Untitled Texas Attorney General Opinion ( 1999 )

OPP,CE OF THE ATTORNEY GENERAL STATE OF TEXAS
JOHN CORNYN
March 23, 1999
The Honorable Michael P. Fleming Opinion No. JC-0024
Harris County Attorney
1019 Congress, 15th Floor Re: Procedure for receiving and refunding a cash
Houston, Texas 77002-1700 bail bond posted pursuant to article 17.02 of the
Code of Criminal Procedure (RQ-1190)
Dear Mr. Fleming:
Your questions require us to determine the proper procedures for receiving and refunding a
cash bail bond posted pursuant to article 17.02 of the Code of Criminal Procedure. Bail is “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 a personal bond.” TEX. CODE GRIM. PROC. ANN.
art. 17.01 (Vernon 1977). Article 17.02 defines a bail bond and allows a defendant in custody to
deposit cash with the court in lieu of having sureties sign a bond in order to obtain the defendant’s
release and secure his appearance in court. The statute provides:
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 prosecution is pending current money of
the United States in the amount of the bond in lieu of having sureties signing
the same.
Id. art. 17.02. Thus a bail bond may be either a cash bond or a surety bond. The surety for a surety
bond is often, but not always, a professional bail bondsman. An Interpretive Commentary to the
Code of Criminal Procedure explains:
Members of the [Code Revision] Committee were disturbed by cases where
people of means who were capable of posting a cash bond, but who were
away from home when arrested and were required under the existing statutes
to pay a professional bondsman an exorbitant fee in order to make bail.
Id. art. 17.01 interp. commentary. With respect to receipt and refund of a cash bail bond, article
17.02 provides:
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 Honorable Michael P. Fleming - Page 2 (JC-0024)
the defendant complies with the conditions ofhis bond, and upon order ofthe
court.
Id. art. 17.02,
Your questions regard a common procedure in which a cash bail bond is paid not by the
defendant, but by a third party. You tell us that in Harris County when a cash bond is paid by
someone other than the defendant the receipt is issued in the name of the person who made the
deposit, and when a refund is ordered the cash is returned to the same person. We consider whether
this procedure is consistent with the requirements of article 17.02.
Your first question is whether a party other than the defendant may deposit cash in lieu of
having sureties sign a bail bond in order to obtain the release of the defendant. We conclude that a
third party may do so. Although article 17.02 states that “the defendant . may deposit with the
custodian of funds of the court” cash in lieu of a surety bond, we think that article 17.02
contemplates that a person other than the defendant might present the cash to the court and deposit
it to secure the defendant’s release. While a statute ordinarily should be construed in accordance
with its plain language, it should not be construed in a way that leads to an absurd result or one
infeasible of execution. See Barshop v. Medina County Underground Water Conservation Dist., 925
S.W.2d 618, 629 (Tex. 1996) (“Courts should not read a statute to create an absurd result.“)
(citation omitted); TEX. GOV’T CODE ANN. 5 3 11.02 1 (Vernon 1998) (“In enacting a statute, it is
presumed that a just and reasonable result is intended; [and] a result feasible of execution is
intended .“). A defendant in custody is unlikely to have sufficient cash in his possession to pay
the bail, and such a defendant obviously is not in a position to retrieve the cash elsewhere himself.
We do not think that the legislature intended to preclude a defendant from posting a cash bail bond
under suchcircumstances. SeeExparteDeaton, 582 S.W.2d 151,153 (Tex. Crim. App. [Panel Op.]
1979) (“The language of the statute as well as the commentary regarding same makes it clear that
the Legislature intended that a defendant be given the option or privilege under Article 17.02, supra,
of posting cash in lieu of having sureties sign the bond.“). We conclude, therefore, that a person
other than the defendant may deposit cash to obtain the release of the defendant on a cash bail bond
except that, as we shall explain, the deposit is viewed to have been made by the defendant.
Again, article 17.02 states that “the defendant. may deposit” cash in lieu of a surety bond.
Article 17.02 further provides that a cash bail bond deposit “shall be refunded to the defendant” if
the conditions of the bond are met. From the view ofthe court and the court officer receiving a cash
bail bond deposit, the cash belongs to the defendant even ifthe cash was deposited by a third person.
Article 17.02 is not concerned with the source of the cash, but only its role as the security for the
defendant’s subsequent appearance in court. Whatever arrangement the defendant makes with the
third party who presents the cash to the court-whether the money belongs to the defendant or is a
gift or loan from someone else-is a matter between those persons. Unless the third party signs the
bond as a surety, the cash deposit is a cash bail bond and is considered to belong to the defendant.
Your second question asks in whose name a receipt should issue if a cash bail bond is
deposited by someone other than the defendant. You point out in the memorandum attached to your
The Honorable Michael P. Fleming - Page 3 (JC-0024)
letter that article 103.010 of the Code of Criminal Procedure requires a county officer who collects
“fines or fees in a criminal case” to issue a receipt showing “the name of the person paying
the money,” and you suggest that this requirement conflicts with article 17.02. See Memoradum
from Honorable Michael P. Fleming, Harris County Attorney, to Honorable Dan Morales, Attorney
General 3 (Aug. 31, 1998) (on file with Opinion Committee). We doubt that a cash bail bond
deposit is a “fine or fee” within the meaning ofarticle 103.010, but we need not decide that question.
Even if a cash bail bond deposit is a “tine or fee,” for the reasons stated above the “person paying
the money” in such a case is the defendant, even if a third party presents the cash to the court officer.
Because a cash bail bond is viewed by the court as belonging to the defendant, the receipt for a cash
bail bond deposit should issue in the name of the defendant.
Your third question asks to whom a cash bail bond retind should be paid if the cash deposit
was presented to the court by a person other than the defendant. Again, because a cash bail bond is
considered by the court to have been deposited by the defendant, a cash bail bond refund should be
paid to the defendant upon compliance with the terms ofthe bond and order ofthe court. In addition,
we know of no statutory requirement that the third party be given notice that any re&md will be paid
to the defendant. We do not consider whether there is a statutory prohibition on notifying the third
party who paid the cash bail bond on the defendant’s behalf that the cash will be returned to the
defendant
Finally, you ask whether a cash bail bond refund must be withheld until any fines assessed
against the defendant are paid. You ask this question in light of sections 154.025 and 154.045 ofthe
Local Government Code, both of which prohibit a county from drawing a warrant “in favor of a
person, or an agent or assignee of a person, until the person owing the debt [to the state, the county,
or a salary t?md] is notified that the debt is outstanding and the debt is paid.” TEX. LOC. GOV’T
CODE ANN. 5 154.025 (Vernon Supp. 1999) (applying to county with population of 190,000 or less)
(emphasis added); id. 5 154.045 (applying to county with population of more than 190,000).
A tine imposed in a criminal case generally is not considered to be a “debt” because a debt
is generally defined as an obligation arising from a contractual agreement. Our courts have held that
a criminal tine is not a “debt” for purposes of article I, section 18 of the Texas Constitution, which
prohibits imprisonment for debt. See Thompson v. State, 557 S.W.2d 521, 525 (Tex. Crim. App.
1977); see also TEX. CONST. art I, 5 18 interp. commentary (Vernon 1997) (“In general, the liability
to pay money growing out of contract constitutes a debt within the meaning of the constitutional
guaranty.“). Even when a debt exists, a warrant may not be withheld under the authority ofa warrant
withholding statute if a contrary statute compels issuance of a warrant under the circumstances. See
Tex. Att’y Gen. Op. Nos. JM-255 (1984) at 4; O-4655 (1942) at 5. Accordingly, even if a criminal
tine were a “debt,” we conclude that sections 154.025 and 154.045 may not be invoked to withhold
a cash bail bond refund ordered pursuant to article 17.02 of the Code of Criminal Procedure.
Article 17.02 prohibits a court from withholding a cash bail bond refund from a defendant
who owes tines to the court if the defendant has otherwise complied with the conditions of the bond
and is due a refund. By statute a bail bond “shall be valid and binding upon the defendant and his
sureties, if any, thereon, for the defendant’s personal appearance before the court or magistrate
The Honorable Michael P. Fleming - Page 4 (X-0024)
designated therein, as well as before any other court to which same may be transferred, and for any
and all subsequent proceedings had relative to the charge.” TEX. CODE GRIM.PROC. ANN. art. 17.09
(Vernon 1977). Our Court of Criminal Appeals has said that under this statute “[t]he prime object
or purpose of bail is to secure the presence of an accused upon trial of an accusation against him.
It is not a revenue measure intended to be a substitution 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.” See
McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975) (citation omitted); accord,
Trammel Y. State, 529 S.W.2d 528, 529-30 (Tex. Crim. App. 1975); De Leon v. Pennington, 759
S.W.2d 201,202 (Tex. App.- San Antonio 1988, orig. proceeding). Article 17.02 provides that
cash bail bond funds “‘shallbe refunded to the defendant ifand when the defendant complies with
the conditions of his bond, and upon order of the court.” TEX. CODE GRIM. PROC. ANN. art.17.02
(Vernon 1977). Accordingly, the court held in McConathy that a bond could not be forfeited for
violation of a probationary condition to pay a fine when the defendants had appeared in court as
required by their bonds and where no “subsequent proceedings had relative to the charge” remained
in the case. McConathy, 528 S.W.2d at 598. When the defendant has complied with the conditions
of his bond and is due a cash refund, a court officer may not withhold the refund until the
defendant’s tines are paid.
The Honorable Michael P. Fleming - Page 5 (X-0024)
SUMMARY
A person other than the defendant may make a cash bail bond deposit
with the court officer to secure the defendant’s release from custody pursuant
to article 17.02 of the Code of Criminal Procedure. The receipt for a cash
deposit should be issued in the name of the defendant. While the court
officer is not required to notify the third party depositor that the funds will be
returned to the defendant, no statutory prohibition precludes such
notification. If the defendant complies with the conditions of the bond, and
upon court order, the bond funds must be returned to the defendant. The
court officer may not withhold a cash bail bond refimd until fines assessed
against the defendant are paid.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Barbara Griffin
Assistant Attorney General