Can a grandfathered felon employee keep working at a bail bond business after it's sold to a relative?

Plain-English summary

A state representative asked the Attorney General to interpret section 1704.302 of the Occupations Code, which forbids a licensed bail bondsman from employing a convicted felon, as applied to a specific situation. The person in the question had worked for years in his father's bail bond business. He was convicted of a felony during that employment. The ban on employing felons (added by Senate Bill 1119 in 2001) took effect September 1, 2001, and his father died later that same month. Afterward, another relative bought the family business. The question was whether the man could keep his job.

The Attorney General concluded he could. Senate Bill 1119 added a grandfather clause, section 17, providing that the new ban "applies only to a person employed by a bonding business after the effective date of this Act." The opinion read that as protecting people who were already lawfully employed before September 1, 2001, while barring the hiring of disqualified people after that date. The opinion stressed that the legislature wrote "employed by a bonding business," not "employed by a license holder," and used the indefinite article, so the protection attaches to the person's job in a particular continuing business rather than to a particular owner or to bail bonding generally.

Because the business stayed the same business after the father's death, with ownership simply passing to another family member, the man's grandfathered status carried over. The opinion noted that Senate Bill 1119 itself recognized a bonding business can continue as the same entity after a license holder dies: section 3 of the bill (amending section 1704.152) excuses certain licensing requirements for a spouse or close relative who applies to operate the business of a license holder who has died. The opinion cautioned that it assumed the facts as given and could not resolve issues that turn on specific factual determinations, which the AG does not make in the opinion process.

Currency note

This opinion was issued in 2002. 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 representative and the Legislature (what the opinion held): The opinion held that section 17 of Senate Bill 1119 worked as a grandfather clause keyed to a particular bonding business, so a worker lawfully employed before the September 1, 2001 effective date kept that protection even after the business changed hands within the family. It read "employed by a bonding business" as deliberate, distinct from "employed by a license holder," and declined to read the protection so narrowly that a change of owner would strip it away.

The grandfathered employee (what the opinion held): The opinion held that the person described, employed in the family bail bond business before the ban and before the original license holder's death, did not forfeit his grandfathered status solely because a relative later bought the business. It added the caveat that this conclusion assumed the facts as presented and assumed no other disqualifying consideration applied.

Common questions

Does Texas bar bail bond businesses from employing felons?
The opinion explained that section 1704.302(c), added by Senate Bill 1119, prohibits a bonding business from employing a person convicted of a felony, or a misdemeanor involving moral turpitude, within the preceding ten years.

Why wasn't this employee covered by the ban?
Because of the grandfather clause. Section 17 of Senate Bill 1119 said the ban "applies only to a person employed by a bonding business after the effective date," which was September 1, 2001. He was already employed before that date, so the ban did not reach his existing job.

Did selling the business to a relative end his protection?
No. The opinion read the protection as attaching to his job in a particular continuing business, not to a particular owner. The business remained the same after ownership passed within the family, so his grandfathered status continued.

Could he take the same protected status to a different bail bond company?
No. The opinion read the clause to protect the job he already held in that specific business. The ban would still prevent him from being hired by any other bonding business.

Background and statutory framework

Section 1704.302(c) of the Occupations Code, added by Senate Bill 1119 of the Seventy-seventh Legislature, provides that a person may not accept payment for employment with a bonding business if, within the preceding ten years, the person has been convicted of a misdemeanor involving moral turpitude or of a felony. Tex. Occ. Code Ann. § 1704.302(c) (Vernon 2002). Section 17 of the same bill limited that change to "a person employed by a bonding business after the effective date of this Act," which the opinion treated as a grandfather clause for those already lawfully employed. Act of May 27, 2001, 77th Leg., R.S., ch. 1262, § 1, sec. 17, 2001 Tex. Gen. Laws 2996, 3001. The opinion declined a broader reading of "employed" that would make section 17 mere surplusage, invoking the presumption that the entire statute is intended to be effective. Tex. Gov't Code Ann. § 311.021(2) (Vernon 1998); Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963).

That a bonding business may continue as the same entity after a license holder's death is confirmed by section 3 of Senate Bill 1119, which amended section 1704.152 of the Occupations Code so that certain licensing requirements do not apply to an individual who applies to operate the bail bond business of a license holder who has died, if that individual is the license holder's spouse or related within the first degree by consanguinity. Tex. Occ. Code Ann. § 1704.152(c)(2) (Vernon 2002). Drawing on the distinction in the statute between "license holder" in subsection (c) and "bonding business" in section 17, the opinion concluded the worker's protection followed the continuing business, not the identity of its owner.

Citations

Statutes:

• Tex. Occ. Code Ann. § 1704.302(c) (Vernon 2002)
• Tex. Occ. Code Ann. § 1704.152(c)(2) (Vernon 2002)
• Tex. Gov't Code Ann. § 311.021(2) (Vernon 1998)
• Act of May 27, 2001, 77th Leg., R.S., ch. 1262, § 1, sec. 17, 2001 Tex. Gen. Laws 2996, 3001 (Senate Bill 1119)

Cases:

• Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0534
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0534.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

July 26, 2002

The Honorable Juan J. Hinojosa Opinion No. JC-0534
Chair, House Committee on
Criminal Jurisprudence Re: Application of section 1704.302, Texas
Texas House of Representatives Occupations Code, to an employee of a family-
P.O. Box 2910 owned bail bond business when the business is
Austin, Texas 78768-2910 purchased by another relative (RQ-0507-JC)

Dear Representative Hinojosa:

You have asked this office for an interpretation of section 1704.302 of the Texas Occupations Code, forbidding the employment of a convicted felon by a licensed bail bondsman, in light of a particular factual situation. This office does not make factual determinations in the opinion process. Accordingly, we will assume the facts as you give them for the purpose of interpreting the statute. We caution, however, that to the extent the legal resolution of any particular situation depends upon specific factual determinations, our advisory opinion cannot resolve it.

Your question concerns a person who has been "employed in the bail bond business for a lengthy period of time."[1] You inform us that during this employment this person was convicted of a felony. As we understand it, he had been employed for some years in his father's bail bond business before the change in the Occupations Code forbidding the employment of felons made by section 1704.302 became effective on September 1, 2001, and before his father's death on September 27, 2001.[2] Since that time, the family business in which he was employed has been purchased by another relative. Your question is whether the "grandfather" clause of the act that amended section 1704.302 permits a person in the situation described to remain employed in this particular bail bond business. We conclude that, given the language of the "grandfather" clause of Senate Bill 1119 of the Seventy-seventh Texas Legislature, which enacted the amendment to section 1704.302 in question, and assuming this is indeed the only relevant consideration, the person may continue in his employment despite the change in ownership of the family business. See Act of May 27, 2001, 77th Leg., R.S., ch. 1262, § 1, sec. 17, 2001 Tex. Gen. Laws 2996, 3001.

Section 1704.302(c) of the Occupations Code was added as part of Senate Bill 1119 by the Seventy-seventh Legislature, and provides:

            (c) 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) (Vernon 2002).

By its terms, then, section 1704.302(c) prohibits the employment by a bail bond business of a person convicted within the past ten years of a felony or misdemeanor involving moral turpitude. Accordingly, a convicted felon would not be employable by such a business were it not for another provision of Senate Bill 1119, section 17, which provides:

            The change in law made by this Act to Subsection (c), Section 1704.302, Occupations Code, applies only to a person employed by a bonding business after the effective date of this Act.

Act of May 27, 2001, 77th Leg., R.S., ch. 1262, § 1, sec. 17, 2001 Tex. Gen. Laws 2996, 3001. The effective date of Senate Bill 1119 was September 1, 2001.

We read section 17 as a "grandfather" clause, permitting those persons whose employment by a bonding business was legal before the enactment of section 1704.302(c) to continue in their employment, but prohibiting the employment, in the sense of hiring, of any person barred by subsection (c) after September 1, 2001. While the word "employed" in section 17 might conceivably be read in a broader sense, to read it so would in effect mean that the section was applicable only after its effective date, a truism and therefore surplusage. We are, however, obliged to prefer a reading of statutory language that does not have such an effect. See TEX. GOV'T CODE ANN. § 311.021(2) (Vernon 1998) (entire statute presumably intended to be effective); Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963).

We note that the relevant language in section 17 is "employed by a bonding business" rather than "employed by a license holder." While there is no relevant legislative history explaining this language, we read it, given the use of the indefinite article, to refer to a particular bonding business rather than to employment in the bail bond industry generally. Further, that a "bonding business" may continue in existence as the same entity after the death of a "license holder" is confirmed by section 3 of Senate Bill 1119, which amends section 1704.152 of the Occupations Code and provides that certain licensing requirements do not apply to "an individual who applies to operate the bail bond business of a license holder who has died" if the individual is that license holder's spouse or is related to the decedent "within the first degree by consanguinity." TEX. OCC. CODE ANN. § 1704.152(c)(2) (Vernon 2002) (emphasis added). As we understand the situation you describe, the bonding business in question remains the same, although ownership of it has changed hands within the same family. Request Letter, supra note 1, at 1.

In light of the distinction in the statutory language between "license holder" in subsection (c) and "bonding business" in section 17, it might be argued that, given that there is now a new license holder, that license holder may not pay the person in question. Such a reading is not consistent with section 17. Section 17 asserts that the stricture of subsection (c) applies only to a person employed after the effective date by a bonding business. Consequently, subsection (c) does not apply to a person employed before that date. The person in question was employed by this continuing family business before the effective date of the statute and before the death of the original license holder. That being the case, pursuant to section 17 of Senate Bill 1119, the change in law which would prevent the person in question from being hired by any other bonding business would not require that he be barred from the job he already has.

                                   SUMMARY

            Section 1704.302(c) of the Texas Occupations Code, as amended by Senate Bill 1119 of the Seventy-seventh Texas Legislature, prohibits the employment of a convicted felon by a bail bonding business unless that person was employed by the business before the section's effective date. A person whose continued employment by a family-owned bail bonding business is permissible despite the amendment of section 1704.302(c) of the Occupations Code does not forfeit that status solely because the business in which he is employed changes hands within the family.

                                          Very truly yours,

                                          JOHN CORNYN
                                          Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Juan J. Hinojosa, Chair, House Committee on Criminal Jurisprudence, Texas House of Representatives, to Honorable John Cornyn, Texas Attorney General (Feb. 4, 2002) (on file with Opinion Committee) [hereinafter Request Letter].

[2] Telephone Conversation with Elva Escalon, District Director, Office of Honorable Juan J. Hinojosa (June 6, 2002).