                                  The Attorney General of Texas
                                                   Ocwber   3, 1984
JIM MATTOX
Attorney General


Suoremo Court Suildinq
                                 Honorable Tim Curry                            Opinion No.    JM-206
P. 0. BOX 1254S          -       Criminal District Attorney
Austin. TX. 78711. 254S          Tarrant County Courthouse                      Re:    Whether a county  bail
5121475.2501                     Fort Worth, Texas   76102                      bond   board  may limit    the
Telex QlM87ClM7
                                                                                number of bail bond licenses
Telecopier   51214750266
                                                                                granted in that county

714 Jackson. Suite 700           Dear Mr. Curry:
Dallas. TX. 75202.4506
214i742.W44
                                        You ask whether article      2372p-3, V.T.C.S..       grants the Tarrant
                                 County Bail Bond I;oard authority        to limit   the number of bail bond
4524 Alberta   Ave.. Suite 180   licensees    in Tarr,iut County.    You inform us that the act, vhich in
El Paso. TX. 79905-2793          section    S(f) (1) gr’ants county bail bond boards the authority             “to
91515353484                      supervise and regul.ate all phases of the bonding business,”             has been
                                 read to include tlw power to promulgate rules limiting              the number of
                                 licenses    granted by the board.        The quoted language was added to
                                 article   2372p-3 in 1981 and, you suggest,          may be the legislative
                                 response to --  Bexar I:ounty Bail Bond Board v. Deckard, 604 S.W.2d 214
                                 (Tex. Civ. App. - .;an Antonio 1980. no writ).           In Deckard, the court
                                 of civil   appeals ruled that a bail bond board may not Impose require-
806 Broadway, Suits 312
Lubbock. TX. 79401.3479
                                 ments on applicanc:rl for licenses      in addition    to those prescribed     by
KW747-5238                       the legislature.        Despite  the coincidence      of this      case and the
                                 seemingly broad l.egislative       reaction   to it.    you contend that the
                                 stronger    argument is that the Tarrant County Bail Bond Board is
4309 N. Tenth. Suite B
                                 vithout authority to limit the number of licenses          it issues.    We agree
McAlla”. TX. 78501-1885
5,2/882-4547
                                 with your conclusion and answer your question accordingly.

                                       Pursuant to :lts police         pover,   the legislature      may properly
 200 Main Plaza, Suite 400       delegate to a boari: or agency the power to grant, refuse,             revoke, or
 San Antonio. TX. 782052797
                                 cancel licenses      regulating   businesses    and occupations.      Trimble v.
 51242254191
                                 State Board of Registration      for Professional    En ineers, 483 S.W.Zd 275
                                 (Tex. Civ. App. - Elert.                                              denied, 412
 An Equal Opportunityl           U.S. 920 (1978).         Such .power , however, may only be exercised            as
 Attifmative Action EmPloYel     expressly    granted     by statute     or necessarily      Implied    therefrom.
                                 Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961).                 Thus,
                                 this office    has p;eviously     concluded that in pursuit of its lawful
                                 duties,   a bail bond board may investigate         an applicant’s     reputation
                                 for honesty,     truthtulness.    fair dealing,    and competency.       Attorney
                                 General Opinion H-$41 (1974).           However, in enacting       any necessary
                                 rules or regulations,      a licensing    board “may not act contrary to but
                                 only consistent     with. and in furtherance of, the expressed statutory




                                                                p. 926
Ronorable   Tim Curry - Page 2       (JM-206)




purposes.”   American Liberty Insurance Co. v. Ransau, 481 S.W.2d 793,
796-97 (Tex. 1972).   Whethex-a bail bond board may limit the number of
licensees  in a county, therefore,   must be determined by reference to
statute.

       A review      of article     3!372p-3 reveals       no provision    expressly
granting the power sought by the Tarrant County Bail Bond Board.                 Nor,
we believe,       can such authority       be implied from the act.         As noted
above, article       2372p-3 was :;ignificantly        amended in 1981.     See Acts
1981, 67th Leg.,         ch. 312!, at 875.           The amendments were Tf      ered
primarily to facilitate         the ,:ollection     of unpaid bond forfeitures,      to
require more detailed        information concerning an applicant’s         financial
background, to require adec,t.ate amounts of cash or property surety,
and to delineate        “the manrmsr in which a license           may be refused,
suspended, revoked, or cancelled.”               Bill Analysis to Senate Bill No.
727, prepared for House C,xmuittee on Criminal Jurisprudence,                    67th
Leg.,     1981. filed    in Bill File to Senate Bill No. 727, Legislative
Reference Library.         Consequently,      it is unmistakably clear      that the
legislature      sought to “strengthen         the authority  of County Bail Bond,
Boards so they may regulate            the bail bond business more properly.”
&       It is equally apparent, however, that in accomplishing              this the
legislature      did not intend to bestov on these entities            the unbridled
discretion      to grant or refuse applications           on grounds not found in
article     2372p-3.

      Article     2372p-3 requires      the bail bond board “to issue licenses
to those applicants         who qualify    under the terms of this Act.”        Sec.
5 (0 (2).     In addition,      if “the board is satisfied         that no grounds
exist on which to refuse the application,              the board shall enter an
order tentatively        approving the application,”      provided the applicant
subsequently      satisfies    the security     requirements   of the act. Sec.
6(e).     Section 9(a). meanwhILe, provides that a board may only deny a
license “to any person who t,as not complied with the requirements of
this Act for applying          for ,an original     or renewal license.”      It is
obvious,     then, that althou:I:r the county bail bond board is charged
with the duty of regulating         “all phases of the bonding business,”        the
board is not accorded authcrity           to establish   a ceiling    on the number
of licenses     it shall issue.

      Since no limitation     on the number of bail    bond licensees   is
authorized by article    2372p-3, any attempt by the Tarrant County Eail
Bond Board to engraft such a limitation     on the act by rule would fall
squarely    within  the prohibition     of   the Deckard decision.    The
rule-making power of the b:r:ll bond board under the act was strictly
construed by the court of civil       appeals in that case and, in our
opinion,   remains unaffected hy the 1981 amendments to the statute:

            The rule-making pqxrer delegated to the board under
            the statute   is rurely   the power to make rules




                                       p. 927
Eonorable   Tim Curry - Page 3       (JM-206)




            relating  to     the:   making      and   setting     of   bail
            bonds. . . .

                 The legislature    has carefully     set   out the
            requirements whict; must be met by applicanta       for
            bail    bond licencws.   . . .   The function    of the
            bail bond board :LII to administer the statute.     not
            to amend it. at Least in the absence of statutory
            language 1ndicati.r.g a legislative    intent that the
            board     should  hz.ve the power to add to         the
            qualifications    enumerated by the legislature.

Deckard. supra at 217.

       We are reminded that    I:he policy      of this   state   with regard   to the
bail   bond business is

             to provide --
                         reasor.rble   regulation to the end that
             the right of bai:. be preserved and implemented by
            lust and practicsJ    procedures governing the giving
            or making of bail        bond and other security    to
            guarantee appeara-Ice of the accused.        (Emphasis
            added).

V.T.C.S. art. 2372p-3, 81. The act provides no standard upon which to
base the limitation    contraplated      by the Tarrant County Bail Bond
Board.    Without direction     from the statute.      the board might be
encouraged to regulate     ar'~Ltrarily,   a practice   the legislature    has
taken pains    to eliminatc~.      Moreover,   it   is conceivable     that a
predetermined limit on the number of bail bond licenses          issued would
erode, rather than preserve:, the right of bail.

                                    SUMMARY

               Article  2372~4,    V.T.C.S..   does not authorize
            the Tarrant County Bail Bond Board to limit        the
            number of bail bc1r.d licensees  in Tarrant County.


                                                Jr&
                                                            HATTOX
                                                 Attorney    General of Texas

TOMGREEN
First Assistant    AttONey    Gweral




                                       p. 928
Iionorable   Tim Curry - Page 1 (JM-206)




DAVID R. RICRARDS
Executive Assistant Attorney    General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINIONCOHMIlTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                 P.   929
