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TX JM-901 May 12, 1988

Could a Texas county bail bond board regulate lawyers who posted bonds for their own criminal-defense clients or regulate the county pretrial-services agency?

Short answer: No. The Harris County Bail Bond Board could not require a lawyer to obtain a bail-bond license when the lawyer executed a bond for a criminal defendant the lawyer actually represented, although the statute's prohibited-practice rules and the sheriff's enforcement role still applied. The board also could not regulate the county pretrial-services agency when it performed the functions of a personal bond office rather than a commercial bondsman.

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This page answers the general question as of 1988. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Currency note: this opinion is from 1988
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.
Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. Statutes can be amended; verify current law before relying on anything here. Consult a licensed attorney for advice on your specific situation.
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Texas AG Opinion JM-901: Bail-Bond Board Authority Over Lawyers and Pretrial Services

Plain-English summary

Harris County Attorney Mike Driscoll asked whether the county bail bond board could regulate two groups involved in obtaining a defendant's release: lawyers who posted bonds for clients they actually represented and the Harris County Pre-trial Services Agency.

Article 2372p-3 generally required people acting as bondsmen in covered counties to be licensed. Section 3(e), however, allowed a Texas lawyer to execute a bail bond or act as surety for a person the lawyer actually represented in a criminal case without obtaining that license. The attorney remained subject to practices that could support license revocation, with violations determined by the sheriff. An officer taking a bond also retained authority under article 17.11 of the Code of Criminal Procedure to require evidence that the security was sufficient.

The Attorney General concluded that the bail bond board could not add to its statutory powers by rule. It therefore could not force a lawyer within section 3(e)'s exception to comply with the act's licensing requirements.

The result was also no for the pretrial-services agency. That agency performed the functions of a personal bond office: gathering and reviewing information about an accused and reporting to the court on whether the person was likely to comply with personal-bond conditions. It did not perform the function of a bail bondsman, so the board lacked authority to regulate it.

Currency note

This opinion was issued in 1988. 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.

Common questions

Did a lawyer need a bail-bond license to post a bond for the lawyer's own client?

No. Under the law addressed in the opinion, a Texas lawyer could execute a bond or act as surety for a criminal defendant the lawyer actually represented without obtaining a license under article 2372p-3.

Was a lawyer completely outside the bail-bond statute?

No. The attorney exception did not permit practices that formed a basis for license revocation, and the statute assigned the sheriff to determine violations. A lawyer paid to execute the bond also could not escape liability merely by saying the lawyer was not hired to represent the principal on the merits.

Could the bail bond board impose its own rules on exempt lawyers?

No. The opinion said an agency could not use rules to extend or add to powers listed in a statute. The board therefore could not impose the act's applicant requirements on an attorney who fit the exception.

Could the officer taking the bond examine the security?

Yes. Article 17.11 of the Code of Criminal Procedure required the officer taking a bail bond to require evidence that the offered security was sufficient. The opinion noted that Minton v. Frank applied that provision to bonds executed by attorneys.

Could the bail bond board regulate the county pretrial-services agency?

No. The agency acted as a personal bond office, not as a bail bondsman. Its role was to gather and report information to the court for a personal-bond decision.

Background and statutory framework

Section 3 of article 2372p-3 applied the bail-bond regulatory scheme in counties with more than 110,000 residents and in smaller counties that created a board. In a county with a board, a person generally could act as a bondsman only if licensed under the act or licensed to practice law and within section 3(e)'s exception.

Minton v. Frank, 545 S.W.2d 442 (Tex. 1976), held that Texas lawyers were exempt from obtaining a license and from the applicant requirements in section 6 when posting bonds for people they actually represented. The opinion emphasized that the statute still prohibited those lawyers from engaging in conduct that would support license revocation and gave the sheriff the enforcement role. Article 17.11 of the Code of Criminal Procedure separately required the officer taking a bond to obtain evidence of sufficient security.

The pretrial-services question involved article 2372p-2. A personal bond office gathered and reviewed information bearing on whether an accused would comply with personal-bond conditions and reported its findings to the court. Article 17.03 of the Code of Criminal Procedure allowed the court, in its discretion, to release a defendant on a personal bond without sureties or other security. Because that work was not the work of a bail bondsman, the county board's licensing and regulatory authority did not reach the agency.

Citations

Statutory authority:

  • V.T.C.S. article 2372p-3, sections 3 and 6
  • Code of Criminal Procedure articles 17.11 and 17.03
  • V.T.C.S. article 2372p-2

Case:

  • Minton v. Frank, 545 S.W.2d 442 (Tex. 1976)

Prior Attorney General materials referenced: JM-251 (1984) and JM-760 (1987).

Source

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

                           May 12, 1988




 Honorable Mike Driscoll                  Opinion No.   JM-901
 Harris County Attorney
 1001 Preston, Suite 634                  Re:    Whether the Harris
 Houston, Texas 77002                     County Bail Bond Board is
                                          authorized  to regulate
                                          licensed attorneys    who
                                          execute bail bonds for
                                          criminal defendants
                                          (RQ-1385)

 Dear Mr. Driscoll:

      You ask:

         Whether the Harris County Bail Bond Board is
         authorized to regulate licensed attorneys who
         actually represent criminal defendants and/or
         the Harris County Pre-trial Services Agency
         in connection with their respective roles in
         obtaining bail bonds for criminal defendants.

      Section 3 of article 2372p-3, V.T.C.S., provides:

         The provisions of this Act apply only to the
         execution of bail bonds in counties having   a
         population of more than 110,000 according   to
         the last federal census or in counties      of
         less than 110,000 where a board has been
         created. The creation of the board is within
         the discretion of a majority of the officers
         of the county who would be members of, or who
         would designate members   of, the board as
         provided under    Subsection   (b)  of    this
         section.

            (a) In a county that has a board,              no
         person may act as a bondsman except:

            (1) persons licensed under this Act, and




                                 p. 4441

Honorable Mike Driscoll - Page 2 (JM-901)

                                                             -.


       (2) persons licensed to practice  law in
   this state who meet the requirements      set
   forth in Subsection (e) of Section 3 of this
   Act.

       (b) No individual   is   eligible  for
    license under this Act unless the individual:

       (1) is a resident of this         state    and    a
    citizen of the United States;

       (2) is at least 18 years of age;

       (3) possesses     sufficient     financial
    resources to provide  indemnity against  loss
    on such obligations  as he may undertake   as
    required by Section 6 of this Article.

       (c) No person shall be eligible    for a
    license under this     Act, 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.                               ?,

       (d) No corporation      is    eligible    to     be
    licensed unless:

        (1) it is chartered  or       admitted    to    do
    business in this state: and

        (2) it is qualified  to write fidelity,
    guaranty and surety bonds under the Texas
    Insurance Code, as amended.

        (e) Persons licensed to practice   law in
    this state may execute bail bonds or act as
    sureties for persons they actuallv   represent
    in criminal cases without being licensed
    under this Act, but they are prohibited   from
    engaging in the practices made the basis   for
    revocation of license under this Act and if
    found by the sheriff to have violated      any
    term of this Act. may not qualify thereafter
    under the exception vrovided in this subsec-
    tion unless and until they come into compli-
    ance with those practices made the basis of
    revocation under this Act.    Notwithstanding
    any other provision of this subsection,     no
    person licensed to practice    law shall be              ?




                         p. 4442


    Honorable Mike Driscoll - Page 3 (JM-901)




            relieved of liability on a bail bond he has
            executed for the sole reason that he has not
P
            been employed to represent the principal   on
            the merits of the case if he has been paid a
            fee for the execution of the bail bond.
            (Emphasis added.)

         Persons licensed to practice   law in this state      are
    exempt from obtaining a license and are not required        to
    comply with the requirements  imposed upon an applicant    set
    forth in section 6 of article 2372p-3. Minton v. Frank,    545
    S.W.2d 442 (Tex. 1976).   Licensed attorneys are subject    to
    the act insofar as they are prohibited from engaging        in
    practices made the basis for revocation of a license.      The
    act expressly  provides that this is a matter       for    the
    determination of the sheriff.

         Any officer "taking a bail bond shall require evidence
    of the sufficiency of the security offered." Article  17.11
    Code of Criminal  Procedure.  In Minton v. Frank the court
    noted that bonds executed by attorneys are subject to this
    provision.

         An agency may not by its own rules extend or add to the
    powers listed in a statute. Attorney General Opinion JM-251
    (1984). Thus, the Harris County Bail Bond Board does not
    have the authority   to require attorneys   to comply with
    article 2372p-3 when the attorney has executed a bail bond
    or acted as a surety for a person whom the attorney      is
    actually representing in a criminal case.

         The information you furnish reflects that the Harris
    County Pre-trial Services Agency performs the function of
    the personal bond office authorized    by article 2372p-2,
    V.T.C.S. Article   2372p-2 provides that the duties    of a
    personal bond office are to gather and review    information
    about an accused that may have a bearing on whether he will
    comply with the conditions of a personal bond and report its
    findings to the court before which the case is pending.
    Article 17.03 of the Code of Criminal Procedure   authorizes
    the court before which the case is pending,         in   its
    discretion, to release the defendant on his personal    bond
    without sureties or other security.    See Attorney  General
    Opinion JM-760 (1987).

         An agency that performs the function of the personal
    bond office, here the Harris County Pre-trial     Services
    Agency, does not perform the function of a bail bondsman.
    The County Bail Bond Board, charged with certain statutory
  • responsibilities in the licensing and regulation of bail
                                 p. 4443
    

Honorable Mike Driscoll - Page 4 (JM-901)

bondsmen under article 2372p-3, is not authorized to
regulate an agency performing the functions of a personal
bond office.

                   SUMMARY

       The Harris County Bail Bond Board does
    not have the authority to require attorneys
    to comply with article    2372p-3, V.T.C.S.,
    when the attorney has executed a bail bond or
    acted as a surety for a person the attorney
    is actually representing in a criminal  case.
    Nor is such board authorized to regulate   an
    agency in gathering, reviewing and reporting
    information  to a court that may have a
    bearing on whether an accused is entitled  to
    a personal bond     under article    2372p-2,
    V.T.C.S.




                                  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

Prepared by Tom G. Davis
Assistant Attorney General

                          p. 4444

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