                                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




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    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




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