    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN     CORNYN




                                                   April 12,200l



The Honorable Susan D. Reed                                 Opinion No. JC-0366
Bexar County Criminal District Attorney
Bexar County Justice Center                                 Re: Whether a county bail bond board may
300 Dolorosa, Fifth Floor                                   consider an independent appraisal of real property
San Antonio, Texas 78205-3030                               executed in trust from bondsmen for the purpose
                                                            of determining their limit for executing bonds
                                                            (RQ-03 17-JC)
Dear Ms. Reed:

         You inquire about the construction of chapter 1704 of the Occupations Code, which governs
the licensing and regulation of persons acting as bail bond sureties in counties with bail bond boards.
The 76th Texas Legislature adopted the Occupations Code as a nonsubstantive revision of statutes
on the licensing and regulation of certain professions and business practices.’ In repealing and
codifying former article 2372p-3 of the Revised Civil Statutes as Occupations Code chapter 1704,
the legislature omitted the language contained in section 6(f)(2) of former article 2372p-3 that
required an applicant for licensure to submit an independent appraisal of property executed in trust
to the county bail bond board.2 Another provision that required the applicant to submit the current
tax appraisal prepared for the taxing unit was included in the Occupations Code. See TEX. OCC.
CODE ANN. 8 1704.155 (Vernon 2001). The value of bonds that a licensee may write is based on the
value of the security he or she has provided the county bail bond board. The Bexar County Bail
Bond Board asks whether it may still consider an independent appraisal of real property that will
provide security for the bail bond business, and if not, whether it may consider only the appraisal
received from the county appraisal district in determining real property value.3 We conclude that
the applicant for a license may still submit an independent appraisal of real property to the Bexar
County Bail Bond Board, and the board may still consider the independent appraisal in determining
the value of the real property.4



         ‘See Act of May 13, 1999,76th   Leg., R.S., ch. 388, 0 1, 1999 Tex. Gen. Laws 143 1,2277-91,

        *Compare Act of May 17,1989,71st      Leg., R.S., ch. 951, $ 1,1989 Tex. Gen. Laws 4016,4017, with Act of
May 13, 1999,76th Leg., R.S., ch. 388, 9 1, sets. 1704.001-.306, 1999 Tex. Gen. Laws 1431,2277-91.    See also Act
of May 13, 1999, 76th Leg., R.S., ch. 388, 6 6, 1999 Tex. Gen. Laws 1431,2439-40 (repealing article 2372-p of the
Revised Civil Statutes.

        ‘See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable John
Cornyn, Attorney General of Texas at 1 (Nov. 22,200O) (on file with Opinion Committee) [hereinafter Request Letter].

        4House Bill 353 1, filed March 9,2001,   is pending before the Seventy-seventh   Texas Legislature    and proposes
                                                                                                             (continued...)
The Honorable        Susan D. Reed - Page 2                    JC-0366




         Chapter 1704 of the Occupations Code establishes a county bail bond board in each county
with a population of 110,000 or more and authorizes the creation of a board in a county with a
population of less than 110,000. See TEX.OCC.CODE ANN. $8 1704.05 1, ,052 (Vernon 2001). The
board is responsible for issuing licenses authorizing individuals and corporations to conduct a bail
bond business. Id. 6 1704.101(5), (6), (7). The provision you inquire about applies to individual and
not corporate applicants for licensure as bail bond sureties, and we will limit our discussion
accordingly.

         To be eligible for a bail bond license, a person must, among other requirements, “possess the
financial resources required to comply with Section 1704.160” of the Occupations Code, the
provision establishing security requirements that a licensed bail bond surety must meet. See id.
$9 1704.152(a)(3), .160; see also id. 8 1704.204 (surety required to pay judgment on forfeiture of
bail bond). Section 1704.160 provides that an individual applicant for a license may (1) “deposit
with the county treasurer a cashier’s check, certificate of deposit, cash, or cash equivalent” or (2)
“execute in trust to the board” nonexempt              real property that the applicant owns.      Id.
8 1704.16O(a)( 1). Each kind of security must have the minimum value required by statute, see id.
4 1704.160(b), (c), and the total value of bail bonds that a licensee may execute is limited to a
multiple of the amount of security deposited or executed under section 1704.160.               See id.
6 1704.203.5 Thus, the value of the security provided by a licensee directly affects the total value
of bail bonds that the licensee may issue.

         An applicant for licensure who intends to execute deeds to real property in trust to the board
must provide certain inforrnation for each parcel. Among other information, the applicant must
provide:

                            a current statement from each taxing unit authorized to impose
                    taxes on the property showing:

                              (A)    that there is no outstanding tax lien against the property;
                    and

                            (B) the net value of the property according to a current
                    appraisal made by a real estate appraiser who is a member in good


          4(. . .continued)
the following amendment       to section 1704.160(c)   of the Occupations   Code:

                         (c) The nronertv executed in trust under Subsection (a) ( 1) (B) must be valued
                    in the amount indicated by the appraisal district in which the propertv is located.

          ‘See Act of May 25,1999,76th      Leg., R.S., ch. 1096,§ 1,1999 Tex. Gen. Laws 3962. This act amends former
article 2372p-3, subsections 6(g) and (h), of the Revised Civil Statutes, which is now section 1704.203 of the
Occupations Code, and adds subsections 6(i) through (k) to former article 2372p-3 without reference to its repeal and
nonsubstantive    revision by the 76th Texas Legislature as chapter 1704 of the Occupations Code. An amendment to a
statute that is repealed by a code is preserved and given effect as part of the code provision that amended the statute.
See TEX. GOV’T CODE ANN. 9 3 11.03 l(c) (Vernon 1998).
The Honorable        Susan D. Reed - Page 3                JC-0366




                    standing of a nationally recognized professional appraiser society or
                    trade organization that has an established code of ethics, educational
                    program, and professional certification program.

TEX. Oct. CODE ANN. 0 1704.155(2) (Vernon 2001).

         Under former article 2372p-3, when an application was conditionally approved, an applicant
planning to use real property as security was required to execute deeds to real property in trust to the
board “which property shall be valued in the amount indicated on an appraisal by a real estate
appraiser” with the qualifications that section 1704.155(2) requires for the appraiser for the taxing
unit! The bill that adopted the Occupations Code omitted the italicized language on valuing real
property that was included in former article 2372p-3. Under chapter 1704 of the Occupations Code,
when an application is conditionally approved, an individual applicant who wishes to use real
property as security must “execute in trust to the board each deed to the property listed on the
application.” TEX. Oct. CODE ANN. 9 1704.16O(a)( 1) (V emon 2001). There is no reference in
section 1704.160 or any other provision of chapter 1704 to valuing the property in the amount
indicated on an appraisal by a real estate appraiser. Despite the apparently inadvertent omission of
this language, we must give effect to chapter 1704 as adopted by the legislature. See Fleming Foods
of Tex., Inc. v. Rylander, 6 S.W.3d 278,286 (Tex. 1999).

        We turn to the questions you submit on behalf of the Bexar County Bail Bond Board. You
ask whether there is still any statutory basis for considering an individual bondsman’s independent
appraisals of real property executed in trust to the board for the purpose of determining property
value. See Request Letter, supra note 3, at 1. If not, you ask whether a county bail bond board is
now required to use the taxing unit’s valuation as submitted by an applicant under section
1704.155(2) of the Occupations Code to determine real property values in setting bond limits. See
id.

        Chapter 1704 of the Occupations Code assumes that the board will be able to determine the
value of real property executed in trust to it. Section 1704.160(c) states that “[t]he total value of the
property executed in trust . . . may not be less than $50,000,” or may “not be less than $10,000 in
a county with a population of less than 250,000.” TEX. OCC. CODE ANN. 8 1704.160(c) (Vernon
2001). Before a hearing on an application for licensing, the board or its representative “shall
determine whether the applicant . . . possesses the financial resources to comply with Section
1704.160.” Id. 8 1704.157(l); see id. 0 1704.152 (individual must possess financial resources
required to comply with section 1704.160 to be eligible for a license). A license holder may not
execute bail bonds in a total amount that exceeds a multiple of the value of the security deposited
or executed by the license holder under section 1704.160. See id. 0 1704.1 60.7 At any time,
moreover, a license holder may increase his or her limit on bail bonds by depositing or executing



            %ee Act of May 17, 1989,71st Leg., R.S., ch. 951, 3 1, 1989 Tex. Gen. Laws 4016,4017      (emphasis   added)
(amending     section 6(f)(2) of former article 2372p-3, Revised Civil Statutes).

            ‘See Act of May 25, 1999,76th   Leg., R.S., ch. 1096, fj 1, 1999 Tex. Gen. Laws 3962; see also supra note 5.
The Honorable    Susan D. Reed - Page 4            JC-0366




additional security. See id. 8 1704.203(d); see also id. 0 1704.206 (licensee must deposit or execute
additional security if a final judgment on forfeiture of bail bond is paid from existing security). For
these provisions to have effect, the board must be able to ascertain the value of the real property.

         The board may not require the applicant to submit an independent appraisal of his or her real
property, because it has no authority to impose requirements in addition to statutory requirements
on applicants for licensure as bail bond sureties. See Bexar County Bail Bond Bd. v. Deckard, 604
S.W.2d 214,216 (Tex. Civ. App.-San Antonio 1980, no writ) (board could not require applicants
for licensure to file letter of credit in the amount of $100,000); Tex. Att’y Gen. Op. No. JC-0128
(1999) (board may not require corporate surety to furnish a letter of credit for each of its licensed
agents in the county); Tex. Att’y Gen. LO-97- 102, at 2 (board may not require individual applicant
to provide either a title opinion or title insurance for real property conveyed in trust). Nor may the
board obtain an independent appraisal of the property. See Walstad v. Dallas County Bail Bond Bd.,
996 S.W.2d 3 14, 3 17 (Tex. App.-Dallas          1999, no pet.) (board has no authority to obtain an
independent appraisal of property submitted by applicant).

         While the board lacks statutory authority to require an applicant for licensure to submit
independent appraisals of real property, the applicant is not barred from voluntarily submitting
evidence of the value of his or her property, including an appraisal by an independent appraiser. The
board may consider that information in determining the value of the real property to serve as
security, pursuant to its authority to determine whether the applicant possesses the necessary
financial resources and to conduct a hearing on the application after making this determination. See
TEX.Oct. CODEANN. 8s 1704.157(l), .158(a) (Vernon 2001). During the hearing, the board may
submit to the applicant or the applicant’s agent questions relevant to its decision on the application,
and the applicant may present oral and documentary evidence. See id. 6 1704.158(b). The grant of
power to conduct hearings and make determinations is a grant of adjudicative power, which is
distinguished from the board’s grant of rule-making or legislative power. See Deckard, 604 S. W.2d
at 216-17 (administrative powers of county bail bond board). See generally Garcia-Marroquin v.
Nueces County Bail Bond Bd., 1 S.W.3d 366,374 (Tex. App.- Corpus Christi 1999, no pet.); Harris
County Bail Bond Bd. v. Burns, 790 S.W.2d 862, 864 (Tex. App.-Houston            [ 14th Dist.] 1990, writ
denied). Thus, while the board may not exercise its rule-making power to impose additional
qualifications or requirements upon the applicant, it may, in the exercise of its adjudicative power,
consider evidence relevant to the applicant’s compliance with the qualifications established by
statute. Accordingly, if an individual bondsman voluntarily provides a county bail bond board with
independent appraisals of real property executed in trust to the board, the board may consider this
information in determining the value of the property. But see supra note 4. In view of our answer
to your first question, we need not answer your second question.
The Honorable       Susan D. Reed - Page 5                    JC-0366




                                                 SUMMARY

                           Absent statutory authority, a county bail bond board may not
                   require an applicant for licensing to submit an independent appraisal
                   of real property to be executed in trust to the board as security for
                   writing bail bonds .8 The applicant for a license may voluntarily
                   submit to a county bail bond board an independent appraisal or other
                   evidence of the value of his or her property, and the board may
                   consider the independent appraisal or other evidence in determining
                   the value of the applicant’s real property.

                                                         Yo     s ve    truly,



                                                       4&!!!!
                                                         JOIfN    CORNYN
                                                         Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee




          8House Bill 3 53 1, filed March 9,200 1, is pending before the Seventy-seventh   Texas Legislature   and proposes
the following amendment to section 1704.160(c) of the Occupations Code:

                   (c) The proper@ executed in trust under Subsection (a) ( 1) (B) must be valued in
                   the amount indicated by the appraisal district in which the property is located.
