Acceptance of Bail Bond
Re: Whether a sheriff in a non-bail bond board county must accept a bail bond signed by an individual surety’s attorney-in-fact (RQ-0246-GA).
Submitted by Cecil L. Solomon
Franklin County Attorney
Summary, Opinion No. GA-288: In a county that has not established a bail bond board under chapter 1704 of the Occupations Code, the authority of an officer taking a bail bond to assess a surety’s qualifications is governed by chapter 17 of the Code of Criminal Procedure. A sheriff is not required to accept a bail bond signed by an individual surety’s attorney-in-fact on the surety’s behalf. A sheriff’s authority to require a surety to sign a bond is based on article 17.08(4) of the Code of Criminal Procedure, which establishes the requisites of a bail bond, and is not affected by the fact that the surety may have demonstrated sufficient security. In the bail bond forfeiture context, a court may hold an individual surety liable on a bond even though the surety did not personally sign it, depending on the particular facts. However, no statute or case suggests that an officer taking a bail bond lacks authority under article 17.08(4) to require an individual surety to sign the bond or that an individual surety has the right to insist that an officer taking a bail bond permit an attorney-in-fact to sign bonds on the surety’s behalf.
TCEQ Cleanup Level
Re: Whether the Texas Commission on Environmental Quality is authorized to raise the environmental cleanup level at a specific site, and if so, what procedures must it follow (RQ-0245-GA).
Submitted by Eddie Lucio Jr.
Chair, Senate Committee on International Relations and Trade
Summary, Opinion No. GA-290: As an administrative agency, the Texas Commission on Environmental Quality (“TCEQ”) is bound by its own rules. Where a validly adopted rule, here the Texas Risk Reduction Program (“TRRP”) rule, establishes the cleanup standard for remediation activity at all sites in the state, TCEQ’s application of a different standard to the ASARCO/El Paso Metals Site without changing the rule would be arbitrary and capricious. TCEQ is authorized under its enabling legislation to amend the TRRP rule so long as it follows the rulemaking procedures of the Texas Administrative Procedure Act. As a Removal Action under the federal Comprehensive Environmental Response Compensation and Liability Act, or CERCLA, the current United States Environmental Protection Agency (“EPA”) cleanup at the Site is required to meet the lead cleanup standard in title 30 Texas Administrative Code section 350.76(c)(1) to the extent it is practicable to do so given the exigencies of the situation. If EPA determines that the action will be a Remedial Action, or final cleanup, then Rule 350.76(c)(1) sets the applicable cleanup standard. In either case, if EPA determines that Rule 350.76(c)(1) is not applicable to the Site as an applicable or relevant and appropriate requirement, or ARAR, that determination would not require a change in the TRRP rule.
Road System and Funds
Re: Operation of the ex officio road commissioner system and allocation of road and bridge funds in Denton County (RQ-0254-GA).
Submitted by Bruce Isaacks
Denton County Criminal District Attorney
Summary, Opinion No. GA 295: In a county operating under the ex officio road commissioner system authorized by Transportation Code chapter 252, subchapter A, the ex officio road commissioners of two precincts may not jointly hire a road and bridge crew to work in both precincts. Nor may an ex officio road commissioner contract with a public or private entity to perform road work in his precinct, although the commissioners court may enter into such contracts. Denton County, in attempting to implement the ex officio road commissioner system in these ways, does not comply with chapter 252, subchapter A. The commissioners court of a county has broad discretion, subject to judicial review and abrogation for abuse of discretion, to allocate the road and bridge fund among the county’s precincts, keeping in mind its duty to represent the county as a whole. The Denton County Commissioners Court may amend its budget to authorize an emergency expenditure under the circumstances stated in Local Government Code section 111.070 and may transfer funds originally budgeted for one precinct to another precinct without authorizing an emergency expenditure. A county may continue to administer its roads under the ex officio road commissioner system even if there are no longer any county roads in the unincorporated area of one precinct.
Amendments to International Residential Code
Re: Whether Local Government Code section 214.212(c)(1), which permits a municipality to adopt local amendments to the International Residential Code, limits the municipality to adopting only amendments that are equivalent to or more stringent than the standards of the International Residential Code (RQ-0256-GA)
Submitted by Frank J. Corte Jr.
Chair, Committee on Defense Affairs and State-Federal Relations
Texas House of Representatives
Summary, Opinion No. GA-297: Local Government Code section 214.212(c)(1), which permits a municipality to adopt local amendments to the International Residential Code, does not limit the municipality to adopting only local amendments that are equivalent to or more stringent than the standards of the International Residential Code.