                              ATTORNEYGENERAL                    OF    TEXAS
                                          GREG        ABBOTT




                                              January 24,2007



The Honorable John W. Segrest                             Opinion No. GA-0502
McLennan County Criminal District Attorney
219 North 6th Street, Suite 200                           Re: Whether section 1704.304(c) of the
Waco, Texas 76701                                         Occupations Code, which prohibits solicitation
                                                          of bail bond customers in a jail, extends to
                                                          advertising or licensee information displayed on
                                                          a licensee’s vehicle when the vehicle is located
                                                          in a county jail parking lot (RQ-0507-GA)

Dear Mr. Segrest:

         You ask several questions about a bail bond licensee’s display of advertising on his vehicle
when that vehicle is located in the county jail parking lot.’ You first inquire whether that practice
is prohibited by section 1704.304(c) of the Occupations Code. See Request Letter, supra note 1, at
2.

         Chapter 1704 of the Occupations Code provides for the regulation of bail bond sureties.
Section 1704.051 declares that a bail bond “board is created in each county with a population of
110,000 or more.” TEX. OCC. CODE ANN. 5 1704.051 (Vernon 2004). McLemran County had a
population of greater than i 10,000 in the last decennial census, and thus is a bail bond.board county.*
Section 1704.304 provides that “[al~bail bond surety or an agent of a bail bond surety may not solicit
bonding business in a police station, jail, prison, detention facility, or other place of detainment for
persons in the custody of law enforcement.”         Id. 5 1704.304(c) (emphasis added).. Your first
question is whether this statute prohibits “advertising or licensee information from being displayed
on a licensee’s vehicle in a jail parking lot.” Request Letter, supra note 1, at 2.

         Your inquiry raises the issue of whether a jail parking lot is included within the meaning of
“jail” for purposes of section 1704.304(c). As you indicate, however, resolution of that issue is not
necessary to resolve your particular fact situation. Id. at 3. The primary issue before us is whether


          ‘Letter from Honorable John W. Segrest, McLennan County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (July 11, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].

          ?ke U.S. CENSUS BUREAU, 2000 CENSUS OF POPULATION, STATE & COUNTY QUICKFACTS,mailable at
h~p://quickfacts.census.gov/qfdistates/48/48309.html (McLennan County population: 213,5 17) (last visited Nov. 1,
2006).
The Honorable John W. Segrest - Page 2                       (GA-0502)




a bail bond licensee’s display of advertising on his vehicle constitutes                 “solicitation,” the specific
activity prohibited by section 1704.304(c).

         “Advertising” is not tantamount to “solicit&ion.” Although no Texas case has squarely
confronted this issue, the courts of a number of other states have done so. The New York Court of
Appeals held that, for purposes of the statutes governing attorney conduct, “‘solicit’ means to move
to action, to endeavor to obtain by asking, and implies personal petition to a particular individual to
do a particular thing       while ‘advertising’ is the calling of information to the attention of the
public.” Kofler v. JointBarAss’n, 412N.E.2d 927,931 (N.Y. 1980), cert. denied, 450 U.S. 1026
(1981) (citing BLACK’S LAW DICTIONARY 124849 (5th ed. 1979)). Likewise, the Arkansas
Supreme Court distinguished the two terms in stating that “soliciting is a well-known and defined
action, and advertising is an equally well-known and defined action, and they are not identical.”
Carter v. State, 98 S.W. 704,704 (Ark. 1906); see also Smith, Waters, Kuehn, Burnett &Hughes,
Ltd. v. Burnett, 548 N.E.2d 1331, 1336 (Ill. App. 3d 1989) (“Solicitation of legal services, as
opposed to advertising, connotes a private communication directed at aperson or category ofpersons
known by an attorney to have an immediate potential need for legal services.“); Akron Pest Control
v, RudarExterminatingCo., Inc., 455 S.E.2d601,603 (Ga. App. 1995) (“The term [‘solicit’] implies
personal petition and importunity addressed to a particular individual to do some particular thing.“).
In addition, another provision of chapter 1704 of the Occupations Code indicates a distinction
between “solicitation” and “advertisement.” Section 1704.109(a) provides that “[a bail bond] board
by rule may regulate solicitations or advertisements by or on behalf of bail bond sureties.” TEX.
Oct. CODEANN. 5 1704.109(a) (Vernon 2004) (empliasis added). We conclude, on the basis ofthe
above-referenced authority, that section 1704.304(c) does not prohibit a bail bond licensee’s display
of advertising or licensee information on a vehicle in the parking lot of a county jail.

        You also ask whether, “[i]f the answer to [question] number 1 is in the negative,” the bail
bond board may enact “a local rule prohibiting the display of licensee advertising or information on
licensee vehicles that are parked in the Jail parking lot.” Request Letter, supra note 1, at 2-3. As
we have indicated, section 1704.109(a) permits a bail bond board by rule to regulate advertisements.
TEX. Oct. CODE ANN. 5 1704.109(a) (Vernon 2004). In order to answer your second question,
however, we must simultaneously address your third question, i.e., whether any such regulation
would “be violative of the First Amendment ri~ghts of licensees respecting ‘commercial speech.“’
Request Letter, sup-a note 1, at 3.

          Currently, that portion of section 1704.109 which expressly authorizes the regulation of
solicitation by bail bond licensees is under judicial review. Two conflicting judicial decisions have
considered the constitutionality     of section 1704.109 of the Occupations Code, although not
subsection (a) thereof. First, a state court of appeals held that, for the most part, rules regarding the
regulation of solicitation that were adopted under the general rule-making authority of a bail bond
board did not constitute an unconstitutional restriction on commercial speech.3 See Harris County



           ‘In its opinion, the couyt of appeals noted that the rules of the Harris County Bail Bond Board were adopted
prior to the enactment of section 1704.109 ofthe Occupations Code. As a result, the court, noting that section 1704.109
                                                                                                            (continued...)
The Honorable John W. Segrest - Page 3                          (GA-0502)




Bail Bond Board v. Pruett, 177 S.W.3d 260 (Tex. App.-Houston         [lst Dist.] 2005, pet. granted).
Shortly thereafter, a federal district court in Houston struck down the entirety of subsection (b),
holding it an improper restriction on commercial speech under the standard of Cen@& Hudson Gas
& Electric Corporation. See Pruett v. Harris County Bail Bond Board, 400 F. Supp. 2d 967 (S.D.
Tex. 2005). On September 1, 2006, the Texas Supreme Court granted review in the state case.
Because it appears that any rule regulating advertising might be impacted by the court’s decision in
Pruett, we must decline to answer your second and third questions on the basis of pending litigation.




          “(-continued)
“basically mirrors” the rules at issue, considered those rules under section 1704.101 ofthe Occupations Code, which
provides, inter alin, that a bail bond board shall “supervise and regulate each phase of the bonding business in the
county,” and shall “adopt and post rules necesssuy to implement this chapter.” Pruett, 177 S.W.3d at 26768 (quoting
TEX. Oct. CODE ANN. 5 1704.101). Nevertheless, the court’s conclusions regarding the constitutionality of the rules
adopted under section 1704.10 1 are equally applicable to the constitutionality ofrules adopted under section 1704.109.

         “Subsection   (b) provides:

                           (b) A bail bond surety, an agent of a corporate surety, or an employee of
                  the surety or agent may not make, cause to be made, or benefit f?om unsolicited
                  contact:

                               (1) through any means, including in person, by telephone, by
                  electronic methods, or inwriting, to solicit bonding business related to an individual
                  with an outstanding arrest warrant that has not been executed, unless the bail bond
                  surety or agent for a. corporate surety has an existing bail bond on the individual; or

                                 (2)   in person or by telephoneSo    solicit bonding business:

                                       (A)   that occurs between the hours of 9 p.m. and 9 a.m.; or

                                       (B)   within 24 hours after:

                                             (i)   the execution ofan arrest warrant on the individual;   or

                                             (ii) an arrest without a warrant on the individual.

TEX. Oct. CODE ANN. 3 1704.109(b)        (Vernon 2004)
The Honorable John W. Segrest - Page 4          (GA-0502)




                                     SUMMARY

                       Section 1704.304(c) of the Occupations Code does not
              prohibit a bail bond licensee’s display of advertising or licensee
              information on a vehicle in the parking lot of a county jail. The
              constitutionality ofsection 1704.109, whichpermits abail bond board
              to regulate the solicitation and advertisement of bail bonds, is the
              subject of current litigation.




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee
