Frank v. Minton, 5504
| Decision Date | 11 December 1975 |
| Docket Number | No. 5504,5504 |
| Citation | 531 S.W.2d 413 |
| Parties | Raymond FRANK, Appellant, v. Roy Q. MINTON et al., Appellees. |
| Court | Texas Court of Appeals |
Waggoner Carr, Robert L. Crider, Austin, for appellant.
Clark, Thomas, Winters & Shapiro, John H. Coates, Austin, for appellees.
This is an appeal by Raymond Frank, Sheriff of Travis County from Summary Judgment granting permanent injunction against appellants enforcement of the provisions of Article 2372p--3 VATS against appellees Roy Q. Minton and Bob Kuhn.
Appellees (plaintiffs) Minton and Kuhn are licensed lawyers practicing law in Travis County. They filed suit for injunction enjoining appellant (defendant) Sheriff Frank from enforcing the bonding regulating provisions of Article 2372p--3 VATS (The Bail Bond Act), against them. They allege they make bonds in criminal cases for clients they represent, and that Section 3(b) of Article 2372p--3 VATS exempts them from the requirements of the Bill Bond Act.
Appellant (defendant) Sheriff answered that appellees (plaintiffs) as practicing attorneys are exempt from the 'requirements of licensing' under the act, but that they are not exempt from the regulating provisions of the act.
Appellees (plaintiffs) moved for Summary Judgment. Appellant (defendant) answered that plaintiffs' petition fails to state a cause of action on which plaintiffs can be granted relief; and further that the approval of bonds involves the exercise of discretion on defendant's part; both of which preclude summary judgment.
The trial court granted summary judgment permanently enjoining appellant (defendant) from enforcing the provisions of Article 2372p--3 VATS 'which concern approval of bonds' against appellees (plaintiffs).
Appellant Sheriff Frank appeals on 4 points contending the trial court erred in enjoining appellant from implementing, administering or enforcing the regulating provisions of Article 2372p--3 VATS as to appellees.
Appellant contends that Article 2372p--3 VATS exempts attorneys from the 'licensing' provisions of the act, but does not exempt attorneys from the 'regulating' provisions of the act. Appellees contend that the act exempts attorneys from both the 'licensing' and 'regulating' provisions of the act (and that attorneys who make bail bonds in Travis County are regulated by Article 17.11 of the Code of Criminal Procedure).
Thus the question for determination here is whether the act exempts attorneys from its 'licensing' provisions only, or whether it exempts them from both its 'licensing' and 'regulating' provisions.
Pertinent provisions of Article 2372p--3 VATS are summarized as follows:
Art. 2372p--3. Licensing and regulation of bail bondsmen
Declaration of policy
Section 1. The business of executing bail bonds is declared to be a business affecting the public interest. It is declared to be the policy of this state to provide reasonable regulation to the end that the right of bail be preserved and implemented by just and practical procedures governing the giving or making of bail bond and other security to guarantee appearance of the accused.
Sec. 2. In this Act:
(1) 'Person' includes corporations, other business entities, and associations of persons.
(2) 'Bondsman' means any person who for hire or for any compensation deposits any cash or bonds or other securities, or executes as surety any bond for other persons, as many as five times in any 12-month period.
(3) 'Company' includes corporation and other business entities.
(4) 'Bond' includes cash deposit or written undertaking to assure appearance.
(5) 'Board' means the County Bail Bond Board.
Requirements of license
Sec. 3. (a) No person may act as a bondsman without the license required under the provisions of this Act, except as provided in Subsections (b), (c), and (d) of this section.
(b) Persons who are actually engaged in the practice of law and who are members of the State Bar of Texas who personally execute bail bonds or act as sureties for persons they actually represent in criminal cases may execute bail bonds or sureties 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 guilty of violating the terms of this Act, may not qualify thereafter under the exception provided in this subsection.
(c) The provisions of this Act do not apply to the execution of bail bonds in counties having a population of less than 150,000 according to the last preceding federal census.
(d) Persons who execute bonds as cosureties with a licensed bondsman.
Sec. 4. A sheriff may examine under oath any proposed bondsman, * * * as to the indemnity * * * provided * * * against loss * * * and may refuse to accept the bond if, in the exercise of his discretion, he is satisfied that the security is insufficient, any portion of the security has been feloniously obtained, or the provisions of this Act have been violated.
Sec. 5. (a) There is hereby created in all counties having a population of 150,000 or more * * * a County Bail Bond Board.
(b) It shall be the duty of the County Bail Bond Board to set rules and regulations relative to the making of bail bonds by bondsmen within the county. No person may act as a bondsman unless he first obtains a license from the board unless exempt under the provisions of Section 3 * * *.
(c) The County Bail Bond Board shall be composed of the following persons: (1) The sheriff; (2) a district judge; (3) the county judge; (4) a county court at law judge; (5) the district attorney.
(d) The board shall meet * * *.
(e) Three members of the board shall constitute a quorum * * *.
(f) * * * all rules and regulations * * * of the board shall be posted * * * in the courthouse * * *.
(g) The County Bail Bond Board has the following powers and duties: (1) To establish rules to be followed in the county relating to the setting and taking of bail bonds; (2) to conduct hearings and make determinations respecting the issuance of licenses to bondsmen within the provisions of this Act and to issue licenses to applicants who qualify; (3) to administer oaths and have hearings; (4) to investigate applicants for licenses and determine their qualifications; (5) keep records of all proceedings; and (6) operate its office affairs.
Application and issuance of license
Sec. 6. (provides for applications for license as a bondsman; a fee of $500. for filing of application; and deposit of cash or equivalent with the County Treasurer, upon approval of the licensee, to pay judgments of bail forfeitures resulting from the persons execution of a bail bond.
Refusal and revocation of licenses
Sec. 9. * * *
(b) Any license may be suspended or revoked by the board for:
(1) violation of the provisions of this Act;
(2) fraudulently obtaining a license under the provisions of this Act;
(3) conviction for felony or misdemeanor involving moral turpitude (4) being adjudged bankrupt or becoming insolvent;
(5) failing to pay within 30 days any final judgment rendered on any forfeited bond;
(6) failure to pay in addition to amount of a forfeited bond all necessary and reasonable expenses in arresting the principal;
(7) a licensee's paying...
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Minton v. Frank
...certain provisions of the Act. The trial court granted petitioners' motion for summary judgment, and the court of civil appeals reversed. 531 S.W.2d 413. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial The trial court granted petitioners' motion fo......