Can a Texas county commissioner post a bail bond, or pledge his property as a surety, for someone charged in his own county?

Texas AG Opinion JM-927: Can a County Commissioner Cosign a Bail Bond in His Own County?

Plain-English summary

A county commissioner in Texas takes an oath before starting the job. Part of that oath is a promise not to be financially tangled up with the county, specifically, not to be interested, directly or indirectly, in a contract with the county or a claim against it. The idea is simple: the people who spend and manage the county's money should not be sitting on both sides of a county deal. The Trinity County attorney asked the Attorney General whether that oath stops a commissioner from acting as a surety on a bail bond, that is, from cosigning a bond and putting up his own property to guarantee that a defendant charged in his county shows up for court.

The Attorney General said yes, the oath stops him.

The reasoning is short and turns on what a bail bond actually is. It is not just a favor or a promise floating in the air; it is a contract. The Code of Criminal Procedure defines a bail bond as a written undertaking by the defendant and the sureties guaranteeing the defendant's appearance, and Texas courts have described it as a contract between the government and the defendant and the surety. And this contract runs toward the county. If the defendant skips court, the bond is forfeited, a judgment is entered against the defendant and the sureties for the bond amount, and the money that gets collected is paid to the county treasurer. So the county is the party that benefits when a surety has to pay up.

Put those pieces together and the conflict is obvious. A commissioner who cosigns a bail bond has entered a contract in which his own county is the beneficiary if things go wrong. That is exactly the kind of interest in a county contract his oath told him to avoid. The Attorney General also closed off the natural escape hatch: section 81.002 has an exception for contracts or claims "expressly authorized by law," but no law expressly authorizes a commissioner to serve as a bail-bond surety, so the exception does not help.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

The conflict-of-interest oath for county officers (Local Government Code section 81.002) and the bail provisions of the Code of Criminal Procedure discussed here have been amended over the years, and Texas has since layered on additional restrictions and licensing requirements for who may write bail bonds, including bail bond board rules in many counties. The core principle, that a county officer cannot hold a personal interest in a contract in which the county has an interest, is durable, but anyone facing a real question about serving as a surety or about a public officer's conflicts today should check the current statutes and any applicable local bail bond board rules rather than relying on this 1988 reading.

Who this opinion affected (as of 1988)

County commissioners and county judges: The opinion told them their oath of office bars them from cosigning a bail bond for a defendant charged in their own county, because the county has an interest in the bond.

County attorneys and prosecutors: The opinion gave them a clear answer for advising commissioners and for evaluating the validity of a bond a commissioner might try to post.

Defendants and their families: The opinion meant a sitting commissioner was not an available surety for a local defendant, closing off what might otherwise look like a convenient source of a bond.

Common questions

Can a Texas county commissioner act as a surety on a bail bond in his own county?
No. The Attorney General concluded a commissioner cannot serve as a surety on a bail bond for a defendant charged in the county he serves, because the bond is a contract in which the county has an interest and his oath bars that.

Why is a bail bond treated as a county contract?
Because a bail bond is a contract for the defendant's appearance, and if the defendant fails to appear the bond is forfeited and the collected money is paid to the county treasurer. That makes the county the beneficiary of the surety's obligation.

What part of the law creates the conflict?
Local Government Code section 81.002(a). A commissioner must swear not to be interested, directly or indirectly, in a contract with or a claim against the county. Cosigning a bail bond creates exactly that interest.

Is there any exception that would let him do it?
Not here. Section 81.002 excepts contracts or claims "expressly authorized by law," but no law expressly authorizes a commissioner to serve as a bail-bond surety, so the exception does not apply.

Background and statutory framework

Local Government Code section 81.002(a) provides that before undertaking the duties of the county judge or a county commissioner, a person must take the official oath and swear in writing that the person will not be interested, directly or indirectly, in a contract with or claim against the county. Article 17.02 of the Code of Criminal Procedure defines a bail bond as a written undertaking entered into by the defendant and the sureties for the appearance of the principal before some court or magistrate to answer a criminal accusation. A bail bond has been treated as a contract between the government and the defendant and the surety (Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980)).

Article 22.02 of the Code of Criminal Procedure sets out the procedure for forfeiture of a bail bond when the defendant fails to appear, providing that judgment shall be entered that the State of Texas recover from the defendant the amount in which he is bound and from his sureties the amounts they are respectively bound, to be made final unless good cause is shown for the failure to appear. Article 103.004 provides that the officer who collects bail bonds and other obligations recovered in the name of the State pays the money to the county treasurer of the county for which it was collected. Because a county commissioner who acts as a surety on a bail bond enters into a contract making the county the beneficiary if the principal fails to perform, his oath of office prohibits him from entering into that contract, in which he and the county he serves have an interest. Serving as a surety on a bail bond does not come within section 81.002's exception permitting a commissioner to enter into a contract or claim expressly authorized by law.

Citations

Statutory authority:

• Local Government Code section 81.002(a) (oath of the county judge and county commissioners; prohibition on any direct or indirect interest in a contract with or claim against the county)
• Code of Criminal Procedure article 17.02 (definition of a bail bond)
• Code of Criminal Procedure article 22.02 (forfeiture of a bail bond and judgment against the defendant and sureties)
• Code of Criminal Procedure article 103.004 (officer pays collected bail money to the county treasurer)

Cases:

• Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980) (Texas Court of Criminal Appeals; a bail bond is a contract between the government and the defendant and the surety)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-927
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0927.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

June 29, 1988

Honorable Joe Warner Bell
Trinity County Attorney
P. O. Box 979
Groveton, Texas 75845

Opinion No. JM-927

Re: Whether a County Commissioner may act as surety on a bail bond for an offense committed in his county, and related questions (RQ-1405)

Dear Mr. Bell:

You ask:

Whether a county commissioner may act as a surety on a bail bond for a person charged with an offense in his county and permit his property to be pledged as security on such bond.

Subsection (a) of section 81.002 of the Local Government Code provides:

(a) Before undertaking the duties of the county judge or a county commissioner, a person must take the official oath and swear in writing that the person will not be interested, directly or indirectly, in a contract with or claim against the county. . . . (Emphasis added.)

A bail bond is defined in article 17.02 of the Code of Criminal Procedure as "a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation."

A bail bond has been defined as a contract between the government and the defendant and his surety. Ex parte Vance, 608 S.W.2d 681 (Tex. Crim. App. 1980).

Article 22.02 of the Code of Criminal Procedure delineates the procedure for forfeiture of bail bonds upon failure of the defendant to appear at the appointed time and provides that "judgment shall be entered that the State of Texas recover of the defendant the amount of money in which he is bound, and of his sureties, the amount of money which they are respectively bound, which shall state that the same will be made final, unless good cause be shown why the defendant did not appear." Article 103.004 of the Code of Criminal Procedure provides that the officer who collects bail bonds and other obligations recovered in the name of the state pay the money to the county treasurer of the county for which the money was collected.

When a county commissioner acts as a surety on a bail bond he enters into a contract making the county the beneficiary if the principal fails to perform. The commissioner's oath of office prohibits him from entering into a contract in which he and the county he serves have an interest.[1]

SUMMARY

A commissioner may not act as a surety on a bail bond for a defendant in which he and the county he serves have an interest.

Very truly yours,

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

[1] Serving as a surety on a bail bond does not come within the exception to the prohibition of section 81.002 permitting a commissioner to enter into "a contract or claim expressly authorized by law."