The Honorable James W. Smith, Jr.   Opinion No. H-856
Frio County Attorney
P. 0. Drawer V                      Re: Authority of peace
Pearsall, Texas 78061               officer to set bail in
                                    misdemeanor cases.
Dear &.   Smith:
     You ask whether article 17.20 of the Cbde of Criminal
Procedure, which authorizes the sheriff or other peace
officer to take a bail bond in misdemeanor cases, alao.
authorizes such officer to set the amount of the bond.
        Before specifically addressing your question, it should
be noted that the peace officer's authority to set the amount
of bail will be significant only in limited circumstances
because of several other statutory provisions. Articles
14.06 and 15.17 of the Code require    the arresting officer
to take the person arreated before a magistrate "without
unnecessary delay." Article 67016, section 147, V.T.C.S.,
contains a similar requirement under specific circumstances
following an arrest for a misdemeanor traffic law violation.
Further, article 15.17 provides that the magistrate "shall
admit the person arrested to bail if allowed by law." Under
normal circumstances, then, the magistrate will aet the
amount of bail, rather than the sheriff or other officer
having the person in cuetody. The officer's authority to
set the amount of bail would seem to be necessary chiefly
in situations in which no magistrate ia available, or, in
arreets pursuant to a warrant, in which the proper magistrate,
specified in article 15.16, is unavailable. Generally, a
person arrested when the magistrates' offices    are closed
can be detained until a magistrate's normal working hour6
without    violating the statutory requirement of an appearance
"immediately" or "without unreasonable delay." -   See a,




                         p. 3610
The Honorable James W. Smith, Jr. - page 2 (H-856)


Gilbert v. Stat=, 284 S.W.2d 906, 908 (Tex. Crim. App. 1955)
                p.m., bond arranged next morning); Grissam
v. State, 403 S.W.2d 414, 416 (Tex. Crim. App. 19661-t
z Saturday afternoon, appearance before masistrate on Mondav
morning): Attorney Generai Opinion C-558 (1965). Under auch-
circumstances, with no magistrate available, the permissive
power of the officer having the accused in custody to set
and take a bail bond would come into play.
     Article 17.20, on which your question is based, reads
as follows:
            The sheriff, or other peace officer,
         in cases of misdemeanor, may, whether
         during the term of the court or during
         vacation, where he has a defendant in
         custody, take of the defendant a bail
         bond.
Other sections of the Code differentiate "fixing" and "taking"
a bond -- for example, article 17.22, dealing with certain
felony cases in which a peace officer is allowed to take a
bond in such an amount as he considers reasonable, if no
amount has been fixed by the court or magistrate. Thus
article 17.20, read by itself, would seem not to authorize
the officer to set the amount of the bond, but rather to
simply allow him to take a bond in an amount already set by
some other person. The anomalous result would be that a
peace officer could set the amount of the bond in certain
felony cases, but not in any misdemeanor cases.
     Article 17.20, however, must be read in conjunction
with other sections of the Code of Criminal Procedure.
Article 17.15, prescribing rules for fixing the amount of bail,
provides that, "The amount of bail to be required in any case
is to be regulated by the court, judge, magistrate or officer
taking the bail . . . ." Article 3.03 defines the general
term "officers" as including peace officers. Thus, since
article 17.20 authorizes the sheriff or other peace officer
to take bail in misdemeanor cases, article 17.15 compels the
con=ion    that such officer is also to regulate the amount
of bail in such cases.




                            p. 3611
The Honorable James W. Smith, Jr. - page 3 (H-856)


     There is some support in case law for this conclusion.
In Branch v. Guinn, 242 S.W. 482 (Tex. Civ. App. -- Galveston
192mwi!it),ich         was decided under article 336 of the
1911 Code of Criminal Procedure, a predecessor of article
17.20, the court stated that "in all misdemeanor cases, the
officer making the arrest may take bail in such amount as he
may consider reasonable." Id. at 484. The old article
336 was enacted verbatim asarticle 286 of the 1925 Code of
Criminal Procedure, and, in 1965, as article 17.20 of the
current Code. The 1971 amendment of article 17.20 simply
broadened the authority to take bail so that it covers all
misdemeanor cases. The previous wording of article 17.20
had been construed, in Attorney General Opinion WW-136
 (19571, as giving the officer no authority to take bail in
cases involving warrantless arrests, but that opinion has
been superseded by the 1971 amendment to the statute.
     Your second question concerns whether a peace officer
may take a bond from the arrested person when the arresting
officer has refused to fix bail because of the person's
drunken condition. Article 17.20 grants authority to take
bail to the officer having custody of the miademeanant. The
arresting officer's authority to take (or deny) bail from
the arrested person ends when he relinquishes custody, as by
committing the arrested person to jail. From that point
forward, the authority to take bail rests in the officer to
whom custody has been given -- for example, the sheriff, if
the arrested person is in the county jail. The arresting
officer's denial of bail will not bind other officers once
the arresting officer has relinquished custody. Of course,
the officer having the arrested person in custody is subject
to the requirement of articles 14.06 and 15.17 that he take
the arrested person before a magistrate when one becomes
available, if bail has not previously been granted.
     In your third question, you ask whether the sheriff or
another peace officer, having received custody of the accused
from the arresting officer, has the authority to simply release
the accused without requiring a bail bond or taking him before
a magistrate. Finding no statutory authority for such an
action, we believe the answer is no. So long as the arresting
officer wishes to commit the prisoner to jail and charge him
with a misdemeanor, the sheriff or other officer receiving
custody cannot release the accused unless no magistrate is
available, and then only after taking a bail bond in the
manner and form prescribed by Chapter 17 of the Code.



                          p. 3612
The Honorable James W. Smith, Jr. - page 4   (H-856)


     To answer your fourth question, we believe that a peace
officer does not have the authority to set up a schedule of
bond amounts and then have the bonds fixed and taken by
clerks or dispatchers who are not peace officers. Authority
to take, and thus regulate the amount of, bail bonds, must
arise from an express statutory grant; article 17.20 gives
such authority only to the "sheriff, or other peace officer."
Article 2.12 contains a specific enumeration of the persons
considered to be "peace officers" as that term is used in
the Code: clerks and dispatchers are not included. In the
absence of any express statutory provision, we believe that
peace officers having custody of arrested persons cannot
delegate their authority to take bail bonds to persons who
are not peace officers. Additionally, we note that the
amount of bond must be determined by the Constitution and
rules set out in article 17.15, rather than by any arbitrary
"schedule of bond amounts."
     In answer to your fifth question, a bail bond fixed and
taken by a peace officer having custody of the arrested
person, under circumstances which comport with our inter-
pretation of the appropriate Code provisions set out above,
would be a bond collectible by forfeiture. Since a clerk or
dispatcher may not legally take a bond, any bond taken by a
clerk or dispatcher or any other person not authorized to
take a bail bond would not be a bond collectible by for-
feiture.
                     SUMMARY
          While a peace officer's authority to
          set the amount of bail will be exer-
          cised only in rare and limited circum-
          stances, articles 17.20 and 17.15
          authorize the sheriff or other peace
          officer having custody of the accused
          in misdemeanor cases to set the amount
          of bail and then take bail from the
          accused. The authority to fix bail in




                          p. 3613
The Honorable James W. Smith, Jr. - page 5 (I-1-856)


            such cases lies with the officer having
            custody of the accused, but no officer,
            other than the arresting officer, may
            summarily release the accused without
            complying with the requirements for
            bail bonds. Bonds set by peace officers
            in accordance with the above requirements
            are collectible by forfeiture, but bonds
            may not be set by dispatchers or clerks
            who are not peace officers.
                               Very truly yours,



                               Attorney General of Texas
APPROVED:




Opinion Committee

jwb




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