                          AIJ~%‘RJ. -          78711
WAaaJoSRa4 (URN8
                           '-hIgunt15, 1966




      Honorable Joe Rear8ber             OpillOa AO. c-740
      county Attorney
      Barr18 County                      R8r Cash dqwr1t.d Illlieu
      HowtOn, Taxa8                      or 8ur8tle8 on bail bond.
       Dear Xr. Re8wb8rr
             In an opinion lqlest of thlr 0rflca               Ja9 pore the
       ,roilowtiag
                 quertlonrr                                      .'

                   "1.    wher0 8 PO~CO orric8r haa’ 8 wumt               qr
                          urrrt  In huld #holIlng b4il b M              Mount
                          cutaln retby th8C0urtand 88idPaac8
                          orflcor pi4~08 4 mtrdd    WU.  4m8t
                          undu ruch rurant 4nd 64id hrd6itt
                          tender8to     the   Pwi     Officer4 proparbond
                          together with the propu rrountpr<caah ln
                          lieu of haying luretl.r rlgn hlr bond, la
                          the mace orricu r8qulrod t0 @k8 ruch 0a6h
                          and lrrue receipt for 8~   aad aec8pt raid
                          bond u thou@ prop- 8uretl.r bad r&nod
                          8-T
                   a 2. uh0 40848 trio t0rr         'orrice,     u    urod in
                          Article 17.02 Cod0 of Crm                  Proc8dure,
                          88M?

                   * 3.   Artlcl~'17.o2 rtwJ8m'pa!& 'the,d8r@ndmt
                          upon uocutloa of ruch ball bond raj do-
                          po8it~mn   th0 ~~8t0disn r mid8 0r th0
                          Courtsla whiab thg                   tioa lr paadlng.'
                          a.     Doea thl, man that-ruah rundr murt be
                                 ncolYod by 4 Ju8t1c. ol ttloP.GG
                                 the co\raQ or Dlrtrlcf Clrrk?
                          b.     w   8uch fUrid be roc8lcrodby tbr ahufrr
                                 sad turned over to fb0 JWtlCe Of th8
                                 PWO, countyalrrkor Dlrtrlct Oluk?
                          C.     uy tha court do81    to the 8hulff to
                                 b0 the CU#tOdian 0Y i\md# Or fh8.CoWt
                                 Qi mttur   whur cuh In lieu or aura-
                                 tina en band ir received?
                                                                    .




Honorable   Joe Reaweber, page 2                 (c-74o)


                It4.     Ir euch iund8 ror cash bond8 U6   de-
                         posited with a Justice or the Peace, but
                         the final prosecution la in county Court
                         or District Court, may the Cluk or the
                         County Court or District court dlrburre
                         the cash bond to the Defendant upon proper
                         order of hle Court?”

      All atatuted referrOdto in this opinion will be
Articles of Vernon’s Code of Crknlnal Fmcadure.

      Article          17.02   provides   ba   follows:

                “A ‘ball bond’ Is a Written under-g    en-
                 tered into by the defendant md hlr ruretlea
                 for the bppearbnce of the pr&nclpel therein
                 befors some court or magl6trate to answer a
                 criminal accusation; provided, however, that
                 the defendant upon execution of such ball
                 bond may deposit with the custodlsn of funds
                 of the court In which the prosecution la
                 pending current money of the United  States
                 in the amount of the bond In lieu of having
                 euretiss signing the IWTI~. Any caeh tunds
                 deposited under this Article shall be rc-
                 celpted for by the officer receiving the 8-e
                 and shall be,reiunded to the defendant if
                 and when the defendant complies with the
                 conditions of his bond, and upon order    of the
                 court. ”

      It will be noted that Article 17.05 provider that   a
ball bond may be taken rrom the derendant by a peace  ofricer
who has a warrant of arrest or commitment.   Then Articles
17.20, 17.21, and 17.22 ret out the cIrcumatanc48 when a
peace officer may take a ball bond from a defendant.    The
first of these, Article 17.20, provides ae.follows:

                 “The aherlfr, or other peace ofricer,In
            ’     caaee. of mIsdeme8nor, ha8 authority, whether
                  during the term 0r the court or in vbcatlon,
                  where ns has a defendant In custody under a
                  warrant of commitment, warrant 0r arrest,
                  or caplas, or where the accused   has been
                  eurrendered by hla ball, to take of the
                  defendant a ball bond.’

       Article          17.21 states b8 follows:
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Honorable       Joe Rel)WOb6r, page     3     (C-740)


                    "In Cas48 Or rOiO~, when the 6CCU86d 18 in
                     CU8tOdy 0r the sherirr or other  p6aC6 orricer,
                     and the Court before which the pro86cutlon Is
                     pending I8 In 84sBIOn In the county where the
                     accused is in CUstOdy, the court rhaU    fix
                     th4 WUnt    Of ball, if It I8 a~briiabl~ Cb84
                     end doterhine if th6 accured 18 6ligibl6 for
                     a personal bond; and the rherlfr, or other
                     peace officer, unleer It be the police of a
                     city, IS authorized to take a ball bond of
                     the accused lnthe amount a8 fixed by the
                     court, to bs approved by ruch officer taking
                     the 8ame and will thereupon dlrcharge the
                     aCCU84d frOQ CU8tOdy.   It 8hall not br n6cessary
                     for the defendant Or hi8 8Ur6ti68 t0 app6ar in
                     court. "                         .

          Article      17.2.2   provider a8 fO&lOW8:

                    "In a i4lOny CtL86, if the Court before which
                     the 8ae i8 pending 18 not in 86SSiOn:i.n the
                     county where the derrndant la ilPCU8tOdy,
                     the 8h4rirr, or othrr  peace officer having
                     him in custody, may take hi8 ball bond In
                     such amount as,may have been fixed by.the
                     court or magI8trat6, or ii no bamunt has been
                     iixed, then In such aDount as 8&h orricer
                     may conrrlder r4a80nab16.w

       Th4 abOV0 quoted hrtiCl68 #et Out the circumstances
when peace officer8 ar6 4UthOrit6d to t&6 bail bonds of
the defendants.    Bowever, your firat quertlon la whether or
not a peaC6 OrriC6r,    a88Uing    the CirCuPs8t8JE68     outlined
In the above al-tic168 are pr686nt, ntu8t -6          a caeh bond
tendered by a defendant in 116~ of -11           bond rigned by
eurotier (La 18 provided in ArtlCl8 17.02.         Ue MIwer     this
question In the afrlnaatlvo.       Article 17.02    giV68   the defen-
dent the right to put up Ca8h ia lieu       Of tUSVing suretlaa      sign
b bail  bond.   We are not unaware that Article 17.02 requires
thbt the cash bond, if tendered In lieu of 8uretles, be de-
posited with the custodiM       of th6 fund8 Of the Court; that
18 the clerk of the court or the jUstlC6 Or the peace as
the caee may be.     H3uwaver, ii the court 18 not In 84S8iOn at
the time the ca8h bond 18 tendered, and the cIrcum8tence8 of
the above quoted article8 are net md a sherirr or other peace
officer would be entitled to accept the defendbnt'r bond,
we are of the opinion that the peace OffiC6r must accept b
cash bond tendered by a defendant.        In view of Branbh~ v. acilnp,
242SX    482 (Tex. Clv. App. 1922) It would appear that the
 sheriff has the duty to accept a bond under theme circumstances.
Honorable   Joe Resweber,   page 4     (c-740)


Since th6 8heriff would be under such a duty, and since
Article  17.02 giV48 a defendant, 44 4 matter Of right, the
privilege of posting a ca8h bond rather than a surety bond,
It Is our opinion that a peace officer Is required to take
cash tendered by a defendant and accept a ball bond as though
proper sureties had signed same.

      You next Inquire as to what Is included by the term
“officer” bs that term Is used In Article 17.02. The pertinent
portion of that Article is b4 follows:

                   .Any cash bond8 deposited under this
              &Icle     shall be receipted for by the
              officer recelvlng the same and rhall be
                 funded to the defendant If and when the
              ~~fendsnt   contplies with the condltlons of
              his bond, and u on order of the court.”
              (Buphaais added P

       It will be not&d that the word “officer’” bs u8ed In
Article 17.02 was evidently intended to be much broader
than the term *peace offScer”.   Articles 17.02 and 17.20
set out the official8 who may accept bail bonds.    In add$tIon,
Article 17.02 provides that cash tendered by b defendant ln
lieu of sureties on a ball bond shall be deposited with the
custodian of funds of the court In which prosecution Is pend-
ing.   It is our oplnlon, therefore, that the word “officer”
as used In Article 17.02 Includes all of those offlclals set
out In Article4 17.05 and 17.20, b4 well b4 the custodian
of funds of the court ln which the prorecutlon 18 pending,
which would be the clerk Of the Court or 8 jU8tiC6   Of the
peace.
       We have already 8tated that it is our opinion that
a peace officer, If the cFrcum8tanc48 outlined    in Articles
17.05, 17.20, 17.21, bnd/Or 17.22 are met, ISU8t accept the
cash bond tendered by b defendant.     It therefore follows that
b defendant  Is not himself required to deposit the fund8 with
the custodian of the court aa I8 provided for In Article 17.02.
However ,’the officer receiving the cash, If he 18 not the
custodian of the funds of the court, should deposit the sum
of money~recelved with the custodian.     We are of the opinion
that there is no necessity or authority for b court to appoint
a sheriff as custodian of the funds since    the clerk of the
court or the justice of the peace, b4 the cbse may be, Is al-
ready charged with that duty.     The sheriff or other peace
officer accepting the cash bond should siniply receipt the bond
to the defendant and then turn the money ovur to the clerk of
 the court or the justice of the peace, whichever 1s the bppro-
prlate officer.    We note however that If the court ln which
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I




    Honorable   Jo6 ReaWeber,   pq6   5        (c- 740)



    the Ca8h bond 18 giVM  do68 not h6V6 jWi#diCtiOlh to t
    th6 defendant. the ca8h bond #hOtid be tr8nrf6rr.d to Tt 4
    clrrk Or the 9XUt   tht h68 ruch juri#dictioa. It 18 our
    opinion that th6 jU8tiCO Of the p6(Lc6,Or clerk Of th6 County
    COWt, WhM ruch a ttM#fOr take8 ptiC6, 8hould trrn8f.r
    thr casp bond along with the other paferr~ la the 0~6 to the
    dirtrict clerk. htiCl6 17.30 vImOn 8 CO& Or cd&ml
    Procedure.

                            SUMMARY
                            ----m-w
            A pebce officer must accept  cash in ii8U of
            the Si&IIbtUrO Of 8Ur4ti88 When tendrrrd 68
            8 bond by a defendant If raid pebC6 officer
            la authorized by A&&Z168 17.05, 17.20, 17.21,
            and/or lx.22 to t&r a ball bond. Fhe tern
            'oiricer a8 the term 18 wad In &tic16       17.02
            includes N'iyp6r8OIl Who i8 WlthOrit6d t0 rOCOiV0
            ebld CbSh in.ii6~ Or 6i51&~48 Or ILU6ti48,
            whether it be a peace offlcrr, jU8tiC6 Of th8
            pebce, or the Clerk Of the appropriate court.
            It is not n6CO88lU'y that #aid cash b6 pa.ld w
            the defendant directly to the CU#todti Of the
            funds of the Court, but rather #aid cub suuat
            eventually be dsposited with that OrrlCOt. If
            such cash 18 *cCOpt6d by aomdone Other tbbth6
            custodian Or the fund8 Of the court; that OfflCOr
            should turn th6 mcmy over t0 said curtedlan.
            !fhecourt ha8 no authority to de#i&Mt6 th6 rherirr
            to'b4 the custodian Of th6 iundr. Th6 cub bond
            8hbll be- ref'dded to th6 drfMdMt,    if and When
            the defendant CO@108    with th6 condition8 Or
            his bond, and upon Order or the court.

                                          ]lOUr# V6ly      tl'llly,

                                          wAoQolm       cm
                                          Attom6y       &3Iiettkl   Or T6Xh6




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    OPINION COMMITTEE
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