                                          GREG       ABBOTT




                                            February 12,2007


The Honorable Roy DeFriend                             Opinion No. GA-05 15
Limestone County and District Attorney
Limestone County Courthouse                            Re: Whether a bail bond may be accepted in a
200 West State Street, Suite 110                       Texas county for a person jailed in another state
Groesbeck, Texas 76642                                 (RQ-05 12-GA)

Dear Mr. DeFriend:

        You ask whether bail may be made in Limestone County to secure the release of a person
held in an out-of-state jail on an offense committed in Limestone County.' "'Bail' is the security
given by the accused that he will appear and answer before the proper court the accusation brought
against him . . . ." TEX.CODECRIM.PROC.ANN.art. 17.01 (Vernon 2005). A "bail bond" is a
written promise by the defendant and his sureties to the state that the defendant will appear before
a court or magistrate to answer a criminal accusation, secured by an amount of money set by a judge,
a magistrate, or under some circumstances a peace officer. See id. arts. 17.02, .05, .08, .11, .15.

        Your question arises from a situation described by the Limestone County Sheriff. The
Limestone County District Clerk issued a capias in connection with a motion to revoke an
individual's p r ~ b a t i o n .A~ "capias" is defined as "a writ issued by the court or clerk, and directed
'To any peace officer of the State of Texas', commanding him to arrest a person accused of an
offense and bring him before that court." Id. art. 23 .O1 (Vernon 1989). See Ballard v. State, 33
S.W.3d 463,466 (Tex. App.-Houston [1st Dist] 2000, pet. ref d) (stating that Texas case law tends
to treat a capias and a warrant interchangeably in probation revocation cases and for Fourth
Amendment purposes). The individual was arrested in Kansas pursuant to the Limestone County
warrant. See Request Letter, supra note 1, at 1. The warrant contained the bail amount, and a
licensed Limestone County bondsman went to the Limestone County Sheriff and sought to make a
bond for the accused on the Limestone County charge while she was in a Kansas jail.3 See TEX.
CODECRIM.PROC.ANN. art. 23.12 (Vernon 1989) (in bailable felony cases, the court fixes the
amount of bail, and the clerk endorses this amount on the capias).


         'Letter £?om Honorable Roy DeFriend, Limestone County and District Attorney, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (July 18, 2006) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter].

        2Telephone Conversation with Roy DeFriend, Limestone County and District Attorney (Nov. 1,2006).

        3Telephone Conversation with Roy DeFriend, Limestone County and District Attorney (Oct. 30,2006).
The Honorable Roy DeFriend - Page 2              (GA-05 15)



        You inform us that Limestone County "is a bail bond board county." See Request Letter,
supra note 1, at 1. Thus, the licensing of bail bond sureties in your county is governed by
Occupations Code chapter 1704. See TEX.OCC.CODEANN.ch. 1704 (Vernon 2004 & Supp. 2006).
A license issued by the Limestone County Bail Bond Board pursuant to Occupations Code chapter
1704 authorizes a person to act as a bail bond surety in Limestone County but not outside of the
county. See TEX.OCC.CODEANN.5 1704.151 (Vernon 2004); Tex. Att'y Gen. Op. Nos. GA-0002
(2002) at 1, DM-59 (199 1) at 2; see also TEX.OCC. CODEANN. 5 1704.163 (Vernon Supp. 2006)
(attorney for defendant may act as surety for defendant without a bail bond license in any county in
the state). Whether a particular bail bond surety may provide bail set by the judge or magistrate of
another state for a person awaiting extradition to Texas is a matter of that state's law. See, e.g.,KAN.
CM. PROC.CODEANN. $5 22-2716,22-2802,22-2806 (West 1995).

       Texas law, however, will determine whether the Limestone County Sheriff may accept a
bond for a Limestone County offense while the accused is jailed in another state. Chapter 17 of the
Texas Code of Criminal Procedure sets out the provisions for granting bail for a person accused of
committing an offense in Texas, and these include provisions authorizing a sheriff to accept bail.
See TEX.CODECM. PROC.ANN.ch. 17 (Vernon 2005 & Supp. 2006), id. arts. 17.20-.22 (Vernon
2005). Article 17.20 provides that the sheriff, "where he has a defendant in custody," may take a bail
bond of the defendant in cases of misdemeanor, whether it is during the term of the court or in
vacation. Id. art. 17.20 (Vernon 2005). Article 17.21 allows a sheriff to accept a bail bond in a
felony case:

                        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. . . is authorized to take a bail bond of the accused in the
                amount as fixed by the court, 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.

Id. art. 17.21. If the court in a felony case is not in session in the county where the defendant is in
custody, article 17.22 provides that "the sheriff. . . having [the defendant] in custody, may 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 as such officer may consider reasonable." Id. art. 17.22.

        Each of these provisions authorizing the sheriff to accept bail requires the accused to be in
the sheriffs custody. Under the Code of Criminal Procedure, a person in the sheriffs custody is
under his control. See id. arts. 15.01 ("warrant of arrest" directs a peace officer to "take the body of
the person accused of an offense"); 15.17 (Vernon Supp. 2006) (person having custody of arrested
person shall take the person before a magistrate). Pursuant to article 17.21, "the court before which
the prosecution is pending" shall fix the amount of bail if the court "is in session in the county where
The Honorable Roy DeFriend - Page 3            (GA-05 15)



the accused is in custody." Id.art. 17.21 (Vernon 2005). A person jailed in another state is not in
the Limestone County Sheriffs custody, nor is the person in custody in the county where the
prosecution is pending. Thus, chapter 17 provides no authority for the Limestone County Sheriff
to accept bail for an offense committed in Limestone County while the accused is jailed in another
state.

        Provisions in chapter 23 of the Code of Criminal Procedure authorize the arresting officer
or the sheriff to accept bail. See id. arts. 23.10 (arrest for a felony in the county where the
prosecution is pending during a term of court); 23.1 1 (arrest for a felony in another county or when
the court is in vacation); 23.14 (arrest under capias in a misdemeanor) (Vernon 1989). The authority
granted by these provisions is, however, contingent on an "arrest," whereby the arresting officer has
placed the accused under restraint or taken custody of him. See id. art. 15.22 (Vernon 2005)
(defining "arrest"). Article 23.01, which requires a peace officer "to arrest a person . . . and bring
him before [the] court" demonstrates that the officer must have physical control of the person. Id.
art. 23.01 (Vernon 1989). The Limestone County Sheriff does not have custody of a person jailed
in another state and accordingly has no authority to accept bail under chapter 23.

      We conclude that the Limestone County Sheriff has no authority to accept bail for an offense
committed in Limestone County while the accused was jailed in another state.
The Honorable Roy DeFriend - Page 4          (GA-05 15)



                                     S U M M A R Y

                     A Texas sheriff has no authority to accept bail for an offense
              committed in the sheriffs county if the accused is jailed in another
              state.




                                          ke-
                                             Very truly yours,




                                         y
                                             Attorney ~ W aofl Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
