Can a Texas county bail bond board stop bail bond companies from hiring people with felony convictions?

Texas AG Opinion JM-1012: Can a County Bail Bond Board Ban Bonding Companies From Hiring Felons?

Plain-English summary

The Lubbock County Bail Bond Board wanted to tighten up who works in the local bail bond business. It proposed a rule that would stop bonding companies from employing anyone who is a felon or has been convicted of a crime involving moral turpitude. The question came up after a bonding company hired an employee with a felony conviction (an employee who was not authorized to execute bonds himself). The Lubbock County District Attorney asked the Attorney General whether the board actually had the power to impose that hiring ban.

The Attorney General said no. The reasoning is a familiar one for licensing boards: a board can only do what its statute lets it do, and this statute did not let the board reach that far.

The bail bond statute, article 2372p-3, spells out who can and cannot hold a bondsman's license. A felony conviction (or a misdemeanor involving moral turpitude) can make a person ineligible for a license and can be a ground for suspending one. But notice what those provisions are about: the license holder. The statute never says a licensed bondsman commits a violation, or risks losing his license, by employing someone else who has a conviction. The list of things that can get a license denied or suspended, and the separate list of things that are actual criminal violations for a bondsman, simply do not include hiring a convicted felon as a non-bond-executing employee.

The controlling case was Bexar County Bail Bond Bd. v. Deckard, where a court struck down a board's attempt to add its own automatic-suspension rule. The court held that a board's rule-making power runs only to the making and setting of bail bonds in the county, and that a board cannot bolt extra qualifications, conditions, or restrictions onto the statute. When the board there tried to add a new ground for suspension beyond those the Legislature listed, the court said flatly it could not do that. The Attorney General applied the same logic here. There was one case pointing the other way, Austin v. Harris County Bail Bond Bd., which let a board look at an applicant's own past record of complying with the act in deciding whether he would comply going forward. But that was about the applicant's own conduct and the statutory requirement that an applicant promise to comply, not about a blanket rule dictating whom a bondsman may employ. So it did not save the Lubbock board's proposed hiring ban.

Currency note

This opinion was issued in 1989. 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.

Bail bond regulation in Texas has been recodified since 1989. The old article 2372p-3, V.T.C.S., framework was moved into the Occupations Code chapter on bail bond sureties, and the licensing qualifications, grounds for suspension or revocation, and county bail bond board rule-making authority have been amended over the years, including provisions addressing the criminal history of a license holder's employees. A bonding company or a county bail bond board dealing with an employee-hiring question today should read the current Occupations Code and board rules rather than rely on the article and section numbers here. The underlying principle (a board cannot impose licensing restrictions the statute does not authorize) remains good law.

Who this opinion affected (as of 1989)

County bail bond boards: The opinion told them their rule-making power did not reach a blanket ban on bonding companies employing convicted felons, because that ground is not in the statute.

Bail bond companies: The opinion confirmed they could employ a person with a felony conviction (one not authorized to execute bonds) without that alone jeopardizing the company's license.

People with criminal records seeking bail bond industry jobs: The opinion clarified that a conviction did not automatically bar them from non-bond-executing employment with a bonding company under state law.

Common questions

Can a county bail bond board stop bail bond companies from hiring felons?
No. In this opinion the Attorney General concluded a board may not prohibit a licensed bondsman from employing persons (not authorized to execute bonds) who have felony or moral-turpitude convictions, because that is not a statutory ground for denying or suspending a license.

Why can't the board just make that rule?
Because under Bexar County Bail Bond Bd. v. Deckard a board's rule-making power is limited to the making and setting of bail bonds in the county, and a board cannot add licensing qualifications, conditions, or restrictions the statute does not contain.

Does a felony conviction still matter under the bail bond statute?
Yes, but for the license holder. A felony or moral-turpitude conviction can make a person ineligible for a bondsman's license and can be a ground for suspending one; the statute just does not make employing such a person a violation.

Didn't a court let a board consider an applicant's criminal or compliance history?
The court in Austin v. Harris County Bail Bond Bd. let a board consider an applicant's own past compliance with the act in judging future compliance. That concerned the applicant's own record, not a rule controlling whom a bondsman may employ.

Background and statutory framework

Section 3 of article 2372p-3, V.T.C.S., provides that no person is eligible for a license as a bail bondsman who, after the act's effective date, commits an offense for which he is finally convicted, that offense being a felony or a misdemeanor involving moral turpitude. (Attorney General Opinion JM-75 (1983) noted the "committed after the effective date of this Act" language refers to August 27, 1973, the date of the original act, not August 31, 1981, the date of the amendatory act.) Section 9(b) allows a county bail bond board, after notice and hearing, to suspend a license for enumerated reasons, one of which is a final conviction of a misdemeanor involving moral turpitude or a felony committed after the act's effective date. Section 15 lists violations by a licensed bondsman that may result in Class B and Class C misdemeanor convictions. Employing a person convicted of a felony or crime of moral turpitude is not listed among those violations, and the employment of a convicted felon (not authorized to execute bonds) by a license holder is not a statutory basis for denying or suspending a license. (The District Attorney noted the employee at issue was without authority to execute bonds; Attorney General Opinion MW-507 (1982) stated a licensed corporate surety may have authorized agents sign bonds on its behalf, but an individual surety may not under article 17.08 of the Code of Criminal Procedure.)

In Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.-San Antonio 1980, no writ), the court held that a bail bond board "may not impose additional burdens, conditions or restrictions in excess of or inconsistent with statutory provisions." The court explained that the rule-making power delegated to the board under the statute is merely the power over the making and setting of bail bonds in the county; there is no language granting power to make rules about the qualifications applicants must meet, and no such power may be implied. Because the grounds for revocation or suspension are listed in section 9(b), the board's attempt to adopt an automatic-suspension rule adding another ground was something it could not do.

The Attorney General addressed Austin v. Harris County Bail Bond Bd., 756 S.W.2d 65 (Tex. App.-Houston [1st Dist.] 1988, writ denied), which the District Attorney suggested might control. There the board had denied a license application, and the applicant argued the board improperly used a section 9 suspension basis rather than a section 3 licensing qualification. The court rejected that argument, noting that one requirement for a license under section 3(c) is a declaration that the applicant will comply with the act and the board's rules, and reasoning that an applicant's past behavior in not complying with the act may be considered in determining whether he will comply in the future; reviewing an applicant's own record as a licensed bondsman did not impose a condition inconsistent with the act under Deckard. Under Deckard's holding, the Attorney General concluded, the board's rule-making power is limited to the making and setting of bail bonds in the county and does not authorize imposing qualifications on a bondsman's operation that the statute does not enumerate. The board therefore may not prohibit a licensed bondsman from employing persons (not authorized to execute bonds) who have been convicted of felonies and crimes of moral turpitude.

Citations

Statutory authority:

• Tex. Rev. Civ. Stat. art. 2372p-3, § 3 (ineligibility for a bondsman's license on felony/moral-turpitude conviction); § 3(c) (applicant's declaration to comply with the act and board rules); § 9(b) (grounds for suspension after notice and hearing); § 15 (violations resulting in misdemeanor convictions)
• Code of Criminal Procedure art. 17.08 (authorized agents signing bonds)

Cases:

• Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.-San Antonio 1980, no writ) (board rule-making limited to making and setting bail bonds; cannot add suspension grounds)
• Austin v. Harris County Bail Bond Bd., 756 S.W.2d 65 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (board may consider applicant's own past compliance record)

Related opinions:

• Attorney General Opinions JM-75 (1983), MW-507 (1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1012
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1012.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Garbled case names have been restored to their verified forms.

January 31, 1989

Honorable Travis S. Ware
Criminal District Attorney
P.O. Box 10536
Lubbock, Texas 79408

Opinion No. JM-1012

Re: Whether the Lubbock County Bail Bond Board may prohibit the employment by bail bond companies of persons convicted of felonies and crimes of moral turpitude (RQ-1609)

Dear Mr. Ware:

You ask whether the Lubbock County Bail Bond Board may prohibit the employment by bail bond companies of persons who have been convicted of felonies and crimes of moral turpitude. You state that the Lubbock County Bail Bond Board has proposed "to restrict the local bonding companies from employing those individuals who are felons or have been convicted of crimes involving moral turpitude."

Section 3 of article 2372p-3, V.T.C.S., provides that no person is eligible for a license as a bail bondsman, "who after the effective date of this Act, commits an offense for which he is finally convicted, such offense being a felony or misdemeanor involving moral turpitude."[1]

Section 9(b) of article 2372p-3 provides that a county bail bond board may, after notice and hearing, suspend a license for any one of twelve reasons enumerated in the statute. One of the bases for suspension is when the holder of a license is found to have a "final conviction . . . of a misdemeanor involving moral turpitude or a felony committed after the effective date of this Act."

Section 15 of article 2372p-3 sets forth a number of violations by a licensed bondsman that may result in conviction of Class B and Class C misdemeanors. The employment of a person convicted of a felony or crime of moral turpitude by a bondsman is not listed as one of the violations that may result in a criminal conviction.

You advise that your question has arisen as the result of a bail bond company's hiring of an employee who has been convicted of a felony. You state that the employee is without authority to execute bonds.[2]

The employment of a convicted felon (not authorized to execute bonds) by a holder of a bail bond license is not a statutory basis for denying or suspending a license by a county bail bond board.

In Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no writ), the court held that the Bexar County Bail Bond Board "may not impose additional burdens, conditions or restrictions in excess of or inconsistent with statutory provisions." In Deckard the court stated:

The rule-making power delegated to the board under the statute is merely the power [over the making and] setting of bail bonds in the county. There is no language granting power to make rules relating to the qualifications which must be met by applicants for licenses. A reasonable interpretation of the statutory language supports the conclusion that no such power may be implied.

. . . .

[The board is without power to add to the statutory grounds, at] least in the absence of statutory language indicating a legislative intent that the board should have the power to add to the [grounds].

The grounds for revocation or suspension of a license are listed in section 9(b) of the statute.

. . . .

The statute, in section 9(b), lists eight grounds for the suspension of the license of a bondsman. The automatic suspension rule adopted by the board attempts to add a ninth ground. This it cannot do. (Emphasis added.)

Id. at 217.

You suggest that Austin v. Harris County Bail Bond Bd., 756 S.W.2d 65 (Tex. App. - Houston [1st Dist.] 1988, writ denied) may control this issue. In that case the appellant urged that the county bail bond board denied his application for a license on a basis set forth for suspending a license under section 9 of article 2372p-3 rather than for the lack of a statutory qualification for approving his application. The court rejected appellant's contention noting that one of the requirements for obtaining a license under section 3(c) is "a declaration that the applicant will comply with the Act and the rules prescribed by the Board." The court reasoned that applicant's past behavior in not complying with the act may be considered in determining whether he will comply in the future. The court held that the authority of the board to review an applicant's record as a licensed bondsman does not impose a condition or burden inconsistent with the act so as to be violative of the rule in Deckard.

Under the holding in Deckard, the rule-making power of the board is limited to the making and setting of bail bonds in the county and the board is not authorized to impose qualifications upon the operation of a bondsman that are not enumerated by the statute.

SUMMARY

The Lubbock County Bail Bond Board may not prohibit the employment by a licensed bail bondsman of persons (not authorized to execute bonds) who have been convicted of felonies and crimes of moral turpitude.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Footnotes

[1] In Attorney General Opinion JM-75 (1983) it was stated that the provisions relating to offenses "committed after the effective date of this Act" in article 2372p-3 refers to August 27, 1973, the date of the original act, instead of August 31, 1981, the date of the amendatory act.

[2] In Attorney General Opinion MW-507 (1982) it was stated that a licensed corporate surety may have authorized agents to sign bonds in its behalf but an individual surety may not do so under article 17.08 of the Code of Criminal Procedure.