Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
September 7, 1990
Honorable John Vance Opinion No. JM-1217
District Attorney
Administration Building Re: Acceptance of bail bonds by
411 Elm Street peace officers under articles
Dallas, Texas 75202 17.01 and 17.02 of the Texas
Code of Criminal Procedure
(RQ-2016)
Dear Mr. Vance:
You ask whether bail bonds may be accepted by peace
officers at locations other than the county jail under the
provisions of articles 17.01 and 17.02 of the Code of
Criminal Procedure.
Article 17.01 defines "bail@8 as "the security given by
the accused that he will appear and answer before the proper
court the accusation brought against him, and includes a
bail bond or personal bond." Article 17.02 defines "bail
bond" as follows:
A 'bail bond' is 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: provided,
however, that the defendant upon execution of
such bail bond may deposit with the custodian
of funds of the court in which the prosecu-
tion is pending current money of the United
States in the amount of the bond in lieu of
having sureties signing the same. Any cash
funds deposited under this Article shall be
receipted for by the officer receiving the
same and shall be refunded to the defendant
if and when the defendant complies with the
conditions of his bond, and upon order of the
court.
Article 17.05 of the Code of Criminal Procedure
provides:
p. 6435
Honorable John Vance - Page 2 (JM-1217)
A bail bond is entered into either before
a magistrate, upon an examination of a
criminal accusation, or before a judge upon
an application under habeas corpus; pr it ti
from the defendant bv a neace officer
Af authorized bv Article 17.20. 17.21 or
l.222. (Emphasis added.)
Article 17.20 of the Code of Criminal Procedure pro-
vides that a sheriff, "or other peace officer" in case of
misdemeanor, may, whether during the term of court or in
vacation, take bail bond from a defendant he has in custody.
Article 17.22 of the Code of Criminal Procedure permits the
sheriff "or other peace officer" having a defendant in
custody in a felony case to take his bail bond if the court
before which the same is pending and is not in session in
such amount as may have been fixed by the court in which the
case is pending (or by a magistrate), or if no amount has
been fixed, then in such amount as such officer may consider
reasonable. Under article 17.21 of the Code of Criminal
Procedure where the defendant is in custody of the sheriff
or other peace officer, and the court is in session in the
county where the accused is in custody, the court shall fix
the amount of bail. The sheriff, or other peace officer
Wnless it be the police of a city" is authorized to take
the bail bond of the accused in the amount fixed by the
court. Police officers of an incorporated city, town, or
village are included in the persons and officials in the
definition of peace officers under article 2.12 of the Code
of Criminal Procedure.
you state that the county auditor has voiced concern
that the method devised by the sheriff's department for
posting of bonds in the municipal police departments in the
county may be in violation of article III, section 52, of
the Texas Constitution, in that it constitutes the lending
of credit of the county by the sheriff's department.
you advise that the circumstances that cause the
auditorts concern arise when a municipal police officer has
a person in custody charged with a non-municipal offense.
By means of computer the sheriff's office is advised of this
fact and the necessary bond and release forms are sent the
police department by the same medium. The municipal agency
obtains the necessary signatures on the bond, a police
officer approves the bond, and the suspect is released. The
bond money or the surety bond is delivered to the sheriff's
office the next day.
P- 6436
Honorable John Vance - Page 3 (JM-1217)
you relate that the foregoing plan is designed to
replace a system that resulted in holding a prisoner in a
municipal facility until such time as the person posting the
bond made a trip to the county jail to pay the bond directly
to the sheriff's department. In the event of a surety bond,
two or more trips between the county jail and municipal
facility were required to obtain the bond form, get the
necessary signatures, return same to the sheriff's depart-
ment and wait until the sheriff's department notified the
municipality to release the accused.
Article III, section 52, of the Texas Constitution
prohibits the legislature from authorizing "any county , . .
to lend its c;;iizfor z; ,~a; public money or [any] thing
of value in t Individual, association or
corporation whatsoever." &.g Attorney General Opinion
JW-522 (1986).
The court of criminal appeals in WcConathv State
528 S.W.2d 594 (Tex. Crim. App. - 1975), revI;?wed th;
purpose of a bail bond. The court stated:
The prime object or purpose of bail is to
secure the presence of an accused upon trial
of an accusation against him. It is not
revenue measure intended to be a substitutioi
for a fine, but is intended to secure the
trial of the alleged offender rather than
turn his securities or those of his bondsman
into a penalty. (Emphasis added.)
There is not only statutory authority for the police officer
to take and approve a bail bond under certain circumstances,
there is no transaction between the county and the defendant
whereby the county would be extending credit to the defen-
dant. See aenez&& Attorney General Opinion JM-749 (1987).
In those circumstances enumerated in articles 17.20 and
17.22 where a municipal police officer is authorized to take
the bail bond of the person he has in custody, we perceive
no reason why bail bonds may not be taken at places other
than at the county jail. The utilization of computers in
the method you have suggested would appear to avoid delay in
the bail bond process and afford a more timely method for
the sheriff's office to keep informed of non-municipal
violations charged by city police in the municipalities
within the county. We perceive no violation of article III,
section 52, of the Texas Constitution when bail bonds are
accepted by peace officers at places other than the county
p. 6437
Honorable John Vance - Page 4 (JM-1217)
jail under the provisions of articles 17.20, 17.21, and
17.22 of the Code of Criminal Procedure.1
SUMMARY
The acceptance of bail bonds by peace
officers for non-municipal offenses at loca-
tions other than the county jail pursuant to
the provisions of articles 17.20, 17.21, and
17.22 of the Code of Criminal Procedure is
not violative of article III, section 52, of
the Texas Constitution.
Verytmld+ &
MATTOX
Attorney General of Texas
1. Attorney General Opinion JM-760 (1987) addressed
the matter of the release of a defendant on a personal bond
under article 17.03 of the Code of Criminal Procedure.
Attorney General Opinion JM-760 concluded:
A peace officer may not, without authorization from
a court or magistrate (except in traffic cases, an
arresting officer may release an individual by ob-
taining his written promise to appear in court, art.
6701d, 9 148 V.T.C.S.), release on personal bond a
defendant charged with a misdemeanor.
P. 6438
Honorable John Vance - Page 5 (JM-1217)
i
.-.
MARYKELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 6439