            THEAITO~EY                 GENERAL
                          OFTEXAS




Honorable Earle Caddel,             Opinton no..WW 136
County Attorney,
Uvalde County,                      Ren Authority of Sheriff to
Uvalde, Texas.                          set the amount of, and
                                        accept a bail bond when
                                        the accused is arrested
Dear Sir:                               without a warrant,
        We acknowledge receipt of your letter, requesting an
opinion on the question of whether or not a Sheriff may set
and accept a ball bond when the accused is arrested without
warrant.
       You have asked two questions as follows:
            "(1) Where an accused is lawfully
       arrested without a warrant, as for drunk
       driving, drunk in a public place, disturbing
       the peace, etc., in the presence of the
       arresting officer, and is placed in the
       county jail in custody of the sheriff to a-
       wait the next regular office hours of the
       nearest magistrate, is the sheriff author-
       ized to set the amount of and accept a bail
       bond from the accused?
             "(2) If the sherfff is so authorized
        under the law, should such bail bond be for
        the accused's appearance before the nearest
        magistrate, (naming him) at his next regular
        office hours (stating the time and place)?"
        It Is stated In the case of Turpln et al v. State,215
S.W. 455 (lqlq), 86 Tex. Cr. 96, that bail bonds are statu-
tory, and the terms of the statute must be strictly followed.
        Therefore, to answer your question, we must look to
the statutes upon this subject.
        Bail is defined in Article 267, Vernon's C.C.P. as
follows:
Honorable Earle Caddel,     page   2        W-136



          It 'Bail' Is the security given by the accused
      that he will appear and answer before thenproper
      court the accusation brought against him.
     Article 270 C.C .P. provides:
          "A bail bond is entered into either before a
      magistrate, upon an examination of a criminal
      accusation, or before a judge upon an applicatFon
      under habeas corpus; or it Is taken from the de-
      fendant by a peace officer who has a warrant of
      arrest or commitment."
      Artfcle 286 C.C.P. provides:
          "The Sheriff, or other peace officer, fn cases
      of misdemeanor, has authority, whether during the
      term of the court or fn vacation, where he has a
      defendant In custody under a warrant of commftment,
      warrant of arrest, or capias, or where the accused
      has been surrendered bx his ball, to take of the
      defendant a bail bond.
      Article 287 C.C.P. provides:
          "In cases of felony, when the accused is fn
      custody of the sherfff or other peace officer, and
      the court before whioh the prosecution is pending
      is fn session in the county where the accused is in
      custody, the court shall fix the amount of ball, if
      it 1s a bailable case; and the sheriff, OP other
      peace officer, unless it be the police of a city, fs
      authorized to take a ball 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.'
      Article 288 C.C.P. provides:
          "In a feldny case, ff the court before which the
      same 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 bafl 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.'
Honorable Earle Caddel,      Page   3       w-W-136


       The above stated statutes deal with the fixing and
acceptance of bail.
       ConcernLng arrests without a warrant the following
statutes are pertinent:
       Article 212 C.C.P. states:
           “A peace officer or any other person, may,
       without warrant, arrest an offender when the
       offense is committed In his presence or within
       his vfew, if the offense fs one classed as a
       felony, or as an ‘offense against the public peace;“’
       Article 213 C .C.P. provides :
           “A peace officer may arrest, without warrant,
       when a felony or breach of the peace has been
       committed In the presence or wlthfn the vfew of a
       magistrate, and such magfstrate verbally orders
       the arrest of the offender.”
       Article 215 C .C.P. provides:
           “Where it is shown by satisfactory proof to a
       peace officer, upon the presentation of a credfble
       person, that a felony has been committed, and that
       the offender Is about to escape, so that there is
       no time to procure a Warrant, such peace officer may,
       without warrant, pursue and arrest the accused.’
       These statutes are the ones permitting arrests with-
out warrant O  Then Article 217 C.C .P. provides what the
officer must do after makfng the arrest.    It states:
           ‘In each case enumerated in thfs chapter, the
       person making the arrest shall lmmedfately take
       the person arrested before the magistrate who may
       have ordered the arrest, or before the nearest
       magistrate where the arrest was made without an order-”
       The statutes clearly state when arrests may be made
without warrant and Article 217 C.C .P. provides the officer’s
duty on making the arrest without warrant.
       The statutes dealing with bail permitting the sheriff
to take bail contemplate an arrest by vfrtue of a warrant,
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Honorable Earle Caddel,     Page 4          ww-136


       Therefore, in answer to your first question, we hold
that the sheriff is not authorized to set the amount of and
accept a bail bond from the accused.   There Is no statutory
authority to permit such procedure.
       Article 2l7,C.C.P. was discussed in the recent case
of Gilbert v. State 284 S.W.2d 906 (1955). This opinion
deals with the sub ect of what is a reasonable time to
carry the accused before a magistrate.
       In view of our answer to your first question, ft
becomes unnecessary to answer question No. 2.
                          SUMMARY
                  There is no statutory authorization
             for a sheriff to set the amount of and
             accept  a ball bond from an accused
             arrested without warrant.
                                Yours very truly
                                WILL WILSON
                                Attorney General



                                BY
                                     J. L. Smith
JI3:pf:rh                            Assistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler
           Chairman
L. P. Lollar
Edwin P. Rorner
Grundy Williams
REVIEWEDFORTHEATTORNEYGENERAL
By:   Geo. P. Blackburn
