   OPPlCE   OF THE   ATTORNEY   GENERAL   STATE   OF TEXAS

   JOHN CORNYN




                                                  February 26, 1999



The Honorable Ken Oden                                  Opinion No. JC-0008
Travis County Attorney
P.O. Box 1748                                           Re: Whether section 15(g) of the Bail Bond Act,
Austin, Texas 78767                                     TEX. REV. CIV. STAT. ANN. art. 2372p-3 (Vernon
                                                        Supp. 1999), prohibits an attorney from advertising
                                                        in the Bail Bond section of the telephone book
                                                        yellow pages (RQ-1219)


Dear Mr. Oden:

         On behalf of your office and the Travis County Bail Bond Board, you ask whether section
15(g) of the Bail Bond Act, TEX. REV. CIV. STAT. ANN. art. 2372p-3 (Vernon Supp. 1999) (the
“Act”), which prohibits persons who are not licensed under the Act from advertising as bondsmen,
bars an attorney from advertising in the Bail Bond section of the telephone book yellow pages. We
address only strictures ofthe Act. We do not address any other statutory provisions or rules that may
govern attorney advertising, such as the Texas Disciplinary Rules of Professional Conduct. As
explained below, attorneys acting pursuant to section 3(e) of the Act, which excepts attorneys from
the Act’s licensing requirements     and permits them to execute bail bonds in certain limited
circumstances,   do not act as bondsmen within the meaning of the Act. An attorney who merely
advertises services he or she is authorized to provide under section 3(e) does not advertise as a
bondsman contrary to section 15(g). For this reason, section 15(g) does not preclude an attorney
from advertising in the Bail Bond section of the telephone book yellow pages as a matter of law.
Some advertisements may run afoul section 15(g) as a matter of fact. The determination whether
a particular advertisement violates section 15(g), however, involves fact questions and is beyond the
scope of an attorney general opinion.

         In counties subject to the Act, no person may act as a bondsman except a person who is
licensed under the Act or, significantly, a person who is licensed to practice law in Texas who
satisfies the requirements of section 3(e) of the Act. See id. § 3(a). Section 3(e) provides a very
limited exception for attorneys who are not licensed under the Act to execute bail bonds for their
clients:

                  Persons licensed to practice law in this state may execute bail bonds or
              act as sureties for persons they actually represent in criminal cases without
              being licensed under this Act, but they are prohibited from engaging in the
              practices made the basis for revocation of license under this Act and if found
The Honorable   Ken Oden - Page 2                (X-0008)




           by the sheriff to have violated any term of this Act, may not qualify thereafter
           under the exception provided in this subsection unless and until they come
           into compliance with those practices made the basis of revocation under this
           Act.

Id. § 3(e) (emphasis added). Thus, an attorney in a county subject to the Act who is not licensed as
a bondsman may not execute a bail bond for a person who is not his or her client. See Tex. Att’y
Gen. LO-93-63 (attorney may execute bail bond for person who is not his or her client only if
attorney is licensed as bondsman). Section 15(g), the provision at the heart of your query, provides
that “[n]o person may advertise as a bondsman who does not hold a valid license under this Act.”
TEX. REV. CIV. STAT. ANN. art. 2372p-3,§ 15(g) (V emon Supp. 1999). A violation of section 15(g)
is a Class C misdemeanor.    Id. 5 15(i).

         You ask about the application of section 15(g) to attorneys who execute bail bonds or act as
sureties under section 3(e). We understand that the Travis County Bail Bond Board has been urged
to disqualify all such attorneys who have run advertisements in the Bail Bond section of the
telephone book yellow pages. Pending this opinion, you have advised the board that an attorney who
is not licensed as a bondsman may advertise in the Bail Bond section of the telephone book yellow
pages if the advertisement contains the following disclaimer:      “Permitted by law to execute bail
bonds for persons actually represented in criminal cases.” Briefs submitted to this office suggest that
section 15(g) precludes an attorney from advertising in the Bail Bond section of the telephone book
yellow pages as a matter of law. We disagree that section 15(g) can be read this broadly.

         Significantly, section 15(g) provides that “[n]o person may advertise as a bondsman who
does not hold a valid license under this Act.” Id. 5 15(g) (emphasis added). The term “bondsman”
is defined by the Act to mean “any person who for hire orfor any compensation deposits any cash
or bonds or other securities, or executes as surety or cosurety any bond for other persons.” Id. 5 2(2)
(emphasis added). An attorney who executes a bail bond or acts as surety for a person the attorney
actually represents in a criminal case as permitted by subsection 3(e) does not fall within the
definition of the term “bondsman” because the attorney does not execute the bond or act as surety
“for hire or for any compensation.”     Under section 3(e), an attorney is permitted to execute a bond
only for a client the attorney “actually represent[s] in [a] criminal case[],” id. 5 3(e); the execution
of the bond must be merely ancillary to the representation.       The section 3(e) exception does not
permit an attorney to receive compensation merely for executing a bond. While an attorney
operating under section 3(e) may be compensated for representing the client, the fact that an attorney
is compensated       for representing the client in the criminal case does not make the attorney a
“bondsman” for purposes of the Act. In sum, an attorney properly acting pursuant to section 3(e)
does not act as a bondsman within the meaning of the Act.

        Because an attorney properly acting pursuant to section 3(e) does not act as a bondsman, an
attorney who merely advertises a service he or she is authorized to provide under section 3(e) does
The Honorable     Ken Oden - Page 3                        (X-0008)




not advertise as a bondsman contrary to section 15(g). Section 3(e) permits an attorney to execute
bail bonds for clients. Thus, an advertisement does not cross over the line drawn by sections 3(e)
and 15(g) merely because it appears in the Bail Bond section of a telephone book yellow pages. On
the other hand, we do not believe that an advertisement that otherwise crosses over this line is
necessarily saved by a disclaimer such as the one you have suggested. Ultimately, however, the
determination of whether a particular advertisement impermissibly advertises services for which a
bail bond license is required or merely advertises a service excepted from licensure by section 3(e)
would involve fact questions and is therefore beyond the scope of an attorney general opinion.’

         Finally, we note that the bail bond board in your county may have been advised that it is
authorized to take action against attorneys that it determines have violated section 15(g) of the Act.
The board lacks such authority. Section 15 of the Act sets forth various acts that are subject to
prosecution as misdemeanors; it does not vest any special enforcement authority in county bail bond
boards. Furthermore, section 3(e) provides that attorneys who execute bail bonds for clients “are
prohibited from engaging in the practices made the basis for revocation of license under this Act and
if found by the sherzff to have violated any term of this Act, may not qualify thereafter under the
exception provided in this subsection unless and until they come into compliance with those
practices made the basis of revocation under this Act.” Id. 5 3(e) (emphasis added).’ Section 3(e)



         ‘See, e.g., Tex. Att’y Gen. Op. Nos. DM-383 (1996) at 2 (questions of fact are inappropriate for opinion
process), DM-98 (1992) at 3 (questions of fact cannot be resolved in opinion process), H-56 (1973) at 3 (improper for
Attorney General to pass judgment on matter that would be question            for jury determination),   M-187 (1968) at 3
(Attorney General cannot make factual findings).

         ‘Section 9(b) of the Act provides the following   bases for license revocation:

                  (1) violation of a provision of this Act or a rule prescribedby the board during the term
             of the license sought to be suspended 61revoked OTduring any prior licensing period,

                  (2) fraudulently obtaining a license under     the provisions of this Acf making a false
             statement or misrepresentation  in an application   for an original or renewal license or in any
             hearing before the board, or refusing to answer      any question submitted by the board in a
             hearing relevant to the license or the conduct or   qualifications of the licensee 01 applicant;

                  (3) final conviction under the laws of this or any other state OI of the United States of
             a misdemeanor involving moral hrpitude 01 of a felony committed after the effective date
             of this Act;

                  (4) being adjudged bankrupt     or becoming    insolvent;

                  (5) being adjudged mentally    incompetent;

                  (6) failing to pay within 30 days any fmal judgment rendered on any forfeited bond in
              any court of competent jurisdiction within the county of the licensee;

                  (7) paying of commissions     OI fees OI dividing   commissions    or fees or offering to pay
                                                                                                                  (continued...)
The Honorable Ken Oden - Page 4                             (Jc-0008)




of the Act vests the authority to determine whether an attorney is eligible to execute a bail bond
under section 3(e) in the sheriff. A county bail bond board is not authorized to make this
determination.   See Tex. Att’y Gen. Op. No. N-901 (1988) at 3 (concluding that determination of
attorney’s compliance with article 2372p-3 for purposes of section 3(e) is matter for sheriff, not bail
bond board); see also Tex. Att’y Gen. Op. No. DM-483 (1998) at 5 (stating that 1981 amendments
to Act indicate that legislature intends sheriffs to exert authority over bonds executed by attorneys
under section 3(e)). For this reason, the determination           whether a particular advertisement
impermissibly advertises services for which a bail bond license is required or merely advertises a
service excepted from licensure by section 3(e) is within the authority of the county sheriff> and is
beyond the authority of a bail bond board.




        ‘(...continued)
               or divide commissions or fees with any person, company,      firm, or corporation       not licensed
               under this Act to execute bonds;

                  (8) soliciting   bail bond business   in any building   where prisoners     are processed       or
             confined;

                   (9) recommending    to any client the employment       of a particular   attorney     or fnm of
             attorneys in a criminal case;

                  (10) falsifying any records required to be maintained under this Act, failing to keep the
             records, or failing promptly to permit the inspection of the records at any time requested by
             the board or its representatives or agents;

                   (11) operating as a bondsman   while the license is suspended     or after it has expired and
              before it is renewed; and

                   (I 2) on more than one occasion failing to maintain the minimum amount of security
              required by this Act or misrepresenting to any official or employee of the official the limit
              supported by the amount of security to obtain the release of any person on bond.

TEX. REV. CIV. STAT. ANN. art. 2372p-3,§ 9(b) (Vernon Supp. 1999); see also Tex. Att’y Gen. Op. No. DM-483 (1998)
at 5.6 & n. 17 (discussing applicability of bases for bail bond license revocation to attorneys who act under section 3(e)
exception).

          ‘For a discussion of limitations on the authority of a sheriff to disqualify an attorney from executing bonds
under section 3(e), see Price v. Carpenter, 758 F. Supp. 403,406 (N.D. Tex. 1991) (holding that attorneys’ entitlement
to execute bail bonds for clients they represent in criminal cases is protected property interest).
The Honorable   Ken Oden - Page 5                (JC-0008)




                                       SUMMARY

               An attorney who merely advertises that he or she is permitted by law to
           execute bail bonds for persons he or she actually represents in criminal cases
           does not violate section 15(g) of the Bail Bond Act, TEX. REV. CIV. STAT.
           ANN. art. 2372p-3 (Vernon Supp. 1999). Whether aparticularadvertisement
           runs afoul of section 15(g) involves questions of fact that cannot be resolved
           in an attorney general opinion.




                                              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
