    OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN CORNYN




                                                  July 26,2002



The Honorable Juan J. Hinojosa                              Opinion No. JC-0534
Chair, House Committee on
 Criminal Jurisprudence                                     Re: Application of section 1704.302, Texas
Texas House of Representatives                              Occupations Code, to an employee of a family-
P.O. Box 2910                                               owned bail bond business when the business is
Austin, Texas 78768-2910                                    purchased by another relative (RQ-0507-JC)


Dear Representative      Hinojosa:

         You have asked this office for an interpretation of section 1704.302 of the Texas Occupations
Code, forbidding the employment of a convicted felon by a licensed bail bondsman, in light of a
particular factual situation. This office does not make factual determinations in the opinion process.
Accordingly, we will assume the facts as you give them for the purpose of interpreting the statute.
We caution, however, that to the extent the legal resolution of any particular situation depends upon
specific factual determinations, our advisory opinion cannot resolve it.

        Your question concerns a person who has been “employed in the bail bond business for a
lengthy period of time.“’ You inform us that during this employment this person was convicted of
a felony. As we understand it, he had been employed for some years in his father’s bail bond
business before the change in the Occupations Code forbidding the employment of felons made by
section 1704.302 became effective on September 1,2001, and before his father’s death on September
27,2001.* Since that time, the family business in which he was employed has been purchased by
another relative. Your question is whether the “grandfather” clause of the act that amended section
1704.302 permits a person in the situation described to remain employed in this particular bail bond
business. We conclude that, given the language of the “grandfather” clause of Senate Bill 1119 of
the Seventy-seventh    Texas Legislature, which enacted the amendment to section 1704.302 in
question, and assuming this is indeed the only relevant consideration, the person may continue in
his employment despite the change in ownership of the family business. See Act of May 27,2001,
77th Leg., R.S., ch. 1262, 5 1, sec. 17,200l Tex. Gen. Laws 2996,300l.




           ‘Letter from Honorable Juan J. Hinojosa, Chair, House Committee on Criminal Jurisprudence, Texas House
of Representatives, to Honorable John Comyn, Texas Attorney General (Feb. 4,2002) (on file with Opinion Committee)
[hereinafter Request Letter].

         2Telephone   Conversation   with Elva Escalon,   District   Director,   Office   of Honorable   Juan J. Hinojosa
(June 6,2002).
The Honorable   Juan J. Hinojosa   - Page 2         (JC-0534)




        Section 1704.302(c) of the Occupations     Code was added as part of Senate Bill 1119 by the
Seventy-seventh Legislature, and provides:

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

TEX. Oct. CODEANN. 9 1704.302(c) (Vernon 2002).

         By its terms, then, section 1704.302(c) prohibits the employment by a bail bond business of
a person convicted within the past ten years of a felony or misdemeanor involving moral turpitude.
Accordingly, a convicted felon would not be employable by such a business were it not for another
provision of Senate Bill 1119, section 17, which provides:

                        The change in law made by this Act to Subsection (c), Section
                1704.302, Occupations Code, applies only to a person employed by
                a bonding business after the effective date of this Act.

Act ofMay 27,2001,77thLeg.,      R.S., ch. 1262,§ 1, sec. 17,200l Tex. Gen. Laws 2996,300l.        The
effective date of Senate Bill 1119 was September 1,200l.

         We read section 17 as a “grandfather” clause, permitting those persons whose employment
by a bonding business was legal before the enactment of section 1704.302(c) to continue in their
employment, but prohibiting the employment, in the sense of hiring, of any person barred by
subsection (c) after September 1,200l. While the word “employed” in section 17 might conceivably
be read in a broader sense, to read it so would in effect mean that the section was applicable only
after its effective date, a truism and therefore surplusage. We are, however, obliged to prefer
a reading of statutory language that does not have such an effect. See TEX. GOV’T CODEANN.
6 311.021(2) (V emon 1998) (entire statute presumably intended to be effective); Perkins v. State,
367 S.W.2d 140,146 (Tex. 1963).

        We note that the relevant language in section 17 is “employed by a bonding business” rather
than “employed by a license holder.” While there is no relevant legislative history explaining this
language, we read it, given the use of the indefinite article, to refer to a particular bonding business
rather than to employment in the bail bond industry generally. Further, that a “bonding business”
may continue in existence as the same entity after the death of a “license holder” is confirmed by
section 3 of Senate Bill 1119, which amends section 1704.152 of the Occupations Code and
provides that certain licensing requirements do not apply to “an individual who applies to operate
the bail bond business of a license holder who has died” if the individual is that license holder’s
spouse or is related to the decedent “within the first degree by consanguinity.” TEX.Oct. CODEANN.
8 1704.152(c)(2) (V emon 2002) (emphasis added). As we understand the situation you describe,
The Honorable   Juan J. Hinojosa   - Page 3         (JC-0534)




the bonding business in question remains the same, although ownership         of it has changed hands
within the same family. Request Letter, supra note 1, at 1.

         In light of the distinction in the statutory language between “license holder” in subsection
(c) and “bonding business” in section 17, it might be argued that, given that there is now a new
license holder, that license holder may not pay the person in question. Such a reading is not
consistent with section 17. Section 17 asserts that the stricture of subsection (c) applies only to a
person employed after the effective date by a bonding business. Consequently, subsection (c) does
not apply to a person employed before that date. The person in question was employed by this
continuing family business before the effective date of the statute and before the death of the original
license holder. That being the case, pursuant to section 17 of Senate Bill 1119, the change in law
which would prevent the person in question from being hired by any other bonding business would
not require that he be barred from the job he already has.
The Honorable Juan J. Hinojosa     - Page 4       (JC-0534)




                                       SUMMARY

                        Section 1704.302(c) of the Texas Occupations Code, as
               amended by Senate Bill 1119 of the Seventy-seventh               Texas
               Legislature, prohibits the employment of a convicted felon by a bail
               bonding business unless that person was employed by the business
               before the section’s effective date. A person whose continued
               employment by a family-owned bail bonding business is permissible
               despite the amendment of section 1704.302(c) of the Occupations
               Code does not forfeit that status solely because the business in which
               he is employed changes hands within the family.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
