            THE       ATIXBWNEY                  GENERAL.
                              OF      TEXAS
                           Ausm.       T-s      78711


                                   October 30, 1975



The Honorable Martin D. Eichelberger                  Opinion No. H-728
Criminal District Attorney
McLennan County                                       Re: Whether a person who has
Waco, Texas                                           been arrested on a warrant from
                                                      another county and released on
                                                      bond in the county in which he was
                                                      arrested should be rearrested if
                                                      the sheriff of the county which
                                                      issued the warrant believes the
                                                      surety is inrufficient.

Dear Mr.   Eichelberger:

     You have requested our opinion regarding whether a person who has been
arrested on a warrant from another county and released on bond in the county
in which he was arrested should be rearrested if the sheriff of the county which
issued the warrant believes the surety is insufficient.

      You state that the defendant was arrested by the sheriff of McLennan County
on seven misdemeanor warrants issued out of Dallas County.       Following his
arrest, defendant’s bail was set by a magistrate of McLennan County, and there-
after, the sheriff approved defendant’s bonds and released him from custody.
Subsequently, the sheriff of Dallas County returned the bonds and requested that
defendant be rearrested.     You inquire whether the sheriff of McLennan County
may properly rearrest defendant in these circumstances.

     Although a sheriff is authorized by article 17. 20 of the Code of Criminal
Procedure to accept bail bonds in misdemeanor cases, this provision applies
only where no bail has been set or where bail has been set by a judge and the de-
fendant is in jail. The controlling statute here, we think, is article 17. 09, which
provides that a defendant’s bond, once given, shall be valid for his personal
appearance “before any. . . court to which same may be transferred, and for any snd
all subsequent proceedings had relative to the charge. I’Section 1. The statute in-
dicates further that,. “when a defendant has once given bail for his appearance in
answer to a criminal charge, he shall not be required to give another bond in the
course of the same criminal action except as herein provided. ” Section 2.




                                      p. 3109
    The Honorable Martin D. Eichelberger         - page two (H-728)



    Section 3 of article   17.09 furnishes the only exception.    It provides that:

                         [ Wlhenever,   during the course of the action,
                       the judge or magistrate in whose court such
                       action is pending finds that the bond is defective,
                       excessive or insufficient in amount, or that the
                       sureties, if any, are not acceptable, or for any
                       other good and sufficient cause, such judge or
                       magistrate may, either in term-time or in va-
                       cation, order the accused to be rearrested,    and
                       require the accused to give another bond in such
                       amount as the judge or magistrate may deem pro-
                       per.

    The Court of Criminal Appeals has indicated that this provision is to be strictly
    construed. InExparte Coker, 319 S. W. 2d 120 (Tex. Grim. App. 1958), the relator,
    after being released on=000       bond, was thereafter indicted for murder with
    malice and placed in jail.   The judge had neglected, however, to order relator’s
    rearrest.‘: The Court held that, in the absence of such an order as provided in
    section 3 of article 275a (the predecessor of article 17. OS), relator was entitled
    to remain at liberty under the bond previously entered into before the magistrate.

.        In our opinion, the Coker principle is equally applicable to cases in which
    a defendant is arrested andleased      on bond in a county other than the one in
    which charges against him are pending. Only the .judge of the court where the
    case is pending may determine not to accept defendant’s bond and, as a conse-
    quence thereof, order his rearrest.    Although the judge may refuse to accept the
    bond “for any. . . good and sufficient cause, ” we do not believe that the sheriff of
    that county is authorized to refuse to accept the said bond for any reason. Article
    2372 p-3, V. T. C. S., dealing with the licensing and regulation of bail bondsmen
    does not presently apply to a bond written and accepted in McLennan County.
    Accordingly, it is our opinion that a defendant who has been arrested on a war-
    rant from another county and released on bond in the county in which he was
    arrested should be rearrested only upon the issuance of an appropriate order by
    the judge before whom charges against him are pending, in accordance with article
    17.09 of the Code of Criminal Procedure.




                                       p. 3110
.   L




        The Honorable Martin D. Eichelberger     - page three (R-728)



                                     SUMMARY

                            A person who has been arrested on a warrant
                         from another county and released on bond in the
                         county in which he was arrested should be re-
                         arrested only upon the issuance of an appropriate
                        .order by the judge before whom charges against
                         him are pending, in accordance with the provisions
                         of article 17. 09 of the Code of Criminal Procedure.

                                                -Very   truly yours,




        Opinion Committee


        jad:




                                      p. 3111
