Could a Texas county bail bond board require a sheriff's or district attorney's designee to work in that official's office or meet added knowledge requirements?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-251: Bail Board Designee Rules
Plain-English summary
The El Paso County Bail Bond Board adopted a rule requiring designees to be knowledgeable about the statutory member's office or to be an employee who could be considered an assistant. The county attorney asked whether the board could define or limit "designee" that way under article 2372p-3. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
JM-251 concluded that the rule exceeded the board's delegated authority. It said the board could not require a sheriff's or district attorney's designee to be "an employee of the office" or a person knowledgeable about matters within that office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
The statute imposed specific qualifications on some other designees. It required, for example, particular judges or a commissioners court member for designated seats, but included no comparable qualification for the sheriff's or district attorney's designee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
The opinion treated that contrast as deliberate. It said the legislature intended "to retain for itself the determination of the specific qualifications necessary for membership" and did not give local boards power to add more. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG 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.
Common questions
Could the bail bond board require the sheriff's designee to be a sheriff's-office employee?
No. JM-251 said the board lacked authority to require the sheriff's designee to be "an employee of the office of the appointing official." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Could the board require the district attorney's designee to have special knowledge of that office?
No. The opinion rejected a rule requiring a designee to be "a person knowledgeable of the matters within the statutory member's office." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Didn't the board have general rulemaking power?
Yes, but only within the statute. Section 5(f)(1) allowed rules necessary to implement the act, while JM-251 said agency rules may not impose added "burdens, conditions, or restrictions" beyond or inconsistent with the legislature's grant. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Why did the statute's treatment of other designees matter?
Sections 5(b)(2) through (4) stated exact qualifications for certain judicial and commissioners court designees. The opinion said express qualifications for those seats implied exclusion of added qualifications for the sheriff's and district attorney's designees. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Background and statutory framework
Article 2372p-3, section 5(b), listed the county bail bond board's members, including the sheriff or designee, specified judicial and county designees, the district attorney or designee, a licensed bondsman elected by county licensees, and a justice of the peace. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Section 5(f)(1) authorized powers incidental or necessary to administer the act, regulate the bonding business, enforce the act within the county, and prescribe necessary implementing rules. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
JM-251 applied the rule that an agency may adopt constitutional rules within its granted power and proper procedure, but may not add conditions the legislature did not authorize. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Citations and references
- Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App. - San Antonio 1980, no writ), Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d 702, 706 (Tex. 1968), and Kee v. Baber, 303 S.W.2d 376 (Tex. 1957), supported limits on agency rulemaking. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
- City of Sherman v. Public Utility Commission, 643 S.W.2d 681, 684 (Tex. 1983), appeared in the discussion of legislative intent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
- Peterson v. Calvert, 473 S.W.2d 314, 317 (Tex. Civ. App. - Austin 1971, writ ref'd n.r.e.), Ex parte McIver, 586 S.W.2d 851, 856 (Tex. Crim. App. 1979), and Attorney General Opinion MW-324 (1981) supported the rule that an agency cannot extend its statutory powers by its own rules. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0251
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0251.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
December 13, 1984
Honorable Luther Jones
El Paso County Attorney
201 City-County Building
El Paso, Texas 79901
Opinion No. JM-251
Re: Authority of the El Paso Bail Bond Board to define the term "designee" in article 2372p-3, V.T.C.S.
Dear Mr. Jones:
You inquire whether the El Paso County Bail Bond Board has authority to adopt a rule which defines or limits the term "designee" as it appears in article 2372p-3, section 5(b), V.T.C.S. We conclude that the board's adoption of a rule that adds additional qualifications for certain membership on the board exceeds the powers delegated to the board by the legislature.
Section 5(b) of article 2372p-3 provides the following:
(b) The County Bail Bond Board shall be composed of the following persons:
(1) the county sheriff or his designee;
(2) a district judge of the county having jurisdiction over criminal matters designated by the presiding judge of the administrative judicial district;
(3) the county judge or a member of the commissioners court designated by the county judge;
(4) a judge of a county court or a county court at law in the county having jurisdiction over criminal matters designated by the commissioners court;
(5) the district attorney or his designee;
(6) a licensed bondsman, licensed in the county, elected by other county licensees; and
(7) a justice of the peace.
You advise us that the El Paso County Bail Bond Board adopted a rule to limit a "designee" on that board as follows:
Designees to the Bail Bond Board shall be a person who is knowledgeable of the matters within the statutory member's office and/or an employee of that department who could be considered an assistant.
Article 2372p-3, section 5(f)(1) allows a county bail bond board
[t]o exercise any powers incidental or necessary to the administration of this Act, to supervise and regulate all phases of the bonding business and enforce this Act within the county, and to prescribe and post any rules necessary to implement this Act. . . .
In exercising the rulemaking authority granted by the legislature, an agency may promulgate rules and regulations which are constitutional, are within the granted power, and are adopted in accordance with proper procedure. However, rules and regulations adopted by an agency in this state may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with the authority granted to the agency by the legislature. See Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App. - San Antonio 1980, no writ). See also Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d 702, 706 (Tex. 1968); Kee v. Baber, 303 S.W.2d 376 (Tex. 1957).
A cardinal rule of statutory construction requires the courts to ascertain and be guided by the intention of the legislature as expressed in the statute. See City of Sherman v. Public Utility Commission, 643 S.W.2d 681, 684 (Tex. 1983). We believe that it is not the intention of the legislature to grant a bail bond board the authority to adopt the rule in question.
Sections 5(b)(2)-(4) specify that the designee of a presiding judge of the administrative judicial district must be "a district judge of the county having jurisdiction over criminal matters." A designee of the county judge must be a member of the commissioners court, and the designee of the commissioners court must be "a judge of a county court or a county court at law in the county having jurisdiction over criminal matters." The statute does not include any specific qualifications for designees of the sheriff and district attorney. We believe that a court would find that the express mention in the statute of very particular qualifications for certain designees is tantamount to an express exclusion of qualifications for all other designees.
A principle of statutory construction akin to the maxim that "the express mention of one thing implies the exclusion of another" is the principle that an agency may not by its own rules extend or add to the powers listed in the statute. Peterson v. Calvert, 473 S.W.2d 314, 317 (Tex. Civ. App. - Austin 1971, writ ref'd n.r.e.); Ex parte McIver, 586 S.W.2d 851, 856 (Tex. Crim. App. 1979). See Bexar County Bail Bond Board v. Deckard, supra; Attorney General Opinion MW-324 (1981). Hence, we conclude that the legislature intended to retain for itself the determination of the specific qualifications necessary for membership on a county bail bond board and did not delegate to the boards the power to impose additional qualifications.
In the absence of statutory language indicating a legislative intent that a county bail bond board have the power to add to the qualifications specified by the legislature, it is our opinion that such a board lacks authority to adopt a rule which requires a designee of the sheriff or district attorney to be an employee of the office of the appointing official or a person knowledgeable of the matters within the statutory member's office.
SUMMARY
A county bail bond board may not adopt a rule which requires that a designee of the sheriff or district attorney who is to serve on the board shall be a person knowledgeable of the matters within the appointing official's office or an employee of the office.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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