   OFFICE OP THE ATTORNEY GENERAL    STATE OF TEXAS
   JOHN      CORNYN




                                           March lo,1999



The Honorable James M. Kuboviak                       Opinion No. JC-0019
Brazos County Attorney
300 East 26th Street                                  Re: Whether a sheriff of a county governed by
Bryan, Texas 77803                                    article 2372p-3 of the Revised Civil Statutes is
                                                      required by Code of Criminal Procedure article
                                                      17.11, section 2 to refuse the bond of a bondsman
                                                      licensed in the county when on notice that the
                                                      bondsman is in default on a bond in another
                                                      county (RQ-1134)


Dear Mr. Kuboviak:

        You ask whether a sheriff of a county governed by article 237213-3 of the Revised Civil
Statutes is required by Code of Criminal Procedure article 17.11, section 2 to refuse the bond of a
bondsman licensed in the county when on notice that the bondsman is in default on a bond in another
county. We conclude that a sheriff of a county governed by article 2372p-3 may not unilaterally
refuse the bond of a bondsman licensed in the county on the basis of the bondsman’s default on a
bond in another county.

         Your query arises from the interaction of a number ofCode of Criminal Procedure provisions
and article 2372p-3. Code of Criminal Procedure article 15.18 provides that a person arrested under
a warrant issued in a county other than the one in which the person is arrested shall be taken before
a magistrate in the county of arrest who shall take bail, if allowed by law, and immediately transfer
the bond to the court having jurisdiction ofthe offense. See TEX. CODE GRIM. PROC. ANN. art. 15.18
(Vernon 1977). This office has concluded that in the case of an arrest on an out-of-county warrant
under Code of Criminal Procedure article 15.18, the sheriff in the county of arrest is required by
article 2372p-3 to accept and approve a bond offered by abondsman licensed in the county of arrest.
See Tex. Att’y Gen. Op. No. JM-271 (1984). Thus, by operation of Code of Criminal Procedure
article 15.18, the bond of a bondsman licensed in one county may be transferred to a court in a
county where the bondsman is not licensed.

           Your question involves a bondsman licensed and currently in good standing with the Brazos
County      Bail Bond Board, who has signed as surety on bonds for defendants arrested in Brazos
County     on Tarrant County arrest warrants. The bondsman is not licensed in Tarrant County. You
provide     the following facts: The bondsman signed as surety on a bond with defendant X who was
arrested     in Brazos County on a Tarrant County arrest warrant in May 1997. In March 1998, the
The Honorable     James M. Kuboviak        - Page 2




Brazos County Sheriff received a notice from the Tarrant County Clerk stating that the bondsman
was in default on the May 1997 bond. In April 1998, the sheriff notified the bondsman that the
bondsman would be disqualified from making bail bonds in Brazos County if he did not satisfy the
Tarrant County judgment within twenty-one days. During that period, defendant Y was arrested in
Brazes County on a Tarrant County arrest warrant. The bondsman signed as surety on a bond with
defendant Y. The Brazos County Sheriff approved the bond, forwarded it to Tarrant County, and
released defendant Y from custody. Tarrant County returned the bond to the Brazos County Sheriff
because of the prior default and issued another warrant for the arrest of defendant Y. Upon the
expiration of the twenty-one day period, the Brazos County Sheriff notified the bondsman that he
was disqualified from signing bonds in Brazos County because the Tarrant County judgment
remained unsatisfied.

        You ask the following:

                 Does notification by the clerk of the court of one county to a sheriff.
             in a second county that a surety is in default on a bond in the first county
             create an immediate duty on the part of the official in the second county to
             disqualify the surety who is in default from signing on bonds, pursuant to the
             Code of Criminal Procedure art. 17.11,s 2?

Letter from Honorable James M. Kuboviak, Brazos County Attorney, to Attorney General Dan
Morales (Apr. 30, 1998) (on tile with Opinion Committee).         You also ask whether the answer
depends upon whether “the defaulting surety is licensed and in good standing with the bail bond
board of the second county under [article] 2372p-3.” Id. Your questions focus on the duties of the
sheriff in the second county. You do not ask about the authority of officials in the first county, the
county that issued the arrest warrants, with respect to bonds executed in the second county and then
transmitted to the county pursuant to Code of Criminal Procedure article 15.18. That subject raises
questions about the relationship between article 2372p-3 and Code of Criminal Procedure article
 15.18 that we need not resolve here.

         Your questions require us to examine the relationship between Code of Criminal Procedure
chapter 17 provisions governing the taking of bail bonds throughout the state and article 2372p-3,
a more recent statute’ governing the execution of bail bonds in certain counties, including Brazos
County. The Code of Criminal Procedure authorizes an officer taking a bail bond to determine the
sufficiency of the security offered by a surety on a bail bond; it does not, however, provide for
the licensing of bondsmen or authorize the officer taking the bond to require the surety to post
collateral. SeeT~x.   CODE GRIM. PROC. ANN. arts. 17.1 l-.14 (Vernon 1977); Castuneda Y. Gonzalez,
No. 13-97-897-CV, slip op. at 7-8 (Tex. App.-Corpus Christi 1998, no pet.); Tex. Att’y Gen. Op.



           ‘Article 2372p-3 was fust enacted in 1973. See Act ofMay 18, 1973,63d Leg., RX, ch. 550, 1973 Tex. Gen.
 Laws 1520. Code of Criminal Procedure article 17.11, the provision at the heart of your query, was enacted in 1965
 and last amended in 1967. See Act of May 27, 1965,59th Leg., R.S., ch. 722,1965 Tex. Gen. Laws 3 17; Act of May
 19, 1967,6Oth Leg., R.S., ch. 659,§ 14, 1967 Tex. Gen. Laws 1732,1736.
The Honorable      James M. Kuboviak           - Page 3




No. DM-483 (1998) at 7-8. While the sufficiency of a bond is evaluated on a case by case basis, the
officer taking the bond is authorized to consider other bonds executed by the surety. Id. In addition,
Code of Criminal Procedure article 17.11, section 2 disqualifies a surety in the following
circumstances:

                  Provided, however, any person who has signed as a surety on a bail bond
              and is in default thereon shall thereafter be disqualified to sign as a surety so
              long as he is in default on said bond. It shall be the duty of the clerk of the
              court wherein such surety is in default on a bail bond, to notify in writing the
              sheriff, chief of police, or other peace officer, of such default. A surety shall
              be deemed in default from the time the trial court enters its final judgment on
              the scire facias until such judgment is satisfied or set aside.

‘Rx. CODE GRIM. PROC. ANN. art. 17.11, § 2 (Vernon 1977). The Tarrant County Clerk’s notice to
the Brazos County Sheriff was issued under the authority of article 17.11, section 2. You believe
that article 17.11, section 2 disqualifies a surety born acting as a surety in any county of the state as
does, apparently, the Tarrant County Clerk. Nothing in article 17.11, section 2 suggests that the
disqualification is limited to the county of the default. We believe this construction of article 17.11,
section 2 is reasonable and consistent with section 1, which authorizes the officer taking a bail bond
to consider the sufficiency of the security offered by a surety based on property owned by the surety
anywhere in the state. See id. 5 1 (requiring that surety be resident of this state and have “property
therein liable to execution worth the sum for which he is bound”).

         In a county governed by article 2372p-3, no person may act as a bondsman in the county
except a person who is licensed or, in certain limited circumstances, attorneys. TEX. REV. CIV. STAT.
ANN. art. 2372p-3, 5 3(a) (Vernon Supp. 1999). “Any person desiring to act as a bondsman in any
court of the county shall tile with the County Bail Bond Board a sworn application for a license.”
Id. 5 6(a). The authority to license and discipline bondsmen is vested in the county bail bond board.
Id. $5 6, 8, 9, 10. Section 14 of article 2372p-3 provides that the sheriff “shall accept or approve
a bond posted by a licensed bondsman only in accordance with this Act and the rules prescribed by
the board, but a sheriff may not refuse to accept a bail bond from a licensed bondsman who meets
the requirements of [section 6(a)(4) and (5)] of this Act,” which require a bondsman to post security
with the county. Id. 5 14.’ Article 2372p-3, section 14 has been held to preclude a sheriff from



           ‘Subsections (a)(4) and (a)(5) of section 6 provide that to apply for a license, an applicant must submit, among
other things, a statement listing nonexempt real estate owned by the applicant that the applicant intends to convey in
trust to the board and a statement indicating the amount of cash (or cash equivalent) which the applicant intends to place
on deposit with the county treasurer to secue payment of any obligations incurred by the applicant in the bonding
business if the license is granted. TEX. REV. CIV. STAT. ANN. art. 2372p-3,s 6(a)(4), (5) (Vernon Supp. 1999). Upon
tentative approval of the license, the applicant must deposit “with the county treasurer of the county in which the license
is to be issued [the cash]      to be held in a special fund to be called the bail security fund” OI must execute in !mst to
the board deeds to the pmperty listed in the applicant’s statement, “the condition of the tmst being that the property may
be sold to satisfy any foal judgment forfeitures that may be made in bonds on which the licensee is surety after such
                                                                                                                (continued...)
The Honorable      James M. Kuboviak          - Page 4




unilaterally refusing to accept a bond from a licensed bondsman; a sheriff may refuse a licensed
bondsman’s bond only ifthe bondsman does not meet the security requirements of article 2372p-3.
See Font v. Carr, 867 S.W.2d 873, 882 (Tex. App.-Houston        [lst Dist.] 1993, writ dism’d w.o.j.)
(“When a bondsman has met [article 2372p-3’s] requirements, a sheriff may not question his
solvency or refuse his bonds.“); Tex. Att’y Gen. Op. Nos. DM-483 (1998) at 5; JM-1057 (1989) at
l-2 (sheriff may not refuse to accept bond of licensed bondsman); see also TEX. GOV’T CODE ANN.
§ 3 11.016(5) (Vernon 1998) (providing that generally the phrase “‘[mlaynot’ imposes a prohibition
and is synonymous with ‘shall not”‘). Thus, section 14 of article 2372p-3 precludes a sheriff from
unilaterally refusing a bond from a bondsman licensed in the county on the basis that the bondsman
is in default on a bond in another county.

       We believe that in the circumstances you describe, Code of Criminal Procedure article 17.11,
section 2 and article 2372p-3 conflict. Article 17.11, section 2 disqualifies a surety who is in default
on a bail bond from signing as a surety during the period of default anywhere in the state and, in
effect, requires any sheriff to refuse to accept a bond from such a surety. Article 2372p-3, section
14, however, precludes a sheriff from unilaterally refusing a bail bond from a bondsman licensed in
the county on this basis. Article 2372p-3 is the more recent-’ and “more particular statute. It applies
only in counties that have a bail bond board, while article 17.14 applied in every Texas county before
the legislature enacted article 2372p-3. Thus, article 237213-3 controls when in conflict with the
more general regulatory provisions of the Code of Criminal Procedure.” Font, 867 S.W.2d at 882.
We believe a court would hold that article 2372p-3, section 14 prevails over article 17.11, section
2. See id. at 881-82 (holding that article 2372p-3 provisions governing solvency of bondsmen
prevail over Code of Criminal Procedure article 17.14); see also Klevenhagen v. International
Fidelity Ins. Co., 861 S.W.2d 13,18 (Tex. App.-Houston [lst Dist.] 1993, no writ) (Insurance Code
provisions governing solvency of corporate sureties prevail over Code of Criminal Procedure article



           “(-continued)
notice and upon such conditions as are required by the Code of Criminal Procedure, 1965, as amended, in bond
forfeiture cases.” Id. 5 6(f)( 1), (2). “No bondsman may execute, in any county, bail bonds that in the aggregate exceed
 10 times the value of the property held as security on deposit OI in trust.   A county officer or employee designated
by the board shall maintain a current total       and no further bonds may be written by or accepted from the bondsman
when the limit is reached.” Id. $6(g). In addition, “[wlhen a bondsman’s total liability on judgments nisi reaches two
times the same amount as he has on deposit as security, no further bonds may be written until the bondsman posts
additional security       _” Id. “The cash deposit 01 the funds realized from the trust shall be used to pay the fmal
judgments of any bail forfeitures that result from the licensee’s execution of a bail bond, if the licensee fails to satisfy
the judgment within 30 days after a final judgment of forfeiture.” Id. 5 6(h). Section 10 provides that the board may,
with no notice OI hearing, immediately suspend the license of a licensee who fails to maintain a security deposit at the
ratio required by section 6(g). “Once the proper ratio is regained, the suspension shall be immediately lifted.” Id.
$ 10(f). Section 10 also provides that the board “shall revoke the license with prior notice or hearing if the licensee fails
to pay any tinal judgment connected with the licensee’s bonding business within 30 days and there is not suffXent
property held as security to satisfy the final judgment.”   fd.

         ‘Code of Crimina 1Procedure article 17.11, section 2 was enacted in 1965 and last amended in 1967. Seesupra
note 1. Article 2372p-3 was enacted in 1973 and significantly amended in 1981. See id. & infra note 5. Section 14
was added to article 2372p-3 in 1981. See in@ note 5.
The Honorable     James M. Kuboviak    - Page 5




17.13 with regard to collateral posted by corporate sureties); TEX. GOV’T CODE ANN. 5 3 11.026(b)
(Vernon 1998) (where general and special provisions conflict and are irreconcilable,          special
provision generally prevails). For this reason, the Brazos County Sheriffmay not unilaterally refuse
the bonds of a bondsman who is licensed and in good standing with the Brazos County Bail Bond
Board on the basis that the bondsman is in default on a bond in Tarrant County.

       You urge us to conclude that article 17.11, section 2 prevails over article 2372p-3 and
authorizes the sheriff to disqualify the licensed bondsman, relying primarily upon Burns v. Harris
County Bail Bond Board, 663 S.W.2d 615 (Tex. App.-Houston [lst Dist.] 1983, no writ). We
decline to do so for the following reasons.

       In Burns, a bondsman who had two outstanding bond forfeiture judgments against him in
Harris County trial courts challenged a policy adopted by both the Harris County Bail Bond Board
and the sheriff that “they would no longer accept bonds from any surety who was in default on a
bond forfeiture judgment.”       Burns, 663 S.W.2d at 616. The bondsman argued that the
disqualification policy, which was based on the authority of article 17.11, section 2, suspended his
license without notice and a hearing as required by article 2372p-3. The court opined that the board
and sheriff had not suspended the bondsman’s license: “As soon as he satisfies the judgments
against him, he may write new bonds without having to apply for a new license or a renewal
[license]” under article 2372p-3. Id. The court also rejected the bondsman’s argument that article
17.11, section 2 had been superseded by article 2372p-3, section 9(b)(6), which authorizes a bail
bond board to suspend or revoke a license for “failing to pay within 30 days any final judgment
rendered on any forfeited bond,” stating:

                    Once again, [the bondsman]        confuses license suspension with a
              temporary forfeiture of his authority to sign as a surety on new bonds. If,
               after 30 days, [the bondsman] did not pay off his obligations on his final
              judgments, the licensing board was authorized to consider suspending or
               revoking his license under section 9(b)(6) of the licensing act. The two
               sections are not facially in conflict, and we must construe them to avoid
               needless conflict.

Id. at 617.

         Burns is distinguishable from the situation that gives rise to your query for two reasons.
First, Burns considers a policy adopted by the Harris County Bail Bond Board and the county
sheriff. It does not address unilateral action on the part of the sheriff. See Font, 867 S.W.2d at 882
n.5 (distinguishing Burns on basis that it dealt with action ofboth sheriff and bail bond board rather
than “the right of the sheriff, acting alone, to refose to accept bonds”). Clearly, given section 14 of
article 2372p-3, a sheriff may not unilaterally adopt a policy disqualifying licensed bondsmen who
are in compliance with the article 2372p-3 security requirements. See id. (faulting Burns for failing
to address section 14 of article 2372p-3, “which specifically prohibits the sheriff from refusing bonds
from a bondsman in compliance with the Act. Because the Burns opinion did not construe section
The Honorable     James M. Kuboviak          - Page 6




14, the part of the statute that we rely on most heavily today, Burns does not control the present
case.“). Second, Burns considers the authority of Harris County officials to take action against a
bondsman on the basis of bond forfeiture judgments rendered by Harris County courts. Burns does
not address the authority of a sheriff or a bail bond board in an article 2372p-3 county to take action
regarding a licensee’s out-of-county bond forfeiture. Finally, we question the precedential authority
of Burns given that fhe same court later expressly declined to rely on it in Font. See id.

       You do not ask and we do not resolve whether a bail bond board is authorized to adopt a policy
disqualifying a licensed bondsman based on a default on a bond in another county. As noted above,
section 9(b)(6) of article 2372p-3 authorizes a bail bond board, after notice and a hearing, to suspend
or revoke a license for “failing to pay within 30 days any final judgment rendered on any forfeited
bond in any court of competent jurisdiction within the county of the licensee.” TEX. REV. CIV. STAT.
ANN. art. 2372p-3, 5 9(b)(6) (Vernon Supp. 1999) (emphasis added). We believe that section
9(b)(6), in referring to the “county of the licensee,” authorizes a bail bond board to suspend or
revoke a license only because of a bond forfeiture within the county and not on the basis of a bond
forfeiture in any other county in the state. This construction is supported by the provision’s history.
When article 2372p-3 was first enacted in 1973, section 9(b)(5) authorized a bail bond board to
suspend or revoke a license for “failing to pay within 30 days any final judgment rendered on any
forfeited bond in any court of competent jurisdiction within this state.“4 The legislature amended
and renumbered this provision in 1981, changing “within this state” to “within the county of the
licensee.“5 This amendment indicates that the legislature intended section 9(b)(6) to preclude a bail
bond board from suspending or revoking a bondsman’s license on the basis of an out-of-county
forfeiture.6

          In Attorney General Opinion JM-1057, this office addressed a similar question-whether a
bail bond board has any authority to collect on a bond executed in another county by one
of its licensed bondsmen. See Tex. Att’y Gen. Op. No. JM-1057 (1989) at 3. In concluding that a



          ‘See Act of May 18,1973,63d Leg., R.S., ch. 550,s 9,1973 Tex. Gen. Laws 1520,1524 (emphasis added).

          ?&Act ofMay 29,1981,67tb Leg., R.S., ch. 312, $9,1981 Tex. Gen. Laws 875,882.

          Texas courts recognize a presumption that an amen&tory enactment intends to change legal rights. See, e.g.,
Exparte   Trahan, 59 1 S.W.2d 837,842 (Tex. Grim. App. 1979)(“In enacting an amendment the Legislature is presumed
to have changed the law, and a construction should be adopted that gives effect to the intended change, rather than one
that renders the amendment useless.“) (citations omitted); American Sur. Co. V.AxteNCo., 36 S.W.2d 715, 719 (Tex.
 1931) (“‘It will be presumed that the Legislature, in adopting the amendment, intended to make some change in the
existing law, and therefore the courts will endeavor to give some effect to the amendment.’ [I]t is the duty ofthe courts
to give some effect to the amendment.“) (citation omitted). We are not aware of anything that would rebut this
presumption in this case, such as contrary evidence indicating that the legislature merely intended the 1981amendments
to article 2372p-3, section 9(b)(5) to clarify existing law. See, e.g., Terns Home Management, Inc. v. Texas Dep’t of
Mental Health & MentalRetardation,      953 S.W.2d I,7 (Tex. App.-Austin 1997,pet. denied) (presumption rebutted by
evidence that amendment was intended to interpret statute in accordance with agency interpretation); Adorns v. Texas
St&e Ed. ofChiropractic Exam ‘is, 744 S.W.2d 648,656 (Tex. App.-Austin 1988, no writ) (presumption rebutted by
 evidence that amendment reiterated courts’intqretation of act).
The Honorable   James M. Kuboviak      - Page 7




bail bond board lacked authority to do so, the opinion pointed out the following features of article
237213-3:

                The license granted an applicant by the county bail bond board is to act
           as a bondsman in anv court of the county. V.T.C.S. art. 2372p-3, 5 6(a).
           Section 9(b) of article 2372p-3 authorizes the board, after notice and hearing,
           to suspend or revoke a license for a number of designated reasons, one of
           which is “failing to pay within 30 days any final judgment rendered on any
           forfeited bond in any court of competent jurisdiction within the countv of the
           licensee.[“] (Emphasis added.) Section S(t)(l) of article 2372p-3 provides
           that the county bail bond board has the power and duty to “enforce this Act
           within the county.”

Id. (emphasis in original). This office concluded that a county bail bond board “is not empowered
by the act to grant a license to an applicant to act as a bondsman in another county nor does the board
have any authority or control over the collection of a bond given in another county by such
bondsman.” Id. Attorney General Opinion JM-1057 indicates that a county bail bond board has
limited authority regarding bonds given by its licensees in other counties.

          We cannot predict whether a court would uphold a bail bond board policy temporarily
disqualifying a bondsman for the period of time he is in default on a bond in another county. On the
one hand, such a policy would appear to conflict with section 9(b)(6), which this office has
previously suggested precludes license suspensions and revocations based on out-of-county
forfeitures. See id. On the other hand, a court that accepted the Burns court’s distinction between
temporary disqualifications and license suspensions might uphold such a policy. As noted above,
however, Burns, a no writ case, has been cited in just one subsequent judicial opinion, which
criticizes and distinguishes it. See Font, 867 S.W.2d at 882 n.5 (distinguishing Burns and criticizing
it for failing to address article 2372p-3, section 14).

         As you point out, the Code of Criminal Procedure provides that a person who is arrested on
an out-of-county warrant for a bailable offense is entitled to bail in the county of arrest and that the
bond must be transmitted to the court having jurisdiction of the offense. See TEX. CODE CRIM.
PROC. ANN. art. 15.18 (Vernon 1977). Given that the Code of Criminal Procedure expressly
contemplates that bail bonds will be transmitted between counties, you contend, a bondsman’s
commitment to secure the presence of the defendant in court should be enforced in every county.
We are sympathetic to your concerns. It may be that article 2372p-3, with its focus on bondsmen’s
security on deposit in the licensing county, see sup-a note 2, does not adequately address the transfer
of bonds between counties and should be amended to authorize a bail bond board to suspend or
revoke the license (or to authorize the sheriff or other official taking a bail bond to refuse the bond)
of a bondsman who is in default on a bond in another county, particularly when the bond was written
in the county and then transmitted elsewhere. The power to amend article 2372p-3 to address
transfers of bonds between counties, however, lies with the legislature, not this office.
The Honorable   James M. Kuboviak   - Page 8




                                      SUMMARY

               A sheriff of a county governed by article 2372p-3 of the Revised Civil
           Statutes may not unilaterally refuse the bond of a bondsman licensed in the
           county on the basis that the bondsman is in default on a bond in another
           county.




                                             Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General
