Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE A-TTORNEY GENERAL OF TEXAS
AUSTIN
Honorable L. A. Vsn Sly40
cocnty Attorney, Fort Bend County
mohmood, Texas
Your letter of
Y this de>d3xzent on the
dlo'ivs:
Section 11, zlrticls 1 of the State Constitution, pro-
le3:
"~11 prisoners shall be bailable by sufiicient
Sureties, unless for capital offenses, when the proof
io evident; but this provision shall not ba 30 con-
struzd aS to prevent bUi1 arter indictment found upon
.
licmor4ble t. A. Vim Slylce, pae 2
examination of the evidedoe, in such MM&C as may
. be presoribed by law.”
Article 5, Vernon’s Annotated Codeof Crlfminal Prooed
u,re, contains exactly the S;M~ prOYlsiOn as set forthrin. the ror
going 0onatltutionaZ provision. .I
ReferFlng.tO the fOregOing PrOVit3iOna it 1: stated in
Texas Jurlsprudenoe, Vol. 5, page 811:
.I
“Under these provisions bail is a matter of
right to all person8 aooused of any orime, except
where there is proof evident or conimisslon of a
oapital offense which renders probable the InfliO-
tion of the death penalty. The yule is that aiL-’
prisoners are bailable ; the exoeption is where
rro&; is evident of the oommisslon of a capital
*e
“Although the term *all persons’ is used in
the constitution, it is evident that the provision
aaa meant, not to require all prisoners in all air-
oumsttioea to be bailed, but to refer to a class
oi prisoners, eaOh and all of whom shall. be bailed
tioept as provided in the oonstltution. 3ut it has
been said that there are several aonsiderations
leading pertinently to the OonOlusion that prisonera
betore trial and oonvlct Ion are those who were de-
signed to be scoured this absolutely right to bail.”
(See Ex Porte Ezell, 40 Tex. 451)
Chapter 1, Title 5, Vernon’s Annotated Code of Crimin
Procedure, pertains to arrest without warrant in the c3ses enume:
4ted. in this chapter. Article 217 or said Chapter, provides:
“In each case enumerated in this ohapter, the
person making the arrest shall lm~ediately take the
person arrested before the magistrate who may have
ordered the arrest, or before the nearest magistrate
where the arrest waa made without an order.”
Chapter 2 of ~said Title 5, Vernon’s Annotated Code of
blninal Procedure, pertains to arrests under vfarrant, and Arti-
Cle 233 of said ohapter, provides:
“The officer, or other person executing ~1
warrant o,f urrcst, shull take the perom :rhon he
is directed to ;Irrest forthwith before the m~gis-
trate who issuks the wurrrtnt, or before the mIgis-
trate named in the warrant.”
hrticles234, 235, 230, 237 and 238, Vernon’s .;nnotated
nte of Criminal Procedure, read as follows:
q*rirtiale 254. One arrested in one county for
feiony committed in snother shall in nil ceses be
ttlken before some msgistrnte of the county where it
v;ss alleged the offense wr1s co::i;sitted.**
..rt icle 239. !‘(;ne -arresta+ for 3 r;Ladewa.lor
shall be taker, tmfore J mgistrste of the county
where the arrest takes place who shall take bzil and
transmit imnedistely the bsnd so tcken to the court
having jurisdiction ol’ the offense.”
,‘,rticle 236. *If the accused roils or refuses
to give bA1, us provided in the preceding article,
he shall be cornmftted to jsil of the county where
he was xrested; end the magistr::te cozczittlng him
3~111 f’orthwith notify the sheriff of the county ln
which the offense is alleged to have been ccxmittcd
of the arrest and commitxent, which notice nay be
given by telegraph, by rail or by other written
notice.”
llrt icle 237. “The sheriff receiving the notice
s&l1 fsrthwich go or send for the prisoner and hive
him Sroup,ht before the proper court or sag:strate,”
article 238. “If the proper officer of the county
where the offexsc is alleged to hzve been coxiited
does not dexnd the prisoner rnd toke charge oT him
within thirty days fron the day he is cc.“1:3itted, suck
grisoncr sfxll tie discharged from custody.”
Articles 450, 451, 453, 454, 455, 456, 457, 45.5 2nd 459,
rnon’s AMotated Code of Criminnl Procedure, provide:
nor ,ble L. .i,Vd s.lyke, 2 .EO 4
Article 450. *In cases 0r crrest for felony
. in the wunty whore the prosecation is pending, dur-
ing a term of court, the oFricer asking the arrest
may take bail as provided in article 287.”
irrticle 451. *In cases 0r arrest for relony
less than aapital, mede during vacation, or msde in
another county than the one in which the prosecution
is pending, the sherirf may take bail. In euah cases,
the amount of the bai 1 ehsll be the exee as is in-
dorsed u.?on the capiae; and, if no amount be indorsed
upon the cepias, the sheriff shall require a reascnible
amount 0r bail.”
rgrticle 453. Wn capics may be executed by any
constable or other peace officer. In felony cases,
the defendant must be delivered forthwith to the sher-
iff of the county where the .arrest is made, together
with the urit under which he was taken.”
,.rticle 454. “Any officer naklng an arrest un-
der a capisa in a misdemeanor may in term time or
vscction tzke bull of the defendant.”
Article 455. ‘Yhere an crreet is made under
a capiae in a capital case, the sherlrr shall conrine
the defendant in jail, and the capiae shall, for thst
purpose, be a sufficient aommitment. This article is
applicable when the arrest is made in the county where
the prosecution is pending.
.,rticle 456. “In each capitsl case where a defen-
dant is arrested under a capiae in a county other than
Chat in which the case is pending, the sherirr who ar-
rests, or to whom the defendant is delivered, shall aon-
vey hti forthvilth to the county from which the capias
issued and deliver him to the sheriff of such couCty.fl
Article 457. “Cohen an arrest has been szde and a
bail bond taken, such bond, together with the cupiss,
shall be returned forthrwith to the proper court.”
.
irticlc 155. “If a Cefezdnnt be placed in jell
out of the county of the prosecution, on R Cclony, he
shall be dlschsrced fro3 CU8tOtiy if Ilot 3pFliCd for
and token by the sheriff uf the proper county b&ore
the end of sixty days fron the d?y Of bls coxiticnt.
Ii the chsrCe is 3 misdescenor, 30 s:!sll be disch3rCcd
fro? custody 1f not nyrlicd for and tekon by the sherlfr
of the proper county bcforc the end oi’ t?n days from tho
dqy ot his coxmitmcnt.”
!,rticle 459. Time preceding article shall not ‘IP-
ply Ii t!ic defsdnnt has been placed ir jail out CC *Jl?
county f-r the wnnt of B ssfe jail in the proper GountY.”
Your sttcnti:n is directed to Ch3pt*:r 48 Title 5, Ver-
non’s ¬ jtcd Code of Crimin31 Frocedurir, r’ert?ining tz bei1
and rccoCnizance. :re do not deer. it necrHeary to quote the
articles c.oht?.ined in this chnptcr.
In vie:4 of the fore@@ statutory 9 ~rovlslons,
provisions, you
you
arc respectiully advised thst We Sheriri’s
‘
r-6 depa?tment
depa-tment hsa
hsa no
authority to hold a person 0 ,&Eed xlth
‘
.LUI a felony or G riede-
aecinor 13 jnil for 7ny le* &h of thete for the purLlose or :nsking
&her reasons
easons whowhstsoevcr
tsoevcr xithout
.:i thou t Giving
Civlng
m isvestigstion Or ‘??jtY to .m3%C
a%~ bsil as
bsil as provided
provided by by the
the
the accused an oFnor*” -
foregoing statutes.