                             ATTORNEY            GENERAL OF TEXAS
                                           GREG       ABBOTT




                                            September l&2006



The Honorable Jaime Esparza                             Opinion No. GA-0457
District Attorney
34th Judicial District                                  Re: Whether City of El Paso police officers may
El Paso County Courthouse                               set reasonable bail for both misdemeanor and
500 East San Antonio Street, 2nd Floor                  felony arrestees pursuant to Code of Criminal
El Paso, Texas 79901-2420                               Procedure articles 17.05, 17.20, and 17.22
                                                        (RQ-0439-GA)

Dear Mr. Esparza:

        You ask two questions relating to current bail-setting processes inE1 Paso County.’ You ask
first whether “municipal police officers of the City of El Paso” may set “reasonable bail for both
misdemeanor and felony arrestees pursuant to articles 17.05, 17.20, and 17.22 of the Code of
Criminal Procedure.” Request Letter, supru note 1, at 1; see also TEX. CODE GRIM.PROC. ANN. arts.
17.05,17.20, 17.22 Vernon 2005). You also ask whether the El Paso County Sheriff may accept
into the county jail arrestees whose bail has been set by municipal police oflicers ifthe arrestee does
not appear before a magistrate within the time periods set forth in and consistent with articles 14.06,
15.17, and 17.033 of the Code of Criminal Procedure. See Request Letter, sup-a note 1, at 1; see
also TEX. CODE C&M. PROC. ANN. arts. 14.06, 15.17 (Vernon Supp..2006), art. 17.033 (Vernon
2005).

         You inform us that in 1994 the District Attorney for the 34th Judicial District created the
“District Attorney’s InformationManagement     System” or “DIMS” to allow the prosecutor “to screen
warrantless-arrest cases presented by peace officers.” Request Letter, supra note 1, at 1, 5. Under
DIMS, a peace officer who has made a warrantless arrest presents the case to “duly qualified
attorneys” that your office provides “to operate a 24-hour screening unit accessible to the El Paso
Police Department every hour of the day, every day of the year.” Id. at 5. The attorney then “makes
a charging decision within minutes or hours of a person’s arrest” and may tile the case within 24 to
72 hours of the offense if the case is accepted for prosecution. Id.

        You suggest that DlMS accelerates not only the prosecution of these cases but also
accelerates the bail-setting process. As you describe it, if the assistant district attorney provided


         ‘SeeLetter from Honorable Jaime Esparza,District Attorney, 34th Judicial District, to Nancy Fuller, Chair,
Opinion Committee, Office ofthe AttorneyGeneral of Texas, at 1 (Feb. 1,2006) (on file with the Opinion Committee,
also mailable al http:liwww.oag.state.tx.us)[hereinafterRequest Letter].
The Honorable Jaime Esparza - Page 2                    (GA-0457)




under DIMS accepts a case for prosecution, the arrestee “would be taken to the county jail and
accepted into the custody of the Sheriff of El Paso County.” Id. at 1. There, “under the. authority
of articles 17.05,17.20, and 17.22 of the Code of Criminal Procedure, if desired by the arrestee, the
Sheriff would take reasonable bail from the srrestee (based upon information relayed from the
arresting officer and the accepting assistant district attorney from a recommended bail schedule
approved by the El Paso County Council of Judges) and release him from custody.” Id. at 2; see also
Hokr v. State, 545 S.W.2d 463,465 (Tex. Crim. App. 1977) (stating that the authority to “take bail”
includes bail-setting authority). But you state that inNovember 2005 the sheriff stopped setting bail
for DIMS’ and now “requires that all arrestees appear before a magistrate for the setting of bail
    to receive      all of the warnings, admonishments, and information required by articles 17.033,
14.06, and 15.17 of the Code of Criminal Procedure before being allowed into the county jail.”
Request Letter, supra note 1, at 2. According to your letter, the City of El Paso is willing for its
municipal police officers to take over the bail-setting responsibilities

                  in both misdemeanor and felony cases on a case-by-case basis,
                  assisted by the recommended bail schedule approved by the El Paso
                  County Council of Judges          This would be accomplished by the
                  assistant district attorney who accepts the case for prosecution
                  relaying the recommended bond amount from the schedule to the
                  arresting officer along with any other pertinent information such as
                  any .prior criminal history for the arrestee. The arresting officer
                  would have final authority to set the bond for the arrestee before the
                  arrestee is taken to county jail.

Id. at 2. You ask, therefore, whether municipal police officers may set bail in a warrantless arrest
case and, if so, whether the sheriff may accept into the county jail an arrestee whose bail has been
set by a municipal police offtcer. See id. at 1.

I.       Relevant Statutes

        A peace officer, which includes for purposes of the Code of Criminal Procedure a municipal
police officer, may arrest a person without a warrant in limited circumstances. See TJZX.CODECRIM.
PROC. ANN. art. 2.12(3) (Vernon Supp. 2006) (listing individuals who serve as peace officers). For
example, an officer may arrest a person who commits a felony or an offense against~the public peace
in the officer’s presence or view. See id. art. 14.01 Vernon 2005) (“Offense within view”).
Likewise, a peace officer may, without a warrant, arrest a person found in a suspicious place under



          ‘A letter subtnitted to this offke suggests that, contrary to your assertions, it is not the sheriff but assistant
districtattorneyswho have been settingbail underDIMS. See Letterfrom TheresaCaballero,Attorneyat Law,to Nancy
Fuller; Chair, Opinion Committee, Offke of the Attorney General of Texas, at 1 (Mar. 23,2006) (on file with the
Opinion Committee). This office cannot resolve disputes offact in the opinion process. See Tex. Att’y Gen. Op. No.
GA-0156(2004) at IO(stating that fact questionscannot be atwvered in the opinion process). We accordinglyassume
that the facts you, as the requestor, have provided are correct. See Tex. Att’y Gen. Op. No. GA-0249 (2004) at 2
(assumingthat the facts as set forth by the requestinggovernmentalbody are correct for purposes of an opinion despite
the assertion of numerous fact issues by a briefer).
The Honorable Jaime Esparza - Page 3            (GA-0457)




circumstances that reasonably show the person is guilty of a felony or breach of the peace or a person
whom the officer has probable cause to believe has assaulted another person, resulting in bodily
injury. See id. art. 14.03(a)(l)-(5), (b), (d), (g) (Vernon Supp. 2006) (“Authority ofpeace officers”);
see also id. art. 14.02 (Vernon 2005) (“Within view of magistrate”); id. art. 14.04 (“When felony
has been committed”).

         Chapter 17 of the Code of Criminal Procedure, from which you cite several articles, governs
the setting of bail for persons arrested on criminal charges. The word “bail” is defined as “the
security given by the accused that he will appear and answer before the proper court the accusation
brought against him, and includes a bail bond or a personal bond.” Id. art. 17.01 (Vernon 2005); see
also id. arts, 17.02-.03 (defining “bail bond” and providing for personal bond). Article 17.033
requires that aperson who has been arrested without a warrant be released on bond within a specified
time:

                        (a) [Unless an attorney for the prosecution requests a
                postponement under subsection (c)l, a person who is arrested [for a
                misdemeanor] without a warrant and who is detained in jail must be
                released on bond, in an amount not to exceed $5,000, not later than
                the 24th hour after the person’s arrest if . . . a magistrate has not
                determined whether probable cause exists to believe that the person
                committed the offense. .

                         (b) [Unless an attorney for the prosecution requests a
                 postponement under subsection (c)l, a person who is arrested [for a
                 felony] without a warrant and who is detained in jail must be released
                 on bond, in an amount not to exceed $10,000, not later than the 48th
                 hour after the person’s arrest if. . a magistrate has not determined
                 whether probable cause exists to believe that the person committed
                 the offense.

Id. art. 17.033(a)-(b).

         Under article 17.05, a bail bond is “entered into either before a magistrate,      or.   ajudge
     ; or it is i&en.     by apace ofJicer if authorized by Article 17.20, ,17.21, or 17.22.” Id. art.
                                                                                            .
17.05 (emphasis added). “The amount of bail to be required” in a particular case IS within the
discretion of “the court, judge, magistrate or officer taking the bail” in accordance with the
constitution and statutory rules. Id. art. 17.15 (emphasis added). Article 17.20 states that a peace
officer may “take” of a defendant a bail bond “in cases of misdemeanor,          whether during the term
of the court or in vacation, where he has a defendant in custody.” Id. art. 17.20. Under article 17.21,
in a felony case where “the court before which the prosecution is pending is in session in the county
where the accused is in custody,” the court must determine whether and in what amount to set bail,
“and the sheriff, or. other peace officer, unless it be the police of a city, is authorized to take a bail
bond of the accused in the amount as fixed by the court            .” Id. art. 17.21. And under article
 17.22, in a felony case where the appropriate court “is not in session in the county where the
The Honorable Jaime Esparza - Page 4                 (GA-0457)




 defendant is in custody, the sheriff, or other peace officer having him in custody, may take his bail
 bond in such amount as may have been fixed by the court or magistrate, OYifno amount has been
jked, then in such amount as such of$cer may consider reasonable.” Id. art. 17.22 (emphasis
 added).

II.      Analysis

         From materials you submitted with your request, it appears that the issue you ask us to
resolve may be implicated in pending litigation. See Terrell v. City ofEl Paso, No. 04-5 1281,2006
WL 1049041, at *l (5th Cir. Apr. 20, 2006) (dismissing appeal for lack of jurisdiction without
prejudice to refile and noting that the “appeal is ineffective at this time” because claims and issues
remain pending in district court); Battakis v. City ofE1 Paso, No. 05-CV-402-FM (W.D. Tex. tiled
Nov. 30,2005). This office’s long-standing policy is “to refrain from answering questions pending
in the courts.” Tex. Att’y Gen. Op. No. JM-600 (1986) at 1; accord Tex. Att’y Gen. Op. No.
GA-0399 (2006) at 3 n.5. You have represented to this of&e, however, that the issue you raise is,
in fact, not before a court, and we accept your representations.         See Tex. Att’y Gen. Op. No.
GA-0249 (2004) at 2 (assuming that the facts as articulated by the requesting governmental body are
correct). We will therefore answer your questions.’

        You aver that articles 17.20 and 17.22 permit a municipal police officer to set and take bail.
See Request Letter, supra note 1, at 12. We consider a peace officer’s authority in misdemeanor
cases and felony cases separately.

        Article 17.20, relating to misdemeanor cases, permits a sheriff or other peace officer
“whether during the term of the court or in vacation, where he has a defendant in custody, [to] take
of the defendant a bail bond.” Tax. CODE CFXM.PROC. ANN. art. 17.20 (Vernon 2005). Article
17.20 on its face authorizes a peace officer to set a bail bond for a defendant arrested on a
misdemeanor charge, whether or not the defendant has been assigned to a particular court or whether
or not the court is in session. See also Hokr, 545 S.W.2d at 465 (concluding that in certain
circumstances a peace officer “may set and take a bail bond” before the defendant is formally
charged). We accordingly conclude that article 17:20 authorizes City of El Paso municipal police
officers to set reasonable bail for defendants arrested on misdemeanor charges.

        Articles 17.21 and 17.22 together regulate the taking of bail in felony cases. Article 17.21
 governs those felony cases in which a prosecution is pending. See TEX. CODE GRIM.PROC. ANN. art.
 17.21 (Vernon 2005). In such cases, “the court shall fix the amount of bail        and determine if the
 accused is eligible for a personal bond; and the sheriff, or other peace officer, unless it be the police



           ‘We answer only the statutoryquestionsyou expresslyask. We do ndt answerany of the constitutionalissues
 that a brief submitted by another attorneyto this office raises. See Brief f?om Sam Snoddy, Attorney at Law,to Nancy
 Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas, at IO-15 (Mar. 2,2006) (on file with the
 Opinion Committee). The AttorneyGeneral is authorizedto respond to opinion requests from only those persons listed
 in GovernmentCode section 402.042(b). See TEX.GOV’TCODE            ANN.5 402.042(b)(Vernon 2005). The briefer is not
 an authorizedrequestor. See id:
The Honorable Jaime Esparza - Page 5           (GA-0457)




of a city, [may] take a bail bond      in the amount as tixed by the court.” Id. Then, under article
17.22,

                if the court before which the [felony case] 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, may take his bail bond in such
                amount as may have been fixed by the court or magistrate, OYifno
                amount has been fLued,then in such amount as such officer may
                consider reasonable.

Id. art. 17.22 (emphasis added). Article 17.22 provides for those felony cases in which aprosecution
is pending but the appropriate court is not in session or in which a prosecution is not yet pending.
Thus, under article 17.22, a peace officer may take a bail bond of a defendant whose bail has been
set by a court, but if no prosecution is pending, a peace officer may set and take a “reasonable”
amount as bail. Id. Consequently, to answer your question with respect to felonies, article 17.22
authorizes City of El Paso municipal police officers to set reasonable bail for defendants whose
prosecutions are not yet pending before a court.

        We next consider your second question, whether the El Paso County Sheriff may accept into
the countyjail a defendant whose bail has been set by amunicipal police officer “without the arrestee
appearing before a magistrate for up to 24 hours in a misdemeanor case and for up to 48 hours in a
felony case before the requirements of articles 14.06, 15.17, and 17.033 of the Code of Criminal
Procedure must be satisfied.” Request Letter, supra note 1, at 1.

         A sheriff is the keeper of the countyjail and “shall safely keep all prisoners committed to the
jail by a lawful authority.” TEX. LOC.GOV’T CODEANN. 3 351.041(a) (Vernon 2005). Under Code
of Criminal Procedure article 2.18, the sheriff must place a prisoner in jail when the prisoner “is
committed to jail by warrant from a magistrate or court.” TEX. CODEGRIM.PROC.ANN. art. 2.18
(Vernon 2005).

        On the other hand, a sheriff may accept into the county jail a prisoner lawfully arrested by
a municipal police officer. See id. art. 45.015 (Vernon Supp. 2006); Tex. Att’y Gen. Op. No. JM-
151 (1984) at 2. The fact that a municipal police officer set bail for a defendant under article 17.20
or 17.22 does not make an arrest unlawful.

         A sheriff may accept into the county jail a defendant arrested by a municipal police officer
before the defendant has been taken before a magistrate. But under article 17.033(a), a defendant
arrested on a misdemeanor charge who is detained in jail “must be released on bond              not later
than the 24th hour after the person’s arrest if.   a magistrate has not determined whether probable
cause exists to believe that the person committed the offense.” TEX. CODEGRIM.PROC.ANN. art.
17.033(a) (Vernon 2005). And under article 17.033(b), a defendant arrested on a felony charge who
is detained in jail “must be released on bond     not later than the 48th hour after the person’s arrest
if      a magistrate has not determined whether probable cause exists to believe that the person
committed the offense.” Id. art. 17.033(b); seealso id. arts. 14.06(a), 15.17(a) (Vernon Supp. 2006)
The Honorable Jaime Esparza - Page 6          (GA-0457)




(requiring that a defendant must be brought before a magistrate for an article 15.17 proceeding
“without unnecessary delay, ‘but not later than ~48 hours after the person is arrested” so that a
magistrate may inform the defendant of his or her rights). Accordingly, a defendant charged with
a misdemeanor whose bail has been set by a municipal police officer but who is detamed injail must
be brought before a magistrate within 24 hours of the arrest if a magistrate has not determined that
probable cause exists to believe the person committed the offense. See id. art. 1,7.033(a) (Vernon
2005). Likewise, a defendant charged with a felony whose bail has been set by a police officer but
who is detained in jail must be brought before a magistrate within 48 hours of the arrest if a
magistrate hasnot determined that probable cause exists to believe the person committed the offense.
See id. art. 17.033(b).
The Honorable Jaime Esparza - Page 7         (GA-0457)




                                     SUMMARY

                      Under Code of Criminal Procedure article 17.20, a City of El
              Paso municipal police officer may set reasonable bail for defendants
              arrested on misdemeanor charges. And under article 17.22, a City of
              El Paso municipal police officer may set reasonable bail for
              defendants arrested on felony charges ifno prosecution has yet been
              tiled.

                      The El Paso County Sheriff may, but is not required to, accept
              into the county jail a defendant whose bail has been set by a
              municipal police officer. If a magistrate has not determined whether
              probable cause exists to believe that such a defendant committed the
              offense charged, however, the defendant must be brought before a
              magistrate within 24 hours of an arrest on a misdemeanor charge or
              48 hours of an arrest on a felony charge. See TEX. CODE GRIM.PROC.
              ANN; art. 17.033(a)-(b) (Vernon 2005).

                                             Very truly yours,




                                             Attome@eral         of Texas



KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
~Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

 Kyrnberly K. Oltrogge
 Assistant Attorney General, Opinion Committee
