               OFFICE OF THE A-TTORNEY GENERAL OF TEXAS
                                         AUSTIN



Honorable L. A. Vsn Sly40
cocnty Attorney, Fort Bend County
mohmood, Texas




                  Your letter     of
 Y this      de>d3xzent     on the
 dlo'ivs:




                  Section   11,   zlrticls   1 of the State   Constitution,   pro-
   le3:


                 "~11 prisoners        shall be bailable    by sufiicient
          Sureties,   unless for       capital   offenses,  when the proof
          io evident;   but this       provision    shall not ba 30 con-
          struzd aS to prevent         bUi1 arter indictment found upon
                                                                   .



    licmor4ble t.   A. Vim Slylce, pae   2




          examination of the evidedoe,       in such MM&C as may
.         be presoribed by law.”

                 Article 5, Vernon’s Annotated Codeof Crlfminal Prooed
    u,re, contains exactly the S;M~ prOYlsiOn as set forthrin. the ror
    going 0onatltutionaZ   provision.                      .I
                ReferFlng.tO the fOregOing PrOVit3iOna it    1: stated   in
    Texas Jurlsprudenoe, Vol. 5, page 811:
                                                              .I

                  “Under these provisions  bail is a matter of
          right to all person8 aooused of any orime, except
          where there is proof evident or conimisslon of a
          oapital offense which renders probable the InfliO-
          tion of the death penalty.      The yule is that aiL-’
          prisoners are bailable ; the exoeption is where
          rro&; is evident of the oommisslon of a capital
                *e
                 “Although the term *all persons’ is used in
          the constitution,   it is evident that the provision
          aaa meant, not to require all prisoners     in all air-
          oumsttioea   to be bailed,  but to refer to a class
          oi prisoners,   eaOh and all of whom shall. be bailed
          tioept as provided in the oonstltution.       3ut it has
          been said that there are several aonsiderations
          leading pertinently to the OonOlusion that prisonera
          betore trial and oonvlct Ion are those who were de-
          signed to be scoured this absolutely     right to bail.”
           (See Ex Porte Ezell, 40 Tex. 451)

                   Chapter 1, Title 5, Vernon’s Annotated Code of Crimin
     Procedure,    pertains to arrest without warrant in the c3ses enume:
      4ted. in this chapter.    Article 217 or said Chapter, provides:

                  “In each case enumerated in this ohapter, the
            person making the arrest shall lm~ediately take the
            person arrested before the magistrate who may have
            ordered the arrest, or before the nearest magistrate
            where the arrest waa made without an order.”

                 Chapter 2 of ~said Title 5, Vernon’s Annotated Code of
      blninal Procedure, pertains to arrests under vfarrant, and Arti-
      Cle 233 of said ohapter, provides:
         “The officer,   or other person executing ~1
  warrant o,f urrcst,   shull take the perom :rhon he
  is directed  to ;Irrest forthwith  before the m~gis-
  trate who issuks the wurrrtnt, or before the mIgis-
  trate named in the warrant.”

          hrticles234,  235, 230, 237 and 238, Vernon’s         .;nnotated
nte of Criminal Procedure,  read as follows:


        q*rirtiale 254. One arrested in one county for
  feiony committed in snother shall in nil ceses be
  ttlken before    some msgistrnte  of the county where it
  v;ss alleged    the offense wr1s co::i;sitted.**


        ..rt icle 239. !‘(;ne -arresta+ for 3 r;Ladewa.lor
  shall be taker, tmfore J mgistrste       of the county
  where the arrest takes place who shall take bzil and
  transmit imnedistely     the bsnd so tcken to the court
  having jurisdiction    ol’ the offense.”

           ,‘,rticle 236. *If the accused roils     or refuses
   to give bA1, us provided in the preceding           article,
   he shall be cornmftted to jsil     of the county where
   he was xrested;      end the magistr::te  cozczittlng     him
   3~111 f’orthwith notify     the sheriff  of the county ln
   which the offense     is alleged to have been ccxmittcd
   of the arrest and commitxent, which notice nay be
   given by telegraph,     by rail or by other written
   notice.”
         llrt icle 237. “The sheriff receiving   the notice
   s&l1 fsrthwich    go or send for the prisoner   and hive
   him Sroup,ht before the proper court or sag:strate,”
          article    238. “If the proper officer    of the county
   where the offexsc      is alleged to hzve been coxiited
   does not dexnd the prisoner rnd toke charge oT him
   within thirty     days fron the day he is cc.“1:3itted, suck
   grisoncr    sfxll  tie discharged from custody.”


         Articles   450, 451, 453,     454, 455,    456, 457,   45.5 2nd 459,
rnon’s AMotated   Code of Criminnl     Procedure,    provide:
nor ,ble   L. .i,Vd   s.lyke,   2 .EO 4




            Article 450. *In cases 0r crrest for felony
    . in the wunty  whore the prosecation   is pending, dur-
      ing a term of court,  the oFricer asking the arrest
      may take bail as provided in article    287.”

           irrticle 451. *In cases 0r arrest for relony
     less than aapital,   mede during vacation,   or msde in
     another county than the one in which the prosecution
     is pending, the sherirf   may take bail.    In euah cases,
     the amount of the bai 1 ehsll be the exee as is in-
     dorsed u.?on the capiae; and, if no amount be indorsed
     upon the cepias,   the sheriff  shall require a reascnible
     amount 0r bail.”


             rgrticle 453. Wn capics may be executed by any
      constable or other peace officer.     In felony cases,
      the defendant must be delivered   forthwith to the sher-
      iff of the county where the .arrest is made, together
      with the urit under which he was taken.”

             ,.rticle 454. “Any officer naklng an arrest un-
      der a capisa in a misdemeanor may in term time or
      vscction tzke bull of the defendant.”

             Article   455. ‘Yhere an crreet is made under
      a capiae in a capital    case, the sherlrr  shall conrine
      the defendant in jail,     and the capiae shall,  for thst
      purpose, be a sufficient     aommitment. This article    is
      applicable    when the arrest is made in the county where
      the prosecution    is pending.

             .,rticle 456. “In each capitsl    case where a defen-
      dant is arrested under a capiae in a county other than
      Chat in which the case is pending, the sherirr      who ar-
      rests, or to whom the defendant is delivered,      shall aon-
      vey hti forthvilth   to the county from which the capias
      issued and deliver    him to the sheriff   of such couCty.fl

             Article  457. “Cohen an arrest has been szde and a
       bail bond taken, such bond, together with the cupiss,
       shall be returned forthrwith to the proper court.”
  .




              irticlc 155.   “If a Cefezdnnt be placed in jell
      out  of the county of the prosecution,     on R Cclony, he
      shall be dlschsrced  fro3  CU8tOtiy if Ilot 3pFliCd   for
      and token by the sheriff   uf the proper county b&ore
      the end of sixty days fron the d?y Of bls coxiticnt.
      Ii the chsrCe is 3 misdescenor,    30 s:!sll be disch3rCcd
      fro? custody 1f not nyrlicd    for and tekon by the sherlfr
      of the proper county bcforc    the end oi’ t?n days from tho
      dqy ot his coxmitmcnt.”

                 !,rticle    459. Time preceding  article shall not ‘IP-
      ply   Ii   t!ic   defsdnnt  has been placed ir jail out CC *Jl?
      county     f-r    the wnnt of B ssfe jail  in the proper GountY.”

             Your sttcnti:n   is directed  to Ch3pt*:r 48 Title  5, Ver-
non’s &not jtcd Code of Crimin31 Frocedurir,     r’ert?ining  tz bei1
and rccoCnizance.     :re do not deer. it necrHeary to quote the
articles  c.oht?.ined in this chnptcr.
             In vie:4 of the fore@@          statutory 9 ~rovlslons,
                                                          provisions,      you
                                                                           you
arc respectiully     advised thst    We   Sheriri’s
                                                  ‘
                                                  r-6   depa?tment
                                                        depa-tment     hsa
                                                                       hsa  no
authority to hold a person 0       ,&Eed   xlth
                                            ‘
                                            .LUI  a  felony   or   G riede-
aecinor 13 jnil for 7ny le* &h of thete for the purLlose or :nsking
                               &her reasons
                                      easons whowhstsoevcr
                                                    tsoevcr xithout
                                                              .:i thou t Giving
                                                                          Civlng
m isvestigstion       Or ‘??jtY to .m3%C
                                      a%~  bsil as
                                           bsil   as provided
                                                      provided by  by the
                                                                       the
the accused an oFnor*” -
foregoing   statutes.
