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                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                December 8, 2011



The Honorable Joel D. Littlefield                         Opinion No. GA-0895
Hunt County Attorney
Post Office Box 1097                                      Re: Authority of a county bail bond board to enact
Greenville, Texas 75403-1097                              a rule that restricts a bail bond licensee from
                                                          employing a person who is currently on probation
                                                          or parole, or who is the defendant in a pending
                                                          criminal case (RQ-0976-GA)

Dear Mr. Littlefield:

       You ask about the authority of a county bail bond board to enact a rule that restricts a bail
bond licensee from employing an individual who is currently on probation or parole, or who is the
defendant in a pending criminal case.! You specifically inquire about Rule 9.1 (g), adopted by the
Hunt County Bail Bond Board (the "Board"). See Request Letter at 2.2

        Rule 9.1 defines "employee" as "any person hired by a Licensed Surety who performs"
certain duties. Board Rule 9.1. The rule further provides that the employee

                         (f) must not have been convicted of a misdemeanor
                  involving moral turpitude or a felony in the past ten (10) years and

                        (g) is not currently on probation, parole or has a
                  misdemeanor or felony case pending.

[d. Subsection (f) of the Board's rule closely tracks the language of a 2001 statute:

                        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


         I Letter from Honorable Joel D. Littlefield, Hunt County Attorney, to Honorable Greg Abbott, Attorney General
of Texas (June 13, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

        2See id. at Exhibit A (Rules and Regulations of the Hunt County Bail Bond Board at 15 (Sept. 16,2010»
("Board Rule 9.1 ").
The Honorable Joel D. Littlefield - Page 2               (GA-0895)




                years, the person has been convicted of a misdemeanor involving
                moral turpitude or of a felony.

TEX. Oee. CODE ANN. § 1704.302(c) (West 2004).3 Subsection (g) of the Board's rule, however,
imposes additional requirements that exceed the prohibitions established by the Legislature when
it enacted section 1704.302, specifically that the Board would prohibit a licensee from employing
an individual who is currently on probation or parole, or who is the subject of a pending felony or
misdemeanor prosecution. See Board Rule 9.1 (g). You suggest that, by virtue of the broad authority
conferred upon a bail bond board, the promulgation of subsection (g) is within the power of the
Board in question. 4

       Pursuant to chapter 1704 of the Occupations Code, a bail bond board is authorized, in
relevant part, to

                       (1) exercise powers incidental or necessary to the
                administration of this chapter;



                       (3) supervise and regulate each phase of the bonding
                business in the county;

                         (4) adopt and post rules necessary to implement this chapter;



TEX. Oee. CODE ANN. § 1704.101 (West 2004). Your brief relies on an appellate decision from
1989 that declared that this "broad rule-making power impliedly authorizes the [Dallas County Bail
Bond] Board to supervise and regulate employees of bondsmen to the extent that such employees
perform meaningful duties in the bonding business." Dallas Cnty. Bail Bond Bd. v. Stein, 771
S.W.2d 577, 580 (Tex. App.-Dallas 1989, writ denied); see County Attorney's Brief at 1-2.
However, the Stein opinion was issued before the Legislature had "expressly set forth eligibility
requirements for employees of licensees." Ste in, 771 S. W .2d at 580. As the opinion noted, however,
"an agency's rules must be consistent with the laws of this state." [d. Moreover, the Texas Supreme
Court has observed that, "[i]n deciding whether a particular administrative agency has exceeded its
rule-making powers, the determinative factor is whether the rule's provisions are 'in harmony with
the general objectives of the Act involved.'" Pruettv. Harris Cnty. Bail Bond Bd. , 249 S.W.3d447,
452 (Tex. 2008) (quoting Gerstv. Oak CliffSavs. &LoanAss'n., 432 S.W.2d 702,706 (Tex. 1968)).



       3Act of May 27,2001, 77th Leg., R.S., ch. 1262, § 12,2001 Tex. Gen. Laws 2996, 3000.

       4See Request Letter at Exhibit B (Brief from Joel D. Littlefield at 1-2) ("County Attorney's Brief').
The Honorable Joel D. Littlefield - Page 3                  (GA-0895)




         As noted above, in 20.0 1 the Legislature placed specific restrictions on a bail bond business's
employees. See TEX. OCC. CODE ANN. § 1704.302(c) (West 2004).5 Under subsection (g) of Rule
9.1, the Hunt County Bail Bond Board imposes additional restrictions beyond those prescribed by
the Legislature by denying employment to any person who is currently on probation or parole
without regard to whether the individual was convicted within the past ten years. See Board Rule
9.1 (g). The rule further denies employment to any person who is the subject of a pending felony
or misdemeanor. See id. In 1984, an appellate court considered whether a bail bond board was
permi tted to promulgate a rule that required a licensee to furnish a $100,000 securi ty deposit in order
to do business in the county. See Tex. Fire & Cas. Co. v. Harris Cnty. Bail Bond Bd., 684 S.W.2d
177 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). The court said that, because the
relevant statute imposes a security deposit of not less than $5,000, but is otherwise determined by
the applicant, the local rule establishing a flat $100,000 deposit "is a minimum in direct conflict
with the statutory authority." Tex. Fire & Cas. Co., 684 S.W.2d at 179. "The local rules thus
impermissibly impose additional and conflicting burdens on bail bond applicants and consequently
must fail." [d.; see also Bexar Cnty. Bail Bond Bd. v. Deckard, 604 S.W.2d 214,217 (Tex. Civ.
App.-S an Antonio 1980, no writ) ("The function of the bail bond board is to administer the statute,
not to amend it, at least in the absence of statutory language indicating a legislative intent that the
board should have the power to add to the qualifications enumerated by the [L]egislature.,,).6

       Like the rules established by the bail bond boards in the Harris and Bexar County cases,
Board Rule 9.1 (g) prescrib'es requirements for employees of bail bond licensees that "impermissibly
impose additional and conflicting burdens" on those licensees and their employees. Tex. Fire &
Cas. Co., 684 S.W.2d at 179. As a result, we conclude that Rule 9.1(g) exceeds the authority of the
Board.




         5Act of May 27,2001, 77th Leg., R.S., ch. 1262, § 12,2001 Tex. Gen. Laws 2996, 3000.

          (,The Texas Supreme Court's opinion in Pruett is not to the contrary. In that case, a county bail bond board
suspended the license of a bail bondsman for violating two rules governing solicitation. Pruett, 249 S.W.3d at 451. The
rules prohibited a licensee from soliciting within twenty-four hours after the execution of an arrest warrant and during
certain "non-business hours. " Id. at 451 n.3. Although the court emphasized that the board's "explicit power is
unambiguously broad" and noted that "no part of the Occupations Code ... would appear to single out solicitation as
an impermissible area of agency rule-making," the court also observed that "courts have held bail bond boards may not
add to licensing requirements in light of the extremely detailed licensing regime that the Legislature established." Id.
at 453-54. The court distinguished the solicitation rules from the kind of additional licensing requirements at issue in
Texas Fire & Casualty Co. by noting that "a board's attempt to alter or add to licensing requirements specified in the
Bail Bond Act is not the same as a board's regulation of bondsmen once they are licensed." [d. at 454. In the situation
you pose, the Hunt County Bail Bond Board has attempted to impose on both bail bondsmen and their employees
burdens that are additional to and in conflict with those established by the Legislature. Compare Board Rule 9.1 (g), with
TEX. Dcc. CODE ANN. § 1704.302(c) (West 2004).
The Honorable Joel D. Littlefield - Page 4       (GA-0895)



                                      SUMMARY

                       A rule of the Hunt County Bail Bond Board that restricts a
               bail bond licensee from employing an individual who is currently on
               probation or parole, or is the defendant in a pending criminal case,
               impermissibly imposes burdens on those employees that are
               additional to and in conflict with section 1704.302 of the Texas
               Occupations Code. The rule thus exceeds the authority of the Board.

                                             Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
