   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN    CORNYN




                                             October 22,200l



The Honorable Michael A. McDougal                  Opinion No. JC-0428
District Attorney, Ninth Judicial District
301 North Thompson, Suite 106                      Re:    Whether a county bail bond board may
Conroe, Texas 77301-2824                           authorize an alternate to serve on the board when
                                                   the licensed bail bond surety representative    is
                                                   unable to attend its meetings  (RQ-0403-JC)


Dear Mr. McDougal:

        You ask whether a county bail bond board may authorize an alternate licensed bail bond
surety to serve on the board when the licensed bail bond surety representative is unable to attend.
We conclude that a county bail bond board may not permit an alternate licensed bail bond surety to
serve on the board.

         Chapter 1704 of the Occupations Code provides for the licensing and regulation of bail
bond sureties by a county bail bond board. See TEX.OCC. CODEANN. 0 1704.001(2) (Vernon 2001)
(defining “bail bond surety” as “a person who executes a bail bond as a surety or cosurety for another
person for compensation”).   It creates a county bail bond board in each county with a population of
110,000 or more, see id. 0 1704.05 1, and permits the creation of boards in less populous counties,
see id. $9 1704.002(2), .052. Section 1704.101 vests a county bail bond board with various powers,
including the authority to adopt rules necessary to implement chapter 1704. See id. 9 1704.101. A
county bail bond board is required to meet at least once a month. See id. § 1704.055. Four members
of the board constitute a quorum. See id. 5 1704.056.

         Under section 1704.053 of the Occupations Code, a county bail bond board consists of
various local officials, some of whom are expressly authorized to be represented by a designee. See,
e.g., id. 8 1704.053( 1) ( county sheriff or a designee from his office), (3) (county judge, member of
the commissioners court, or a designee approved by the commissioners court), (5) (district attorney
or assistant-district-attorney   designee), (8) (district clerk or his designee). Also included on the
board is “a licensed bail bond surety in the county elected by other licensed bail bond sureties in the
county.” Id. tj 1704.053(6).

        You explain that the licensed sureties in Montgomery County “want to elect an ‘alternate’
surety representative to sit on the Board in the event their representative is unable to attend a Board
The Honorable Michael A. McDougal           - Page 2      (JC-0428)




meeting.“’ You ask whether this is permitted by section 1704.053 or whether a rule authorizing this
practice is within a board’s rule-making authority under section 1704.101 .2

         This office has concluded that a member of a commission or other governmental body may
not delegate his or her non-ministerial      duties, including the duty to participate in the body’s
deliberations and decision-making.       See Tex. Att’y Gen. Op. No. JM-903 (1988) (Texas Racing
Commission members not authorized to send substitutes); Tex. Att’y Gen. LO-90-09 1 (metropolitan
planning commission does not have authority to provide for alternate members). Furthermore, the
cornmission or governmental body itself may not allow a member to delegate such duties absent
express statutory authority. See Tex. Att’y Gen. Op. No. JM-903 (1988) (Texas Racing Commission
not authorized to allow substitutes for members); Tex. Att’y Gen. LO-94-028 (school board member
does not have authority to delegate power to vote at school board meeting). In Attorney General
Opinion JM-903, for example, this office concluded that members of the Texas Racing Commission
were not authorized to send substitutes to act for them nor was the commission authorized to allow
substitutes to “sit for absent members and speak but not vote.” Tex. Att’y Gen. Op. No. JM-903
(1988) at 5. “In the absence of express statutory authority, a commission member may not delegate
his responsibility to deliberate . . . . The commission may not authorize such delegation by rule.”
Id. By contrast, the Comptroller’s chief clerk was expressly authorized by statute to sit as a member
of the commission in the Comptroller’s absence. See id. at 3-4.

         Chapter 1704 does not authorize the election of an alternate licensed bail bond surety
representative to serve on a county bail bond board. In contrast to other members of the board, the
surety member is not authorized to be represented by a designee. See, e.g., TEX. OCC. CODE ANN.
9 1704.053(l) (county sheriff or a designee from his office), (3) (county judge, member of the
commissioners court, or a designee approved by the commissioners court), (5) (district attorney or
assistant-district-attorney designee), (8) (district clerk or his designee) (Vernon 2001). Although
section 1704.101 vests a county bail bond board with rule-making authority, a governmental entity
may not authorize an alternate or substitute member by rule without express statutory authority. See
Tex. Att’y Gen. Op. No. JM-903 (1988). No provision in chapter 1704 authorizes a county bail bond
board to provide for an alternate licensed bail bond surety member. Accordingly, we conclude that
a county bail bond board may not permit an alternate licensed bail bond surety to serve on the board
when the licensed bail bond surety representative is’unable to attend.




        ‘Letter from Honorable Michael A. McDougal, District Attorney, Ninth Judicial   District,   to Honorable
John Comyn, Texas Attorney General (July 13,200l) (on file with Opinion Committee).

        2Seeid.
The Honorable Michael A. McDougal       - Page 3     (JC-0428)




                                       SUMMARY

                       A county bail bond board may not permit an alternate licensed
               bail bond surety to serve on the board when the licensed bail bond
               surety representative is unable to attend.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
