 1704 of the Occupations Code provides for the licensing and regulation of bail bond sureties by a county bail bond board. See TEX. OCC. CODE ANN. § 1704.001(2) (Vernon 2001) (defining "bail bond surety" as "a person who executes a bail bond as a surety or cosurety for another person for compensation"). It creates a county bail bond board in each county with a population of 110,000 or more, see id. § 1704.051, and permits the creation of boards in less populous counties, see id. §§ 1704.002(2), .052. Section 1704.101 vests a county bail bond board with various powers, including the authority to adopt rules necessary to implement chapter 1704. See id. § 1704.101. A county bail bond board is required to meet at least once a month. See id. § 1704.055. Four members of the board constitute a quorum. See id. § 1704.056.

Under section 1704.053 of the Occupations Code, a county bail bond board consists of various local officials, some of whom are expressly authorized to be represented by a designee. See, e.g., id. § 1704.053(1) (county sheriff or a designee from his office), (3) (county judge, member of the commissioners court, or a designee approved by the commissioners court), (5) (district attorney or assistant-district-attorney designee), (8) (district clerk or his designee). Also included on the board is "a licensed bail bond surety in the county elected by other licensed bail bond sureties in the county." Id. § 1704.053(6).

You explain that the licensed sureties in Montgomery County "want to elect an 'alternate' surety representative to sit on the Board in the event their representative is unable to attend a Board meeting."[1] You ask whether this is permitted by section 1704.053 or whether a rule authorizing this practice is within a board's rule-making authority under section 1704.101.[2]

This office has concluded that a member of a commission or other governmental body may not delegate his or her non-ministerial duties, including the duty to participate in the body's deliberations and decision-making. See Tex. Att'y Gen. Op. No. JM-903 (1988) (Texas Racing Commission members not authorized to send substitutes); Tex. Att'y Gen. LO-90-091 (metropolitan planning commission does not have authority to provide for alternate members). Furthermore, the commission or governmental body itself may not allow a member to delegate such duties absent express statutory authority. See Tex. Att'y Gen. Op. No. JM-903 (1988) (Texas Racing Commission not authorized to allow substitutes for members); Tex. Att'y Gen. LO-94-028 (school board member does not have authority to delegate power to vote at school board meeting). In Attorney General Opinion JM-903, for example, this office concluded that members of the Texas Racing Commission were not authorized to send substitutes to act for them nor was the commission authorized to allow substitutes to "sit for absent members and speak but not vote." Tex. Att'y Gen. Op. No. JM-903 (1988) at 5. "In the absence of express statutory authority, a commission member may not delegate his responsibility to deliberate . . . . The commission may not authorize such delegation by rule." Id. By contrast, the Comptroller's chief clerk was expressly authorized by statute to sit as a member of the commission in the Comptroller's absence. See id. at 3-4.

Chapter 1704 does not authorize the election of an alternate licensed bail bond surety representative to serve on a county bail bond board. In contrast to other members of the board, the surety member is not authorized to be represented by a designee. See, e.g., TEX. OCC. CODE ANN. § 1704.053(1) (county sheriff or a designee from his office), (3) (county judge, member of the commissioners court, or a designee approved by the commissioners court), (5) (district attorney or assistant-district-attorney designee), (8) (district clerk or his designee) (Vernon 2001). Although section 1704.101 vests a county bail bond board with rule-making authority, a governmental entity may not authorize an alternate or substitute member by rule without express statutory authority. See Tex. Att'y Gen. Op. No. JM-903 (1988). No provision in chapter 1704 authorizes a county bail bond board to provide for an alternate licensed bail bond surety member. Accordingly, we conclude that a county bail bond board may not permit an alternate licensed bail bond surety to serve on the board when the licensed bail bond surety representative is unable to attend.

[1] Letter from Honorable Michael A. McDougal, District Attorney, Ninth Judicial District, to Honorable John Cornyn, Texas Attorney General (July 13, 2001) (on file with Opinion Committee).

[2] See id.

                                   SUMMARY

           A county bail bond board may not permit an alternate licensed bail bond surety to serve on the board when the licensed bail bond surety representative is unable to attend.

                                         JOHN CORNYN
                                         Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee