Could a Texas county bail bond board regulate lawyers who posted bonds for their own criminal-defense clients or regulate the county pretrial-services agency?

Texas AG Opinion JM-901: Bail-Bond Board Authority Over Lawyers and Pretrial Services

Plain-English summary

Harris County Attorney Mike Driscoll asked whether the county bail bond board could regulate two groups involved in obtaining a defendant's release: lawyers who posted bonds for clients they actually represented and the Harris County Pre-trial Services Agency.

Article 2372p-3 generally required people acting as bondsmen in covered counties to be licensed. Section 3(e), however, allowed a Texas lawyer to execute a bail bond or act as surety for a person the lawyer actually represented in a criminal case without obtaining that license. The attorney remained subject to practices that could support license revocation, with violations determined by the sheriff. An officer taking a bond also retained authority under article 17.11 of the Code of Criminal Procedure to require evidence that the security was sufficient.

The Attorney General concluded that the bail bond board could not add to its statutory powers by rule. It therefore could not force a lawyer within section 3(e)'s exception to comply with the act's licensing requirements.

The result was also no for the pretrial-services agency. That agency performed the functions of a personal bond office: gathering and reviewing information about an accused and reporting to the court on whether the person was likely to comply with personal-bond conditions. It did not perform the function of a bail bondsman, so the board lacked authority to regulate it.

Currency note

This opinion was issued in 1988. 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

Did a lawyer need a bail-bond license to post a bond for the lawyer's own client?

No. Under the law addressed in the opinion, a Texas lawyer could execute a bond or act as surety for a criminal defendant the lawyer actually represented without obtaining a license under article 2372p-3.

Was a lawyer completely outside the bail-bond statute?

No. The attorney exception did not permit practices that formed a basis for license revocation, and the statute assigned the sheriff to determine violations. A lawyer paid to execute the bond also could not escape liability merely by saying the lawyer was not hired to represent the principal on the merits.

Could the bail bond board impose its own rules on exempt lawyers?

No. The opinion said an agency could not use rules to extend or add to powers listed in a statute. The board therefore could not impose the act's applicant requirements on an attorney who fit the exception.

Could the officer taking the bond examine the security?

Yes. Article 17.11 of the Code of Criminal Procedure required the officer taking a bail bond to require evidence that the offered security was sufficient. The opinion noted that Minton v. Frank applied that provision to bonds executed by attorneys.

Could the bail bond board regulate the county pretrial-services agency?

No. The agency acted as a personal bond office, not as a bail bondsman. Its role was to gather and report information to the court for a personal-bond decision.

Background and statutory framework

Section 3 of article 2372p-3 applied the bail-bond regulatory scheme in counties with more than 110,000 residents and in smaller counties that created a board. In a county with a board, a person generally could act as a bondsman only if licensed under the act or licensed to practice law and within section 3(e)'s exception.

Minton v. Frank, 545 S.W.2d 442 (Tex. 1976), held that Texas lawyers were exempt from obtaining a license and from the applicant requirements in section 6 when posting bonds for people they actually represented. The opinion emphasized that the statute still prohibited those lawyers from engaging in conduct that would support license revocation and gave the sheriff the enforcement role. Article 17.11 of the Code of Criminal Procedure separately required the officer taking a bond to obtain evidence of sufficient security.

The pretrial-services question involved article 2372p-2. A personal bond office gathered and reviewed information bearing on whether an accused would comply with personal-bond conditions and reported its findings to the court. Article 17.03 of the Code of Criminal Procedure allowed the court, in its discretion, to release a defendant on a personal bond without sureties or other security. Because that work was not the work of a bail bondsman, the county board's licensing and regulatory authority did not reach the agency.

Citations

Statutory authority:

• V.T.C.S. article 2372p-3, sections 3 and 6
• Code of Criminal Procedure articles 17.11 and 17.03
• V.T.C.S. article 2372p-2

Case:

• Minton v. Frank, 545 S.W.2d 442 (Tex. 1976)

Prior Attorney General materials referenced: JM-251 (1984) and JM-760 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-901
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0901.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

May 12, 1988

Honorable Mike Driscoll
Opinion No. JM-901
Harris County Attorney
1001 Preston, Suite 634
Re: Whether the Harris
Houston, Texas 77002
County Bail Bond Board is
authorized to regulate licensed attorneys who execute bail bonds for criminal defendants
(RQ-1385)

Dear Mr. Driscoll:

You ask:

Whether the Harris County Bail Bond Board is authorized to regulate licensed attorneys who actually represent criminal defendants and/or the Harris County Pre-trial Services Agency in connection with their respective roles in obtaining bail bonds for criminal defendants.

Section 3 of article 2372p-3, V.T.C.S., provides:

The provisions of this Act apply only to the execution of bail bonds in counties having a population of more than 110,000 according to the last federal census or in counties of less than 110,000 where a board has been created. The creation of the board is within the discretion of a majority of the officers of the county who would be members of, or who would designate members of, the board as provided under Subsection (b) of this section.

(a) In a county that has a board,
no
person may act as a bondsman except:

(1) persons licensed under this Act, and

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Honorable Mike Driscoll - Page 2 (JM-901)

-.

(2) persons licensed to practice law in this state who meet the requirements set forth in Subsection (e) of Section 3 of this Act.

(b) No individual is eligible for license under this Act unless the individual:

(1) is a resident of this state and a citizen of the United States;

(2) is at least 18 years of age;

(3) possesses sufficient financial resources to provide indemnity against loss on such obligations as he may undertake as required by Section 6 of this Article.

(c) No person shall be eligible for a license under this Act, who after the effective date of this Act, commits an offense for which he is finally convicted, such offense being a felony or misdemeanor
involving moral turpitude.
?,

(d) No corporation is eligible to be licensed unless:

(1) it is chartered or admitted to do business in this state: and

(2) it is qualified to write fidelity, guaranty and surety bonds under the Texas Insurance Code, as amended.

(e) Persons licensed to practice law in this state may execute bail bonds or act as sureties for persons they actuallv 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 by the sheriff to have violated any term of this Act. may not qualify thereafter under the exception vrovided in this subsec- tion unless and until they come into compli- ance with those practices made the basis of revocation under this Act. Notwithstanding any other provision of this subsection, no person licensed to practice law shall be ?

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Honorable Mike Driscoll - Page 3 (JM-901)

relieved of liability on a bail bond he has executed for the sole reason that he has not P been employed to represent the principal on the merits of the case if he has been paid a fee for the execution of the bail bond.
(Emphasis added.)

Persons licensed to practice law in this state are exempt from obtaining a license and are not required to comply with the requirements imposed upon an applicant set forth in section 6 of article 2372p-3. Minton v. Frank, 545 S.W.2d 442 (Tex. 1976). Licensed attorneys are subject to the act insofar as they are prohibited from engaging in practices made the basis for revocation of a license. The act expressly provides that this is a matter for the determination of the sheriff.

Any officer "taking a bail bond shall require evidence of the sufficiency of the security offered." Article 17.11 Code of Criminal Procedure. In Minton v. Frank the court noted that bonds executed by attorneys are subject to this provision.

An agency may not by its own rules extend or add to the powers listed in a statute. Attorney General Opinion JM-251 (1984). Thus, the Harris County Bail Bond Board does not have the authority to require attorneys to comply with article 2372p-3 when the attorney has executed a bail bond or acted as a surety for a person whom the attorney is actually representing in a criminal case.

The information you furnish reflects that the Harris County Pre-trial Services Agency performs the function of the personal bond office authorized by article 2372p-2, V.T.C.S. Article 2372p-2 provides that the duties of a personal bond office are to gather and review information about an accused that may have a bearing on whether he will comply with the conditions of a personal bond and report its findings to the court before which the case is pending.
Article 17.03 of the Code of Criminal Procedure authorizes the court before which the case is pending, in its discretion, to release the defendant on his personal bond without sureties or other security. See Attorney General Opinion JM-760 (1987).

An agency that performs the function of the personal bond office, here the Harris County Pre-trial Services Agency, does not perform the function of a bail bondsman.
The County Bail Bond Board, charged with certain statutory

• responsibilities in the licensing and regulation of bail

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Honorable Mike Driscoll - Page 4 (JM-901)

bondsmen under article 2372p-3, is not authorized to
regulate an agency performing the functions of a personal
bond office.

SUMMARY

The Harris County Bail Bond Board does not have the authority to require attorneys to comply with article 2372p-3, V.T.C.S., when the attorney has executed a bail bond or acted as a surety for a person the attorney is actually representing in a criminal case.
Nor is such board authorized to regulate an agency in gathering, reviewing and reporting information to a court that may have a bearing on whether an accused is entitled to a personal bond under article 2372p-2, V.T.C.S.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

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