                             QBffice    of the I?lttornep          @eneral
                                           Btate of Z!Lexae
DAN MORALES
 ATTORNEY
      GENERAL                              November 19,199l


    Honorable Richard C. Terre11                     Opinion No. DM-57
    District Attorney
    Jim Wells and Brooks Counties                    Re: Whether a justice of the peace may
    P. 0. Drawer 3157                                set bail by telephone, and whether a
    Alice, Texas 78333                               magistrate may establish pre-set bail
                                                     amomts by posting a schedule at the
                                                     county jail (RQ-69)


    Dear Mr. Terrell:

            You ask whether a justice of the peace may set bail by telephone for a person
    who has just been arrested. We find no authority for a justice of the peace to set
    bail in this manner.

            A justice of the peace is a “magistrate” for purposes of the provisions of the
    Code of Criminal Procedure. See Code Crim. Proc. art. 2.09. In the sequence of
    events following a person’s arrest, the earliest stage for which we find specific
    statutory authorization for a magistrate’s setting bail is that provided for in articles
    14.06 and 15.17. See uLso id art. 16.01 (magistrate to determine amount or
    sufficiency of bail at examining trial). Articles 14.06 and 1517 provide that a
    person making an arrest shall ‘without unnecessary delay” take the person arrested,
    or have him taken, “before” a magistrate. The magistrate must at that time inform
    the arrestee of the accusation, give him “Miranda” warnings as to his right to remain
    silent, his right to counsel, etc., and inform him of his right to an examining trial.
    The magistrate must allow the arrestee opportunity to consult counsel “and shall
    admit the person arrested to bail if allowed by law.“r



            ‘The requirementsas to advisingthe arresterof the accusationand of his rights,and admitting
    him to bail, are spceihd in article 15.17. Articte 14.06 simply requires that an arrestee be brought
    before a magistrateand directs the magistrateto “performthe dutiesdescribedin Article15.17.” We
    need not addresshere to what extent articles14.06and 15.17-distinct       functions.




                                             P.    289
Honorable Richard C. Terre11 - Page 2             (DM-57)




       While article 14.06 merely directs the arresting officer to take the arrestee
“before” a magistrate, article 15.17 provides that “the arrested person may be taken
before the magistrate in person or the image of the arrested person may be
broadcast by closed circuit television to the magistrate.” Given the provisions for
closed circuit television communication in article 15.17, we do not believe that the
provisions of either article contemplate that their requirement of “taking before” a
magistrate may be met by a-more restricted form of contact such as telephone
communication alone.

       It should be noted that our conclusion here does not mean that an arrestee
will never be able to be released on bail until such time as he is brought before a
magistrate under articles 14.06 or 15.17. Article 17.20 permits a peace officer to set
bail for all misdemeanors. Article 17.22 permits a peace officer to set bail for
felonies where the court before which the case is pending “is not in session in the
county where the defendant is in custody” and where no bail amount has theretofore
been fixed. See gene&y Attorney General Opinion H-856 (1976); see also Tex.
Const. art. I, 90 11, lla (providing for certain instances when bail may be denied).

        In so concluding, we recognize that the entire process of setting bail may
involve some communication by telephone. We limit our response here to what we
understand to be the narrow issue you present: whether a justice of the peace, upon
notification of a person’s arrest and prior to the wrestee’s appearance before a
mugirtmte, may set bail by telephone. Again, we do not believe he has such
authority.

       You also ask whether it is “proper for a magistrate to have pre-set bail bond
amounts by posting a schedule at the county jail? Article 17.15 of the Code of
Criminal Procedure provides that the factors to be considered in setting bail include
the detainees ability to make bail, the circumstances of the alleged, offense, and the
future safety of the victim. Texas courts have stated that the factors to be
considered also include the bail applicant’s work record, family ties, residency, prior
miminal record, and adherence to previous bail bond conditions. See, eg , Ex patte
Go&y, 685 S.W.2d 440 (Tex. App.-Houston [lst Dist.] 1985, no writ); Ex parte
willman, 695 S.W.2d 752 ,(Tex. App.-Houston [lst Dist.] 1985, no writ). Attorney
General Opinion H-856 noted that the amount of bail “must be determined by the
Constitution and rules set out in article 17.15, rather than by any arbitrary ‘schedule
of bond amounts.‘” See dso Tex. Const. art. I, 5 13 (“excessive bail shall not be
required”). Accordingly, it is our opinion that bail amounts must be determined on
a case-by-case basis, not pursuant to a pre-set schedule of amounts.




                                       P.   290
Honorable Richard C. Terrell - Page 3              (DM-57)




                                   SUMMARY

              A justice of the peace lacks authority to set bail by
         telephone for a person who has just been arrested and who has
         not appeared before a magistrate. Neither is it proper for bail
         amounts to be set according to a pre-set schedule. Bail must be
         determined on a case-by-case basis.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WJLL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




                                        p.   291
