Can a bail bondsman's ad in a county jail magazine count as illegal solicitation in Texas?

Plain-English summary

Susan D. Reed, the Bexar County Criminal District Attorney, asked the Attorney General about a magazine a publisher wanted to distribute inside Bexar County jails. The magazine carried articles for inmates plus advertisements from lawyers and bail bond licensees, and the publisher offered a bail bond licensee the chance to buy exclusive advertising rights that would shut out every other licensee's ad. The Bexar County Bail Bond Board worried that an exclusive deal like that hurt inmates' ability to make an informed choice of a surety, and it wanted to know whether the advertising could violate the anti-soliciting rule in Occupations Code section 1704.304(c), and whether advertising could ever amount to solicitation under that statute.

Section 1704.304(c) says a bail bond surety or agent may not solicit bonding business in a police station, jail, prison, detention facility, or other place of detainment. The word "solicit" is not defined, so it ordinarily takes its plain meaning read in context. The Attorney General noted that an earlier opinion, GA-0502, had said advertising and solicitation are distinct concepts but had not decided whether advertising could ever be prohibited solicitation, and that the Legislature uses "solicit" differently across statutes, sometimes excluding advertising and sometimes including it.

Reading section 1704.304(c) in the context of the bail-bond regulatory scheme, the Attorney General concluded that, unlike the barratry statutes, this provision does not exclude advertisements or limit itself to in-person or telephone solicitation; it simply bars solicitation in places of detention. Because a court had observed that the provision does not restrict the prohibited solicitation to any particular mode of communication or require the surety's physical presence, the AG concluded that a court could find, depending on the facts, that a licensee's exclusive advertising in a jail magazine distributed to pretrial detainees constitutes unlawful solicitation under section 1704.304(c). It did not decide whether any particular advertisement actually crosses that line.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Bexar County Criminal District Attorney and Bail Bond Board (as the opinion described it): The opinion answered the Board's threshold question, that advertising can, in the right circumstances, be solicitation under section 1704.304(c), so an exclusive jailhouse advertising arrangement is not categorically outside the statute. It told the Board that section 1704.304(c) is not limited to in-person or telephone contact and does not contain an advertising exception, so a court could treat exclusive advertising distributed to detainees as prohibited solicitation. The opinion was careful to say it was not deciding whether the specific exhibits the district attorney submitted violated the statute, leaving that fact-bound question to a court.

Common questions

Can a bail bondsman's advertisement be treated as illegal jailhouse solicitation?
According to the opinion, yes, potentially. A court could conclude, depending on the facts, that a bail bond licensee's exclusive advertising in a magazine distributed to pretrial detainees in the county jail is unlawful solicitation under section 1704.304(c).

Doesn't the anti-solicitation statute only cover in-person or phone contact?
No. The opinion explained that, unlike the barratry statutes, section 1704.304(c) does not limit itself to in-person or telephonic solicitation and does not create an exception for advertisements.

What does section 1704.304(c) actually prohibit?
The opinion quoted the statute as barring a bail bond surety or agent from soliciting bonding business in a police station, jail, prison, detention facility, or other place of detainment for people in law enforcement custody.

Did the AG say this particular magazine arrangement was illegal?
No. The opinion expressly declined to decide whether the specific advertisements submitted violated the statute, treating that as a fact question for a court.

Background and statutory framework

The opinion read section 1704.304(c) against the rule that undefined statutory terms get their ordinary meaning unless context shows otherwise, citing the Texas Supreme Court's decision in TGS-NOPEC Geophysical Co. v. Combs, and against the surrounding statutory landscape, citing the Texas Supreme Court's decisions in LTTS Charter Sch., Inc. v. C2 Constr., Inc. and Presidio Indep. Sch. Dist. v. Scott, then surveyed how "solicit" is used elsewhere, in the barratry statutes (Penal Code sections 38.01(11) and 38.12, with Bailey v. Morales noting a related constitutional limit), in Estates Code section 1356.001(1), and in Occupations Code sections 402.501(15) and 952.003(4).

The regulatory context came from chapter 1704: a bail bond board supervises and regulates each phase of the bonding business (section 1704.101(3); the Texas Supreme Court's decision in Pruett v. Harris Cnty. Bail Bond Bd.), "bonding business" includes solicitation (section 1704.001(4)), and a board may regulate advertising and solicitation within constitutional limits (section 1704.109(a); the Fifth Circuit's decision in Pruett v. Harris Cnty. Bail Bond Bd. declaring portions of section 1704.109 unconstitutional). Chapter 1704 shows special concern about places of confinement, requiring a list of licensed sureties to be displayed where prisoners are held (section 1704.105(b)) and barring jailers and officers from recommending a particular surety (section 1704.304(b)). For the mode-of-communication point, the opinion cited Webb v. State, a Fort Worth court of appeals memorandum decision, and it referred back to its own prior opinion GA-0502.

Citations

Cases:

• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)
• LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011)
• Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010)
• Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452-53 (Tex. 2008)
• Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403, 416 (5th Cir. 2007)
• Webb v. State, No. 02-02-432-CR, 2003 WL 21666630, at *1 (Tex. App.-Fort Worth Jul. 17, 2003, pet. ref'd)
• Bailey v. Morales, 190 F.3d 320, 325-26 (5th Cir. 1999)

Statutes:

• Tex. Occ. Code Ann. § 1704.304(c) (West 2012); § 1704.304(b); § 1704.101(3); § 1704.001(4); § 1704.109(a); § 1704.105(b)
• Tex. Occ. Code Ann. § 402.501(15) (West 2012); § 952.003(4)
• Tex. Penal Code Ann. §§ 38.01(11), 38.12 (West 2011)
• Tex. Est. Code Ann. § 1356.001(1) (West 2012)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0502 (2007) at 2

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1019
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1019.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 26, 2013

The Honorable Susan D. Reed Opinion No. GA-1019
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center Re: Whether advertising by a bail bond licensee in
300 Dolorosa, Fifth Floor a magazine that is distributed to pretrial detainees
San Antonio, Texas 78205-3030 held in the county jail, when the licensee has an
exclusive agreement that no advertisements from
other licensees will appear in the magazine, could
ever constitute unlawful "solicitation" in violation
of section 1704.304(c) of the Texas Occupation
Code (RQ-1118-GA)

Dear Ms. Reed:

You ask whether advertising by a bail bond licensee in a magazine that is distributed to pretrial detainees held in the county jail, when the licensee has an exclusive agreement that no advertisements from other licensees will appear in the magazine, could ever constitute unlawful "solicitation" in violation of section 1704.304(c) of the Occupations Code.[1] You inform us that a publisher seeks to distribute in Bexar County detention facilities a magazine that contains articles of special interest to jail inmates as well as advertisements by lawyers and bail bond licensees. Request Letter at 1-2. You note that the publisher offers an option for a bail bond licensee to purchase exclusive advertising rights, thereby excluding the advertisements of any other licensee in the area. Id.

You inform us that the Bexar County Bail Bond Board (the "Board") is concerned that such an exclusive arrangement prejudices the ability of jail inmates to make informed decisions in the choice of a surety. Id. at 4. You further state that the Board wishes to know whether advertising pursuant to an exclusive arrangement may violate the anti-soliciting provisions of section 1704.304(c) of the Occupations Code. Id. at 2. The Board has also asked, in clarification of an attorney general opinion, whether advertising could ever constitute solicitation under the statute. Id. at 1-2 (citing Tex. Att'y Gen. Op. No. GA-0502 (2007)).

Section 1704.304(c) of the Occupations Code provides: "A bail bond surety or an agent of a bail bond surety may not solicit bonding business in a police station, jail, prison, detention facility, or other place of detainment for persons in the custody of law enforcement." TEX. OCC. CODE ANN. § 1704.304(c) (West 2012). Central to the meaning of the statute is the word "solicit," which is not a defined term. "Undefined terms in a statute are typically given their ordinary meaning," unless "a different or more precise definition is apparent from the term's use in the context of the statute." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).

This office noted in Attorney General Opinion GA-0502 that solicitation and advertising are distinct concepts, but the opinion did not determine whether advertising could ever constitute a solicitation prohibited by 1704.304(c). Tex. Att'y Gen. Op. No. GA-0502 (2007) at 2.[2] Indeed, when the Legislature has used the word "solicit" in statutes, the word's precise meaning varies depending on the purpose of the statute, sometimes expressly excluding or including certain forms of advertising. Compare TEX. PENAL CODE ANN. §§ 38.01(11), 38.12 (West 2011) (defining "solicit employment," for purpose of barratry statutes, as certain in-person or telephonic communications; expressly excluding "advertisements ... through public media"),[3] with TEX. EST. CODE ANN. § 1356.001(1) (West 2012) (providing that "'Advertise' means to solicit or induce the purchase of consumer goods or services through electronic or print media, including: (A) radio; (B) television; (C) computer; or (D) direct mail"), TEX. OCC. CODE ANN. § 402.501(15) (West 2012) (providing that a hearing instrument licensee who "solicits a service by advertising that is false or misleading" is subject to discipline), and id. § 952.003(4) (excluding from definition of "lawyer referral service" lawyers who jointly "advertise ... to solicit clients for those lawyers"). Thus, to determine whether a licensee's advertisement could ever violate the anti-solicitation prohibition in section 1704.304(c), we must examine the plain language of the statute "aided by the interpretive context provided by 'the surrounding statutory landscape.'" LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011) (quoting Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010)).

The anti-solicitation prohibition of section 1704.304(c) of the Occupations Code appears in the context of a statutory framework authorizing a bail bond board to "supervise and regulate each phase of the bonding business in the county." TEX. OCC. CODE ANN. § 1704.101(3) (West 2012); see generally Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452-53 (Tex. 2008). "Bonding business" is defined as "the solicitation, negotiation, or execution of a bail bond by a bail bond surety." TEX. OCC. CODE ANN. § 1704.001(4) (West 2012). A board is specifically authorized to regulate, within constitutional bounds, bail bond surety advertising and solicitation. Id. § 1704.109(a); see also Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403, 416 (5th Cir. 2007) (declaring portions of section 1704.109 unconstitutional). Chapter 1704 reflects a special concern about jails and other places of confinement, requiring a list of each licensed surety and agent in a county to "be displayed at each location where prisoners are examined, processed, or confined." TEX. OCC. CODE ANN. § 1704.105(b) (2012). Moreover, jailers, law enforcement officers, and other public officials are prohibited from recommending a particular bail bond surety. Id. § 1704.304(b).

Unlike the barratry statutes, section 1704.304(c) does not expressly limit its prohibition to in-person or telephonic solicitations, nor does it create an express exception for advertisements. See id. Rather, section 1704.304(c) is limited to solicitations "in a police station, jail, prison, detention facility, or other place of detainment for persons in the custody of law enforcement." Id. § 1704.304(c). A court has observed that section 1704.304(c) does not limit prohibited solicitations to any specific mode of communication nor require a surety or agent's physical presence in the jail, provided a solicitation of business has occurred. See Webb v. State, No. 02-02-432-CR, 2003 WL 21666630, at *1 (Tex. App.-Fort Worth Jul. 17, 2003, pet. ref'd) (mem. op., not designated for publication). Thus, to answer your question, a court could conclude, depending on the particular facts of the case, that a bail bond licensee's exclusive advertising in a magazine that is distributed to pretrial detainees held in the county jail constitutes unlawful "solicitation" in violation of section 1704.304(c) of the Texas Occupations Code.[4] Whether any particular jailhouse advertisement constitutes an illegal solicitation is not a question we address here.

SUMMARY

A court could conclude, depending on the particular facts of the case, that a bail bond licensee's exclusive advertising in a magazine that is distributed to pretrial detainees held in the county jail constitutes unlawful "solicitation" in violation of section 1704.304(c) of the Texas Occupation Code.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Susan D. Reed, Bexar Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Mar. 28, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Answering the specific question asked, the opinion concluded that "section 1704.304(c) does not prohibit a bail bond licensee's display of advertising or licensee information on a vehicle in the parking lot of a county jail." Tex. Att'y Gen. Op. No. GA-0502 (2007) at 2.

[3] But see Bailey v. Morales, 190 F.3d 320, 325-26 (5th Cir. 1999) (holding that an amendment to Penal Code section 38.12(a)(3) is unconstitutional as applied to chiropractors).

[4] We do not address whether the particular exhibits you have submitted may violate section 1704.304(c) of the Occupations Code, nor do we speculate about any other issues that might arise from enforcement of the prohibition.