Untitled Texas Attorney General Opinion ( 1987 )

July 29, 1987
Bonorable ~Joe Warner Bell Opinion No. ``-760
Trinity County Attorney
P. 0. Box 979 R&T: 'Whether a peace officer may,
Groveton. Texas 75845 without further authorization,
release on personal bond a defend-
ant charged with a misdemeanor
Dear Mr. Bell:
You ask whether a peace officer may, without further authoriza-
tion, release on personal bond a defendant charged with a misdemeanor.
We assume that your question does not refer to misdemeanor traffic
offenses. In those cases, an arresting officer may release an
individual by obtaining his written promise to appear in court.
V.T.C.S. art. 6701d. $148.
In reviewing your question, we first look to those statutes in
chapter 17 of the Code of Criminal Procedure which address the matter
of the release of a defendant upon personal bond.
~-
Art. 17.03
The court before whom the case is pending may,
in its discretion, release the defendant on his
personal bond without sureties or other security.
Art. 17.031
(a) A magistrate may. upon the setting of a
bond. release the defendant on his personal bond,
in which case the bond may be transferred to any
court wherein the case may later be heard, and
subsequent courts may not revoke the personal bond
except for good cause shown.
(b) Any magistrate in this state may release a
defendant on his personal bond where the complaint
and warrant for arrest does not originate in the
county wherein the accused is arrested if the
magistrate would have had jurisdiction over the
matter had the complaint arisen within the county
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Honorable Joe Warner Bell - Page 2 (JM-760)
wherein the magistrate presides. The personal
bond may not be revoked by the judge of the court
issuing the warrant for arrest except for good
cause shown.
(c) If there is a personal bond office in the
county from which the warrant for arrest was
issued, the court releasing a defendant on his
personal bond will forward a copy of the personal
bond to the personal bond office in that county.
Art. 17.04.
A personal bond is sufficient if it Includes
the requisites of a bail bond as set out in
Article 17.08, except that no sureties are
required. In addition, a personal bond shall
contain the defendant’s name, address and place of
employment, and the following oath sworn and
signed by the defendant:
‘I swear that I will appear before (the court
or magistrate) at (address, city, county) Texas,
on the (date), at the,hour of (time, a.m. or p.m.)
or upon notice by the court, or pay to the court
the principal sum of (amount) plus all necessary
and reasonable expenses incurred in any arrest for
failure to appear.’ (Emphasis added).
The matter of the release of a defendant upon bond being taken by
a peace officer is addressed in chapter 17, as follows:
Art. 17.05.
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; or it is taken from the
defendant by a peace officer if authorized by
Article 17.20, 17.21, or 17.22.
Art. 17.20.
The sheriff, or other peace officer, in cases
of misdemeanor, may, whether during the term of
the court or in vacation. where he has a defendant
in custody, take of the defendant a bail bond.
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Eonorable Joe Warner Bell - Page 3 (JM~760)
Art. 17.21.
In cases of felony, when the accused is in
custody of the sheriff or other peace officer, and
the court before which the prosecution is pending
is in session in the county where the accused is
in custody, the court shall fix the amount of
bail, if it is a bailable case and determine if
the accused is eligible for a personal bond; and
the sheriff, or other peace officer, unless itbe
the police of a city, is authorized to take a bail
bond of the accused in the amount as fixed by the
COUTt. to be approved by such officer taking the
same, and will thereupon discharge the accused
from custody. It shall not be necessary for the
defendant or his sureties to appear in court.
Art. 17.22.
In a felony case, if the court before which the
same is pending is not in session in the county
where the defendant is in custody, the sheriff, or
other peace officer having him in custody, 5
take his bail bond in such amount as may have been
fixed by the court or magistrate, or if no amount
has been fixed, then in such amount 8s such
officer may consider reasonable. (Emphasis
added).
The Interpretative Commentary following article 17.01 includes a
statement relative to a personal bond, as follows:
Under the new Code a person who is charged with
an offense way, if the court deems it wise, be
released on his own bond without the necessity of
sureties.
The Committee further determined that too often
an appellant was denied his right to appellate
review because of the ineptness of his lawyer who
had his client released pending appeal under a
bond rather than a recognizance or vice versa, so
all recognizances were eliminated from the new
Code and now one who has been convicted way secure
his release pending appeal only by entering into a
bond which was set by the committing magistrate or
changed by the trial court. Only one bond is
required unless the trial judge raises the amount
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Honorable Joe Warner Bell - Page 4 (JM-760)
of bail required or lowers it as the Code permits
him to do. (Emphasis added).
A Special Commentary following article 17.04 states
An innovation in the new Code permits the
court, in its discretion to release a defendant on
his personal bond without sureties or other
security. The requisites for such bond set forth
in Art. 17.04 (among other things), call for the
bond to reflect the defendant's name. address and
place of employment as well as his oath that he
will appear as ordered or pay amount of bond plus
expenses of arrest.
There are those defendants with ties to the
community such as a family, a job, etc., but who
do not have sufficient funds for a bail bondsman,
corporate surety, nor friends with sufficient
property to qualify as sureties under Art. 17.13.
The amendment was designed to allow such defendant
to be released on a personal bond and to return to
his family and his job pending trial. (Emphasis
added).
In Ex Parte Trillo, 540 S.W.Zd 728. 732 (Ct. Grim. App. 1976) the
matter of the trial court's refusal of a personal bond to a defendant
was before the court. The court stated:
The granting of a personal bond is a matter
within the discretion of the court before whom the
case is pending. Art. 17.03, V.A.C.C.P. See also
Art. 17.031, V.A.C.C.P.; Art. 2372p-1, Sec. 3,
Vernon's Ann. Civ. St+ Art. 2372p-2. Sec. 1,
Vernon's Ann. Civ. St. It follows that there
will be some situations where a persons1 bond will
not be appropriately within the discretion of a
trial court, and a personal bond should not be
granted. We therefore decline to hold that a
personal bond must be granted in all cases such
as the one at bar, since to do so would violate
1. Article 2371p-1, section 3, and article 2372p-2, section 1,
V.T.C.S., relate to the gathering, reviewing and providing a court
with information to enable a court to make a determination as to
whether an accused should be released on personal bond.
p. 3555
Eonorable Joe Warner Bell - Page 5 (JM-760)
the clear language of Art. 17.03. supra, that
this decision is a discretionary one. (Emphasis
added).
A peace officer way release a defendant upon bail bond under
conditions specified in articles 17.20. 17.21, or 17.22. The judge of
the court before whom the case is pending or a magistrate are the only
officials authorized to release a defendant on personal bond. Arts.
17.03, 17.031.
SUMMARY
A peace officer way not, without authorization
from a court or magistrate (except in traffic
cases, an arresting officer may release an
individual by obtaining his written promise to
appear in court, V.T.C.S. art. 6701d, 1148).
release on personal bond a defendant charged with
a misdemeanor.
P
JIM MATTOX
Attorney General of Texas
MARYKELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STBAKLPX
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3556