,-
                     THE   ATTOKNEY           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 tom 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




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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 vractice   law in
        this state mav execute bail bonds or act as
        sureties for versons thev actuallv   revresent
        in criminal cases without beina licensed
        under this Act, but thev are vrohibited   from
        enaaaina in the vractices made the basis   for
        revocation of license under this Act and if
        found bv the sheriff to have violated      any
        term of this Act. mav not cualifv thereafter
        under the excevtion vrovided in this subsec-
        tion unless and until thev come into comvli-
        ante with those vractices 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 (m-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.Zd 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 then 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




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