Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MAlTOX December 27, 1984
, torney General
! pmmscowl Building Eouorable Patrick J. Ili.dley opinion No. JN-271
Io.soxl2549 Bell County Attorney
*uslln, lx. 7S711- 2549 P. 0. Box 474 Re: Whether e sheriff must
512l4752501
Belton. Texas 76513 accept a bail bond to obtain
1 ex 9101874-1397
1 ecqder 512N73.0299
the release of (I person held
on a warrant or caplas issued
In another county
i I Jacke.qn. Suite 700
I IISS, lx. 75202-4!x9
Dear Ur. Rldley:
2 14n42a944
You inform us that a problem is presented in the application of
‘ ?4 Albsrh Am, SUIIS IO article 2372p-3. sect:lon 14(a). vhen a person is arrested and charged
El Paso. lx. 799052793 with s crininsl violation occurring in one county, and, while he is in
915i333aa detention, it is discovered that a capias or a warrant has been issued
on that Individual by rmother county. The accused offers to post bail
1001 TSXSS. suite 700 bonds on all criminal offenses through a bail bondsmen licensed by the
Houston, TX. 77092-3111 bail bond board In the county in vhich the accused vas arrested, but
1 la23-5595 not licensed in the clxmty in which it Is discwcred thst a cepias or
a verrant hae been lenucd.
909 Sr.xdway. Suite 312
1 >bock.TX. 794015479
In that regard you ask:
E v747.5239
Pursusnt to Vernon’s Civ. Ann. St. Art. 2372p-3,
sec. 14(a), 1s s sheriff in the county of arreat
( R N. Tsnlh. Suile B
I Alh. lx. 79591.1995
required to sccept s bail bond from a bondsmen
5121682.4547 licensed In the county of arrest. when that bond
ia offered to obtein the release of the arrested
person who :.(I held on a warrant [or capiaa] issued
; ) MSh Plazs, SUllS 4w lo a county other then the one in which the person
Ssn Antonio. TX. 781052797
vaa arrested?
51212254191
We conclude that article 2372p-3, section 14(a), V.T.C.S., requires a
An Equal Opporlunllyl sheriff in the count:r of arrest to accept and approve a bail bond
Allirm4ilve Acllon Employor offered by a bail bondsman licensed in the county of arrest to obtein
the release of the dlccused who is being held on en out-of-county
capias or warrant. This construction of article 2372p-3, section
14Ws does not conflict with other provisions of the Texas Code of
Criminal Procedure and is consistent with the intent and purpose of
the Ball Bondsman Act,
Article 2372p-3. section 14(e) provides:
lionorsble Patrick J. Ridley - PaRc 2 (JH-271)
Sec. 14. (a) In my county or district cese in
vhich the posting of bonds Is required 88 e
condition of release, !:he sherfff shell accept or
approve e bond poated_),y a licensed bondsman only
in accordance with this Act end the rules
prescribed by the bo,;rd, but e sheriff may not
refuse to accept a 6~11 bond from a licensed
bondsman who meets thtiyrequirements of Subdivision
(4) or (5) of Subaect Fm (a) of Section 6 of this
-Act.
Id. (Rmphasis added).
In 1973, the Sixty-third I.oglslature declared that the business
of executing bail bonds we8 e business effecting the public interest,
end, es 8 result, the Bail Bondsman Act we8 enacted. V.T.C.S. art.
2372p-3. The Supreme Court of Texas upheld the constitutionality of
the act In 1974. See Robinson ‘v. Hill, SO7 S.W.2d 521 (Tex. 1974).
The ect has been emaed three lrj.mes in order to effectuate the intent
of the legislature, which is to preserves the constitutional right to
bail ‘end to provide practical procedures governing the giving or
making of bail bond end other security to guarantee the appearnnce of
the eccused. -See V.T.C.S. art. :!372p-3, 51 as emended.
As e preliminary considerr~tion, article 2372p-3. section 14(a).
V.T.C.S.. does not regulate the “taking of bail”; it merely prescribes
the procedure whereby .a sheriff shall accept or approve a bond posted
by a licensed bondsman. Id. The Court of Criminal Appeals has
adopted this office’s interp~;ttlon of the concept “take” or “taking”
bond to mean the regulation of the amount of bail to be posted by the
accused. See Rokr v. State. Ii45 S.W.2d 463 (Tex. Crlm. App. 1977)
(adopting Attorney General Opinion R-856 (1976)) interpreting article
17.20 of the Code of Criminal Procedure). We agree that this
construction should also be spp,l:Led when it is referenced elsewhere in
the Code of Criminal Procedurlr. See Code Crim. Proc. erts. 15.18
(arrest for out-of-county offense),T.OS (when bail is given). 17.22
(bail in felony cases), 23.11 (sheriff may take bail in felony case).
23.12 (court shell fix bail fr felony), 23.14 (bail in misdemeanor
cases), 23.17 (return of bail ard capias).
We believe that erticle 2372p-3. section 14(a). V.T.C.S.. is
mandatory because it prescribes the circumstances by which a public
officer shell perform his statutory duty. See State V. Fox. 133
S.W.2d 987 (Tex. Clv. App. - ,Austin 1939. vx ref’d); Sutherland
stat. Construe. 557.14 (4th ea.). Thus, a sheriff is required to
accept or approve a bond posted by a bondsman licensed in accordance
with the Bail Bondsman Act and the rules prescribed by the county bail
bondsman board. The sheriff i,; also required to accept or approve a
bond posted by a licensed bail bondsman who has furnished the county
P. :.:109
Honoreble Petrfck J. Ridlay - I?nge 3 (JM-271)
beil bond board with lnformeti~l~ regarding security for the peyment of
bell bonds in the form of a sworn epplication. See V.T.C.S. ert.
2372p-3. sec. 14(e); V.T.C.S. art. 2372p-3, sec. 6TThe mandate is
especielly appllceble when the bondsman is licensed in the county of
errest beceuae the sheriff hat; the necessary financiel information to
determine whether there will be sufficient security to lneure the
presence of the eccused.
In regsrd to your first question, there is no apparent conflict
between article 15.18 of the Code of Criminal Procedure end section
14(e) of article 2372~3. lwtlcle 15.18 of the Code of Criminal
Procedure provides:
One arrested undel a warrant issued in a county
other then the one in which the person is arrested
shell be taken before e magistrate of the county
where the errest takes place who shell take bail.
if allwed by lev. and immediately transmit the
bond taken to- the ccurt having jurisdiction of the
offense.
-Id. (Emphasis added).
Thus, if the sccused 11; srrested under a werrent Issued in a
county other then the one In ,s!hich he was errested, the accused shell
be tsken before a. local magistrate “vho shell take bail, if sllwed by
lev, end Immediately transmit the bond taken to the court. . . .” See
Lyle6 v. State, 653 S.U.Zd 775 (Tex. Grim. App. 1983) (Clinton. J..
concurring, p. 780. n. 2). Likewise, the Texas Court of Criminal
Appeals held that article H.18 is e procedural mandate by the
legislature for one arrested under a werrant Issued in another county.
See Gent V. State. 649 S.W.2d 30 (Tex. Grim. App. 1983). cert. denied,
104 s. ct. 122 (1983).
The sheriff’s duty to accept bond under article 2372p-3. section
14(a). V.T.C.S.. remains. Th! magistrate regulates the amount of bail
end the sheriff is then required to allow the accused the right to
post bond. If the bond Is powed by a bondsman licensed in the county
of errest. section 14(a) requfces the sheriff to accept or approve the
bond so long es the licensed b,ondsman has complied with the provisions
of the Bail Bondsman Act. Once the bond is posted on the
out-of-county warrant, the accused should be released from the custody
of the sheriff, end the bond is then transmitted to the court having
jurisdiction in the county where the werrant was issued. -See Code of
Crim. Proc. ert. 15.18.
In regard to your second question, the sheriff is again required
to accept or approve a bond posted by a licensed bondsman if the
accused has been detained on an out-of-county capias. V.T.C.S. ert.
Honorable PAtriCk J. Ridley - Pc,g,e 4 (J~-271)
2372p-3. SeC. l&(A). The CApiAll iA A comnd t0 Any PeACe Officer Of
the State of Texas to ArreAt the named accused and bring him before
the court at A time prescribed therein. See Code Cria. Proc. arts.
23.01, 23.02. A CAP~AA may be issuedin either A felony or
misdemeanor case. See Code Crlm. Proc. arts. 23.03. 23.04. In
certein instances thzheriff lnay regulate the amount of bail to be
posted by the Accused. See Code Grim. Proc. arts. 23.11. 23.14.
Article 23.17, Code of Canal Procedure, provides that “when An
arrest has been made and A bail taken, such bond, together with the
CApiAA, shall be returned fc~rthwith to the proper court.” Id.
Therefore. the sheriff is still required to comply with the mandat;;?;
IAnpage of article 23?2p-3, section 14(a). V.T.C.S.. and accept or
approve bail posted by A bai:. bondsman licensed in the county of
Arrest. We believe that this c~x~struction of article 2372p-3, section
14(A). will not frustrate the pl’rpose of the Bail Bondsman Act.
S IJMMARY
--
Article 2372p-3, section 14 (A), V.T.C.S.,
requires A sheriff i:~ the county of arrest to
accept and approve A bail bond offered by A bail
bondsman licensed fn the county of arrest to
obtain the release of the accused who is being
held on an out-of-county caplas or warrant.
&Ig”~?l&
Attorney General of Texas
TOMGREEN
First Assistant Attorney Generd
DAVID R. RICHARDS
Executive Assistant Attorney G(!rlerAl
RICK GILPIN
Chairman. Opinion Coaunlttee
Prepared by Tony Guillory
Assistant Attorney General
p. 1211
n
Honorable Patrick J. Ridley - Ps.ge 5 (JH-2713
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin. Chainnan
Jon Bible
Colin Carl
Tony Guillory
Jim noellinger
Jennifer Riggs
Nancy Sutton
r. 1212