P.



                THE     ATTORSEY          GENERAL
                             OF   TEXAS

                             December 29, 1986




     Honorable Lloyd Criss                     Opinion No. JM-598
     Chairman
     Committee on Labor and Employment         Re:    Whether a city official
        Relations                              may engage in the writing of
     Texas House of Representatives            bail bonds
     P. 0. Box 2910
     Austin, Texas   78769

     Dear Representative Criss:

          You ask whether a city official who receives remuneration from
     the city or county may engage in the writing of bail bonds.
     Specifically, you inform us that

               [t]he current superintendent in charge of streets
               in Madisonville, Texas, is also engaged in the
               writing of bail bonds in Madison County.

     We assume that the superintendent is responsible for the construction
     and maintenance of city streets. Because you ask specifically about
     the current superintendent in charge of streets, we will limit our
     discussion to that particular office. We conclude that, as a matter
     of law, the superintendent in charge of streets is not prohibited by
     virtue of his employment with the city from engaging in the writing of
     bail bonds. We do not decide whether there is any conflict as a
     matter of fact, &,    whether the superintendent in charge of streets
     may faithfully execute the duties of his office and, at the same time,
     engage in the writing of bail bonds. Such a determination involves
     the resolution of an issue of fact which we are not empowered to make.

          You inform us that Madisonville is a general law city; accor-
     dingly, it is governed by the general laws. specifically articles 961
     et seq., V.T.C.S. See Woolridge v. Folsom, 564 S.W.2d 471 (Tex. Civ.
     APP. - Dallas 1978, no writ). General law cities are creatures of
     statute and have no powers except those expressly or impliedly granted
     by the statute creating them. City of Uvalde v. Uvalde Electric & Ice
     Co., 250 S.W. 140 judgment adopted (Tex. Comm'n App. 1923); Dibrell v.
     City of Coleman, 172 S.W. 550 (Tex. Civ. App. - Austin 1915, writ
     ref'd). Article 977, V.T.C.S., authorizes the creation of




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Honorable Lloyd Criss - Page 2   (JM-598)


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         such other officers and agents as the city council
         may from time to time direct, who may either be
         appointed or elected as provided by ordin-
         ance. . . .

We assume. that the position of "superintendent in charge of streets"
is such an office.

     Article 2372p-3, V.T.C.S., provides for the licensing and
regulation of bail bondsmen. The act creates a county bail bond board
in each county having a population of more than 110,000 according to
the last federal census; in counties of less than 110,000, the
creation of the board lies within the discretion of a majority of the
officers of the county who would constitute members of the board.
V.T.C.S. art. 2372p-3, 583, 5. The population of Madison County,
according to the last federal census, is less than 110,000. We have
been informed that the officers of Madison County have not created
such a board. Accordingly, the regulation and licensing pursuant to
article 2372p-3 of bail bondsmen in Madison County falls without the
ambit of the act.

     In counties not falling within article 2372p-3, V.T.C.S., the
qualifications of bail bondsmen are determined by recourse to other
statutory provisions. Article 17.06 of the Code of Criminal Procedure
provides that

         [wlherever in this Chapter, any person is required
         or authorized to give or execute any bail bond,
         such bail bond may be given or executed by such
         principal and any corporation authorized by law to
         act as surety, subject to all the provisions of
         this Chapter regulating and governing the giving
         of bail bonds by personal surety insofar as the
         same is applicable.

Article 2.01 of the Business Corporation Act, article 8.01 of the
Insurance Code, and the above-quoted section of the Code of Criminal
Procedure, taken together, permit two types of surety on bail bonds.

         It seems clear to us that the legislature, when it
         made the comprehensive revision of the bail bond
         statutes, permitted two types of surety upon bail
         bonds: individuals and insurance comoanies. No
         statute of general application vested in aF
         agency the right to determine the sufficiency of
         individual sureties and that determination was
         entrusted to the discretion of the approving
         official. As to the corporate surety, there was a
         statute of general application which vested the




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Honorable Lloyd Criss - Page 3   (JM-598)




          determination of the sufficiency of the insurance
          companies as sureties upon the State Board of
          Insurance.

International Fidelity Insurance Company of Newark, New Jersey V.
Sheriff of Dallas County, 476 S.W.2d 115, 119 (Tex. Civ. App. -
Beaumont 1972, writ ref'd n.r.e.). We can find no provision in either
the Code of Criminal Procedure, the Business Corporation Act, or the
Insurance Code which would preclude a city officer from engaging in
the writing of bail bonds in the situation you describe. We turn next
to the body of law governing public officers in order to determine
whether there is in that body of law any legal impediment to an
officer engaging in such activity.

     This office has in the past been called upon frequently to decide
whether an officer of a political subdivision may contract with the
political subdivision of which he is an officer. The general rule was
that, absent a specific statutory prohibition, such contracts were
invalid where there was a conflict of interest. See, e.g., Attorney
General Opinion JM-99 (1983); ~~-236, MW-124 (1980); MW-34 (1979);
H-624 (1975); H-354 (1974). In Attorney General Opinion JM-99 we
discussed the common law prohibitions against conflicts of interest
and concluded that

          as long as there is no conflict of interest, self-
          dealing, or potential for dereliction of duties,
          we believe that as a general proposition, a county
          official or employee may contract with the county
          through the commissioners court for services or
          materials which are furnished by that county
          employee in his private capacity and which are
          separate and wholly unrelated to his official
          county duties.

This general conclusion has been modified by the enactment of article
988b. V.T.C.S., which became effective January 1, 1984.

     In this instance, however, the city official is engaged in
business, not with the city, but with private individuals. HIS
private business is unrelated to his official duties. We have found
no statute, nor have you directed us to one, which imposes restric-
tions comparable to article 988b on public officers engaged in private
business with private individuals. But see Penal Code art. 39.01.
Accordingly, we conclude that the superintendent in charge of city
streets is not precluded as a matter of law from engaging in the
writing of bail bonds. We do not address whether there is any
conflict as a matter of fact, i.e., whether the superintendent in
charge of city streets may faithfully execute the duties of his office
and, at the same time, engage in the writing of bail bonds.




                           p. 2676
                                                                    ,
Honorable Lloyd Criss - Page 4 (JM-598)




                              SUMMARY

             The superintendent in charge of streets for the
          city of Madisonville is not precluded as a matter
          of law from engaging in the writing of bail bonds.




                                        JIM     MATTOX
                                        Attorney General of Texas

JACK HIGHTOWKR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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