Can a Texas reserve deputy sheriff be a surety on a bail bond in his own county?

Plain-English summary

The Andrews County Attorney asked the AG three related questions about a reserve deputy sheriff acting as a surety on a bail bond: whether the deputy is eligible to sign as a surety on a bond made in the county where he serves, whether the sheriff may accept such a bond, and whether any other law would prohibit the arrangement. Andrews County is small enough that the Occupations Code bail-bond licensing chapter does not apply and the county has not created a bail bond board, so chapter 17 of the Code of Criminal Procedure governs.

The AG worked through each piece. Chapter 17 sets only a handful of surety qualifications and disqualifies certain people, such as felons and minors. It requires an individual surety to be a Texas resident, offer sufficient security, and not be in default on another bond. Assuming a reserve deputy meets those requirements, nothing in the statute makes him ineligible to sign as a surety, and chapter 17 establishes very few qualifications to act as an individual surety. Because chapter 17 also authorizes the sheriff to accept bail bonds in misdemeanor and felony cases, the statute does not bar the sheriff from accepting a bond that lists a reserve deputy as surety, again so long as the bond and surety meet the requirements.

The AG then checked the conflicts-of-interest law in chapter 171 of the Local Government Code. The AG did not have to decide whether that chapter even applies to a reserve deputy, because even if it does, it does not bar a local official from acting as a surety on a bail bond. Chapter 171 only forbids serving as a surety on a governmental officer's official bond or as a surety for a business entity that does business with the government. A bail bond is a contract with the county, but the prohibition reaches only sureties for a "business entity," and that term does not include individuals. Since a bail bond secures the release of an individual defendant, the prohibition does not apply. The AG found no other law that would bar a reserve deputy from being a surety or a sheriff from accepting such a bond.

Finally, the AG added a caution. The Texas Supreme Court has long held that public policy forbids an officer from using official authority to enforce personal rights, such as a sheriff executing a writ for his own benefit. By analogy, a reserve deputy who is a surety for an accused who fails to appear would have a financial interest in rearresting that person, and also has a financial interest in the bond's acceptance. So the AG advised that it would be wise for the sheriff to limit the scope of the reserve deputy's authority, especially as to any official duties connected to the deputy's own bail bonds, which the statute allows the sheriff to do.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that, assuming a surety satisfies chapter 17's eligibility requirements, the AG was not aware of any authority that would prohibit a reserve deputy sheriff in Andrews County from acting as a surety on a bail bond or prohibit a sheriff from accepting such a bond.

Sheriffs (as the opinion described them): The opinion explained that a sheriff may accept a bond listing a reserve deputy as surety, but advised limiting the reserve deputy's authority over official duties tied to the deputy's own bail bonds, because the deputy has a financial interest in accepting and enforcing those bonds.

Reserve deputy sheriffs (as the opinion described them): The opinion treated them as eligible individual sureties if they meet chapter 17's requirements, while flagging that using official authority to rearrest an accused for whom the deputy is surety could run afoul of the rule against officers enforcing personal rights.

Common questions

Can a reserve deputy sheriff post a bail bond as surety in his own county?
Under this opinion, yes, as long as he meets chapter 17's surety requirements. The AG found no law making a reserve deputy ineligible.

Does the conflicts-of-interest law stop this?
No. The opinion explained that chapter 171 only bars acting as a surety on a governmental officer's official bond or for a business entity, and a bail bond for an individual defendant is neither.

Can the sheriff accept a bond with a reserve deputy listed as surety?
Yes. The opinion concluded chapter 17 authorizes the sheriff to accept such a bond, provided the bond and surety meet the statutory requirements.

Were there any cautions the opinion raised?
Yes. The opinion warned that an officer should not use official authority for personal gain, and advised the sheriff to limit the reserve deputy's authority over duties connected to the deputy's own bail bonds.

Background and statutory framework

Chapter 17 of the Code of Criminal Procedure governs bail-bond surety eligibility in Andrews County, because the Occupations Code bail-bond chapter applies only to larger counties or those with a bail bond board, which Andrews County is not (Tex. Occ. Code § 1704.002; Castaneda v. Gonzales, 985 S.W.2d 500 (Tex. App.—Corpus Christi 1998, no pet.)). Chapter 17 disqualifies felons and minors, requires an individual surety to be a Texas resident offering sufficient security, and disqualifies a surety in default on another bond, but otherwise sets very few qualifications (Tex. Code Crim. Proc. arts. 17.08, 17.10, 17.11, § 1, 17.11, § 2; Tex. Att'y Gen. Op. No. GA-0288 (2004)). Chapter 17 authorizes a sheriff to accept bail bonds in misdemeanor and felony cases (Tex. Code Crim. Proc. arts. 17.20-.21).

Chapter 171 of the Local Government Code governs local officials' conflicts of interest, defining a local public official to include certain county officers with non-advisory responsibilities, and reserve deputies have the rights and duties of peace officers when on duty (Tex. Loc. Gov't Code §§ 171.003-.004, .007(a), 171.001(1), 85.004(a)-(b), 85.004(b), 85.004(d)). But chapter 171 prohibits acting as a surety only on a governmental officer's official bond or for a business entity that does business with the government, and "business entity" does not include individuals, so it does not bar serving as a surety for an individual defendant's bail bond (Tex. Loc. Gov't Code §§ 171.003, 171.003(a)(2), 171.003(a)(2)-(3), 171.001(2), 171.004; Tex. Code Crim. Proc. art. 17.02; Tex. Att'y Gen. Op. Nos. JC-0121 (1999), GA-0402 (2006), GA-0784 (2010)). County judges and commissioners cannot make bail bonds because of a position-specific oath, but that oath does not apply to reserve deputy sheriffs (Tex. Loc. Gov't Code § 81.002(a); Tex. Att'y Gen. Op. Nos. JC-0121 (1999), JM-927 (1988)). The AG cautioned against an officer using official authority for personal gain (Erwin v. Bowman, 51 Tex. 513 (1879)) and noted the sheriff may limit a reserve deputy's authority (Tex. Code Crim. Proc. art. 17.08, § 6; Tex. Loc. Gov't Code § 85.004(b)).

Citations

Constitutional and statutory provisions:

• Tex. Code Crim. Proc. arts. 17.02, 17.08, 17.08, § 6, 17.10, 17.11, § 1, 17.11, § 2, 17.20-.21
• Tex. Occ. Code § 1704.002
• Tex. Loc. Gov't Code §§ 171.003-.004, .007(a), 171.001(1), 171.001(2), 171.003, 171.003(a)(2), 171.003(a)(2)-(3), 171.004, 81.002(a), 85.004(a)-(b), 85.004(b), 85.004(d)

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0288 (2004)
• Tex. Att'y Gen. Op. No. JC-0121 (1999)
• Tex. Att'y Gen. Op. No. GA-0402 (2006)
• Tex. Att'y Gen. Op. No. GA-0784 (2010)
• Tex. Att'y Gen. Op. No. JM-927 (1988)

Cases:

• Castaneda v. Gonzales, 985 S.W.2d 500 (Tex. App.—Corpus Christi 1998, no pet.)
• Erwin v. Bowman, 51 Tex. 513 (1879)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0132
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0132.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 6, 2017

The Honorable Timothy J. Mason Opinion No. KP-0132
Andrews County Attorney
121 Northwest Avenue A Re: Authority of a reserve deputy sheriff to act
Andrews, Texas 79714 as a surety on a bail bond (RQ-0123-KP)

Dear Mr. Mason:

    You have requested an opinion from this office regarding whether a reserve deputy sheriff may act as a surety on a bail bond. [1] Your request raises three specific but related concerns. Request Letter at 1. We first address whether a reserve deputy sheriff is eligible to sign as a surety on a bail bond made in the county in which the deputy serves. Id.

    Chapter 17 of the Code of Criminal Procedure governs the eligibility of sureties for bail bonds made in Andrews County. [2] Chapter 17 contains certain eligibility requirements for bail-bond sureties and disqualifies certain individuals from acting as a surety on a bail bond, including felons and minors. See TEX. CODE CRIM. PROC. arts. 17.10 ("Disqualified sureties"), 17.11, § 1 (individual acting as surety must be a Texas resident and offer sufficient security), 17.11, § 2 (default on bail bond disqualifies individual from acting as surety on another bond). Assuming a reserve deputy sheriff meets these eligibility requirements, nothing in the statute would otherwise render a reserve deputy sheriff ineligible to sign as a surety on a bail bond. See id. arts. 17.08 ("Requisites of a bail bond"), 17.10-.11; see also Tex. Att'y Gen. Op. No. GA-0288 (2004) at 1-2 ("[C]hapter 17 of the Code of Criminal Procedure establishes very few qualifications for a person to act as an individual surety.").

    You additionally ask whether a sheriff may accept a bail bond listing a reserve deputy sheriff as a surety. Request Letter at 1. Chapter 17 authorizes a sheriff to accept bail bonds from defendants accused of misdemeanor and felony offenses. TEX. CODE CRIM. PROC. arts. 17.20-.21. Again, provided that the bond meets the necessary statutory prerequisites and the surety satisfies the aforementioned eligibility requirements, the statute does not expressly prohibit a sheriff from accepting a bail bond listing a reserve deputy sheriff as a surety. See id. arts. 17.08, 17.10-.11.

    Beyond these requirements, we last address whether any other legal authority exists that would prohibit a reserve deputy sheriff from acting as a surety on a bail bond in the county where the deputy serves. Request Letter at 1. Chapter 171 of the Local Government Code governs local public officials' conflicts of interest, including conflicts involving sureties and other business interests. TEX. LOC. GOV'T CODE §§ 171.003-.004, .007(a). The statutory definition of a "local public official" to whom chapter 171 applies includes an "officer, whether elected, appointed, paid, or unpaid, of any ... county ... who exercises responsibilities beyond those that are advisory in nature." Id. § 171.001(1). With regard to the appointment and responsibilities of reserve deputy sheriffs, the sheriff appoints these deputies and calls them into service when additional officers are necessary "to preserve the peace and enforce the law." Id. § 85.004(a)-(b). Reserve deputy sheriffs serve at the discretion of the sheriff, but when on duty and actively engaged in their assigned duties, the law vests them with "the same rights, privileges, and duties as any other peace officer of the state." Id. § 85.004(b), (d).

    We need not reach the question of applicability, however, because even when chapter 171 applies, it does not bar a local public official from acting as a surety on a bail bond. [3] See id. § 171.003 (list of acts that are offenses prohibited under chapter 171). Rather, chapter 171 only prohibits a local public official from acting as a surety on an official bond required of a governmental officer or as a "surety for a business entity that has work, business, or a contract" with a government entity. Id. § 171.003(a)(2)-(3). Although a bail bond is a contract with the county, the prohibition against acting as a surety on a contract applies to only a local public official acting as a surety for a "business entity." Id. § 171.003(a)(2); see also Tex. Att'y Gen. Op. No. JC-0121 (1999) at 1 ("[A] bail bond is a contract to which the county is a party and in which a surety has an interest."). For purposes of chapter 171, the term "business entity" does not include individuals. TEX. LOC. GOV'T CODE § 171.001(2). Thus, section 171.003(a)(2) does not prohibit a local public official from acting as a surety for an individual, such as a bail bond contract made to secure the release of an individual defendant from the State's custody. See TEX. CODE CRIM. PROC. art. 17.02 (defining "bail bond"). [4] Beyond the authorities discussed, we find no other law that would prohibit either a reserve deputy sheriff from acting as a surety on a bail bond or a sheriff from accepting such a bond. [5]

    We note, however, that the Texas Supreme Court previously cautioned against law enforcement officers using official authority to enforce personal rights, holding in an 1879 opinion that public policy forbids a sheriff from enforcing a writ of execution for his own benefit. See Erwin v. Bowman, 51 Tex. 513, 518 (1879). By analogy, a reserve deputy sheriff who acts as surety for an accused who fails to appear could run afoul of precedent if that deputy then used his official authority to rearrest the accused. See TEX. CODE CRIM. PROC. art. 17.08, § 6 (sheriff or other peace officers must rearrest accused in the event he or she fails to appear before court named in bond). Like a sheriff seeking to execute a judgment for personal gain, a reserve deputy sheriff acting as a surety for an individual who failed to appear has a financial interest in rearresting that individual. A reserve deputy sheriff also has a financial interest in the initial acceptance of such a bond. See id. arts. 17.20-.21 (sheriff or other peace officer authorized to accept bail bonds). As such, it would be advisable for the sheriff to limit the scope of the reserve deputy sheriff's authority, particularly with reference to any official performance of duties related to the deputy's bail bonds. See TEX. LOC. GOV'T CODE § 85.004(b) (sheriff may limit authority of reserve deputy).

                                SUMMARY

                  Chapter 17 of the Code of Criminal Procedure establishes the eligibility requirements for sureties on a bail bond made in Andrews County. Assuming a surety satisfies these requirements, we are not aware of any authority that would prohibit a reserve deputy sheriff in Andrews County from acting as a surety on a bail bond or prohibit a sheriff from accepting such a bond.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Timothy J. Mason, Andrews Cty. Att'y, to the Op. Comm., Office of the Tex. Att'y Gen. at 1 (Aug. 1, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] While chapter 1704 of the Occupations Code regulates bail bond sureties, the provisions of that chapter apply only to counties having a population of 110,000 or more, or in counties of less than 110,000 that have established a bail bond board. See TEX. OCC. CODE § 1704.002. Chapter 17 of the Code of Criminal Procedure, rather than chapter 1704 of the Occupations Code, governs the taking and approval of bail bonds in Andrews County, which as you inform us does not have a large enough population to fall under chapter 1704 and has not exercised the option to establish a bail bond board. See Request Letter at 1; see also TEX. OCC. CODE § 1704.002; Castaneda v. Gonzales, 985 S.W.2d 500, 503 (Tex. App.—Corpus Christi 1998, no pet.).

[3] No authorities of which we are aware address whether the term "officer" as used in section 171.001(1), includes peace officers of this State. Cf. Tex. Att'y Gen. Op. No. GA-0402 (2006) at 1 (concluding that deputy sheriff is not an officer for purposes of article 16, section 40 of the Texas Constitution).

[4] Section 171.004 of chapter 171 contains additional restrictions for local public officials who must participate in a vote or decision affecting a business entity in which the official has a substantial interest, including disclosure and abstention requirements. TEX. LOC. GOV'T CODE § 171.004. Nothing in your letter indicates that the reserve deputy sheriff has a substantial interest in any business entity. See Request Letter at 1. Regardless, this office has previously concluded that certain law enforcement action, including the performance of statutory duties related to bail bonds, is not a "decision" triggering application of section 171.004's abstention and disclosure requirements. See Tex. Att'y Gen. Op. No. GA-0784 (2010) at 4.

[5] Opinions from this office have previously concluded that county judges and commissioners may not act as sureties on bail bonds because the Local Government Code requires these officials to take an additional oath swearing that they will not have an interest in a contract with the county, subject to limited statutory exceptions. See TEX. LOC. GOV'T CODE § 81.002(a); see also Tex. Att'y Gen. Op. Nos. JC-0121 (1999) at 4 (county judge prohibited from making bail bonds in county where judge presides because of oath), JM-927 (1988) at 2 (county commissioner prohibited from making bail bonds in county where commissioner serves because of oath). This statutorily-required oath is specific to the positions of county commissioner and county judge and does not apply to reserve deputy sheriffs. See TEX. LOC. GOV'T CODE § 81.002(a).