Tony Smith v. Johnson County Bail Bond Board--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00302-CV

Tony Smith,

Appellant

v.

Johnson  County Bail Bond Board,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. C200200469

MEMORANDUM Opinion

The Johnson County Bail Bond Board denied Tony Smith s application to act as an agent for a licensed bail bondsperson. After he appealed to the District Court, Smith filed a Motion for Partial Summary Judgment. The Johnson County Bail Bond Board (the Board) filed a Cross Motion for Summary Judgment on each of Smith s claims. The trial court denied Smith s Motion and granted the Board s Cross Motion. Smith appeals this judgment and brings five issues.

We will affirm the judgment of the trial court.

BACKGROUND

In August 2002, Smith filed an Application for Designated Representative of a Johnson County Licensed Bail Bondsperson and sought the approval of the Board to act as an agent for Bondman Bail Bonds. The Board denied Smith s application pursuant to Johnson County Bail Bond Board Local Rule 10.1, which provides, to qualify for an agent s license, an applicant must meet all requirements of the Texas Bail Bond Act. Tex. Occ. Code Ann. 1704.001 et seq. (Vernon 2004). The Board found Smith did not meet all requirements of the Act in that he had a prior felony DWI conviction.

Smith appealed this denial to the trial court pursuant to Texas Occupations Code section 1704.255. Id., 1704.255 (Vernon 2004). Smith s first and second issues argue the trial court misinterpreted the Texas Bail Bond Act by finding the Act prohibits a person convicted of a felony from obtaining a license to act as an agent for a licensed bail bondsperson. His third and fourth issues argue Texas Occupations Code section 1704.302(c) operates as a grandfather clause which allows him to continue acting as an agent and obtain an agent s license. The fifth and final issue argues Johnson County Bail Bond Board Local Rule 10.1 violates the Equal Protection Clause of the U.S. Constitution.

STANDARD OF REVIEW

We review the decision to grant or deny a summary judgment motion de novo. See Provident Life & Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App. Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in his favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413.

LICENSE REQUIREMENTS

Smith argues the trial court misinterpreted Sections 1704.153 and 1704.302(b) and (c) of the Bail Bond Act and improperly granted the Board s Motion for Summary Judgment and denied Smith s Motion for Partial Summary Judgment. Section 1704.153, in conjunction with section 1704.152, dictates who is eligible to obtain a license to act as a bail bond surety or as an agent for a corporate surety. Specifically, section 1704.153 states: A person is not eligible for a license under this chapter if, after August 27, 1973, the person commits and is finally convicted of a misdemeanor involving moral turpitude or a felony. Tex. Occ. Code Ann. 1704.153 (Vernon 2004). In addition to applying the 1704.153 eligibility requirement to individuals applying to act as a licensed bail bondsperson, the Board applies this requirement to individuals seeking to act as agents of a licensed bail bondsperson. Johnson County Bail Bond Board Local Rule 10.1 defines agent as: any person hired by a licensee who meets and negotiates with the public for the purpose of selling bail bonds, and presents bonds to the Sheriff s Office for approval. Further, Rule 10.1 states: To qualify for a license as an agent, an applicant must show that he/she meets all requirements of the Act and these Rules ....

Each county bail bond board has the authority to exercise the powers incidental or necessary to implement the Bail Bond Act. Tex. Occ. Code Ann. 1704.101 (Vernon 2004). Although a board cannot impose additional requirements on individuals who seek to obtain a license as a bail bond surety or as an agent for a corporate surety, it is appropriate, in furtherance of the Act, to impose eligibility requirements for agents or employees of licensed bail bondspersons because requirements for these individuals do not exist in the Act. Dallas County Bail Bond Bd. v. Stein, 771 S.W.2d 577, 580 (Tex. App. Dallas 1989, writ denied).

The Board s definition of agent, the requirement for agents to obtain a license, and the prohibition against felons obtaining an agent s license are similar to the rules adopted by the Dallas County Bail Bond Board. In reviewing the Dallas rules, the Dallas Court of Appeals found the Dallas Bail Bond Board did not exceed its rulemaking authority in implementing rules governing agents. Id. The court stated: the Board merely foreclosed the possibility that an individual who is ineligible for a license under the Act could circumvent this requirement by operating a bonding business as an agent of a licensee. Id. Likewise, we find the Johnson County Bail Bond Board did not exceed its rulemaking authority and did not violate section 1704.153 of the Bail Bond Act by implementing rules governing agents of licensed bail bondspersons.

We are also persuaded by the Board s arguments as they relate to Section 1704.302. Nothing in this section sets forth eligibility requirements to obtain a license under the Bail Bond Act. Subsections 1704.302(b) and (c) act solely to prohibit individuals, other than employees or agents, from receiving compensation for referring business to a licensed bail bondsperson and to prohibit individuals from obtaining employment with a licensed bail bondsperson for a period of ten years after a felony conviction. Smith misinterprets the statute in arguing that subsections 1704.302(b) and (c) modify the eligibility requirements found in section 1704.153. Where language in a statute is unambiguous, a reviewing court must rely on the plain and common meaning of the statute. See St. Luke s Episcopal Hosp. v. Abgor, 952 S.W.2d 503, 505 (Tex. 1997). The clear wording of this statute indicates section 1704.302 does not apply to the licensing of agents. Therefore, we overrule Smith s first issue. Because of our disposition of Smith s first issue we need not address his second issue concerning the denial of his motion for partial summary judgment.

 GRANDFATHER CLAUSE

Because we have determined that Texas Occupations Code subsections 1704.302(b) and (c) do not apply in this case, it is irrelevant whether these provisions operate as a grandfather clause, and we need not rule on issues three and four.

 EQUAL PROTECTION CLAUSE

  Finally, Smith argues that Johnson Bail Bond Board Local Rule 10.1 violates his right to equal protection under the Fourteenth Amendment. U.S. Const. Amend. XIV. However, the Fort Worth Court of Appeals has previously addressed this issue in a case involving Smith and an identical rule of a bail bond board. Smith v. Wise County Bail Bond Bd., No. 02-00-00318-CV (Tex. App. Fort Worth July 12, 2001, no pet. h.). We agree with that analysis and hold that Rule 10.1 does not violate Smith s Fourteenth Amendment right to equal protection.

 CONCLUSION

Having overruled Appellant s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 14, 2005

[CV06]