                                     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.




                                            p.   3553
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




                                           p.   3554
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.




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    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




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