OPP,CE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

March 23, 1999

The Honorable Michael P. Fleming Harris County Attorney 1019 Congress, 15th Floor Houston, Texas 77002-1700 Opinion No. JC-0024

Re: Procedure forreceiving and refunding acash bail bond posted pursuant to article 17.02 of the Code of Criminal Procedure (RQ-1190)

Dear Mr. Fleming:

Your questions require us to determine the proper procedures for receiving and refunding a cash bail bond posted pursuant to article 17.02 of the Code of Criminal Procedure. Bail is “the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes abail bond or apersonal bond.” TEX.CODE GRIM.PROC.ANN. art. 17.01 (Vernon 1977). Article 17.02 defines abail bond and allows a defendant in custody to deposit cash with the court in lieu ofhaving sureties sign abond in order to obtain the defendant’s release and secure his appearance in court. The statute provides:

A “bail bond” is awritten undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation; provided, however, that the defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount ofthe bond in lieu ofhaving sureties signing the same. 

### Id. art. 17.02. Thus abail bond may be either acash bond or a surety bond. The surety for a surety bond is often, but not always, aprofessional bail bondsman. An Interpretive Commentary to the Code of Criminal Procedure explains:

Members ofthe [Code Revision] Committee were disturbed by cases where people of means who were capable of posting a cash bond, but who were away from home when arrested and were required under the existing statutes to pay aprofessional bondsman an exorbitant fee in order to make bail.


### Id. art. 17.01 interp. commentary. With respect to receipt and refund of a cash bail bond, article 17.02 provides:

Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded tothe defendant ifand whenThe Honorable Michael P. Fleming - Page 2 (JC-0024)

the defendant complies with the conditions ofhis bond, and upon order ofthe court.


### Id. art.17.02,

Your questions regard a common procedure in which a cash bail bond is paid not by the defendant, but by a third party. You tell us that in Harris County when a cash bond is paid by
someone other than the defendant the receipt is issued in the name of the person who made the deposit, and when arefund is ordered the cash isreturned to the same person. We consider whether this procedure is consistent with the requirements of article 17.02.

Your first question is whether aparty other than the defendant may deposit cash in lieu of having sureties sign abail bond in order to obtain the release ofthe defendant. We conclude that a third party may do so. Although article 17.02 states that “the 

### defendant

. may deposit with the custodian of funds of the court” cash 

### in lieu of a surety bond, we think that article 17.02 contemplates that aperson other than the defendant might present the cash to the court and deposit it to secure the defendant’s release. While a statute ordinarily should be construed in accordance with its plain language, it should not be construed in a way that leads to an absurd result or one infeasible ofexecution. 

### SeeBarshop v.Medina County UndergroundWaterConservationDist., 925 S.W.2d 618, 629 (Tex. 1996) (“Courts should not read a statute to create an absurd result.“) (citation omitted); TEX.GOV’T CODE ANN. 5 311.02 1 (Vernon 1998) (“In enacting a statute, it is presumed that ajust and reasonable result is intended; [and] aresult feasible of execution is intended .“). A defendant in custody isunlikely to have sufficient cash inhis possession to pay the bail, and such a defendant obviously isnot in aposition to retrieve the cash elsewhere himself. We do not think that the legislature intended to preclude adefendant from posting acash bail bond under suchcircumstances. 

### SeeExparteDeaton, 582 S.W.2d 151,153 (Tex. Crim. App. [Panel Op.] 1979) (“The language of the statute as well as the commentary regarding same makes it clear that the Legislature intended that adefendant be given the option orprivilege under Article 17.02, supra, of posting cash in lieu ofhaving sureties sign the bond.“). We conclude, therefore, that aperson other than the defendant may deposit cash to obtain the release ofthe defendant on acash bail bond except that, as we shall explain, the deposit is viewed to have been made by the defendant. Again, article 17.02 states that 

### “thedefendant. may deposit” cash inlieu of asurety bond. Article 17.02 further provides that acash bail bond deposit “shall be refunded 

### tothedefendant” if the conditions ofthe bond are met. From the view ofthe court and the court officer receiving acash bail bond deposit, the cash belongs tothe defendant even ifthe cash was deposited by athird person. Article 17.02 is not concerned with the source of the cash, but only its role as the security for the defendant’s subsequent appearance in court. Whatever arrangement the defendant makes with the third party who presents the cash to the court-whether the money belongs to the defendant or is a gift or loan from someone else-is amatter between those persons. Unless the third party signs the bond as a surety, the cash deposit is a cash bail bond and is considered to belong to the defendant.

Your second question asks in whose name a receipt should issue if a cash bail bond is deposited by someone other than the defendant. You point out inthe memorandum attached toyourThe Honorable Michael P. Fleming - Page 3 (JC-0024)

letter that article 103.010 of the Code ofCriminal Procedure requires acounty officer who collects “fines or fees in a criminal case” to issue a receipt showing “the name of the person paying the money,” and you suggest that this requirement conflicts with article 17.02. See Memoradum from Honorable Michael P. Fleming, Harris County Attorney, toHonorable Dan Morales, Attorney General 3 (Aug. 31, 1998) (on file with Opinion Committee). We doubt that a cash bail bond deposit isa“fine or fee” within the meaning ofarticle 103.010, but we need not decide that question. Even if a cash bail bond deposit is a“tine or fee,” for the reasons stated above the “person paying the money” in such acase isthe defendant, even ifathird party presents the cash to the court officer. Because acash bail bond isviewed by the court asbelonging to the defendant, the receipt for acash bail bond deposit should issue in the name of the defendant.

Your third question asks to whom acash bail bond retind should be paid ifthe cash deposit
was presented to the court by aperson other than the defendant. Again, because acash bail bond is considered by the court to have been deposited by the defendant, acash bail bond refund should be paid tothe defendant upon compliance with the terms ofthe bond and order ofthe court. In addition,
we know ofno statutory requirement that the third party be given notice that any re&md will be paid to the defendant. We do not consider whether there is astatutory prohibition on notifying the third party who paid the cash bail bond on the defendant’s behalf that the cash will be returned to the defendant Finally, you ask whether acash bail bond refund must be withheld until any fines assessed against the defendant arepaid. You ask this question inlight ofsections 154.025 and 154.045 ofthe Local Government Code, both of which prohibit a county from drawing awarrant “in favor of a person, or an agent or assignee of aperson, until the person owing the 

### debt [to the state, the county, or a salary t?md] is notified that the debt is outstanding and the 

### debt is paid.” TEX.LOC.GOV’T CODE ANN. 5 154.025 (Vernon Supp. 1999) (applying tocounty with population of 190,000 orless) (emphasis added); 

### id. 5 154.045 (applying to county with population of more than 190,000).
A tine imposed in acriminal case generally is not considered to be a“debt” because adebt isgenerally defined asanobligation arising from acontractual agreement. Our courts have held that
acriminal tine is not a“debt” for purposes of article I, section 18of the Texas Constitution, which prohibits imprisonment for debt. 

### See Thompson v.State, 557 S.W.2d 521, 525 (Tex. Crim. App. 1977); see 

### also TEX.CONST.art I, 5 18interp. commentary (Vernon 1997) (“In general, the liability to pay money growing out of contract constitutes a debt within the meaning of the constitutional guaranty.“). Even when adebt exists, awarrant may not be withheld under the authority ofa warrant withholding statute ifacontrary statutecompels issuance ofawarrant under the circumstances. See Tex. Att’y Gen. Op. Nos. JM-255 (1984) at4; O-4655 (1942) at 5. Accordingly, even if acriminal tine were a“debt,” we conclude that sections 154.025 and 154.045 may not be invoked to withhold
acash bail bond refund ordered pursuant to article 17.02 of the Code of Criminal Procedure.
Article 17.02 prohibits acourt from withholding acash bail bond refund from a defendant who owes tines to the court ifthe defendant has otherwise complied with the conditions ofthe bond and is due arefund. By statute abail bond “shall be valid and binding upon the defendant and his sureties, if any, thereon, for the defendant’s personal appearance before the court or magistrateThe Honorable Michael P. Fleming - Page 4 (X-0024)

designated therein, aswell asbefore any other court to which same may be transferred, and for any and all subsequent proceedings had relative tothe charge.” TEX.CODE GRIM.PROC.ANN.art. 17.09 (Vernon 1977). Our Court of Criminal Appeals has said that under this statute “[t]he prime object
or purpose ofbail is to secure the presence of an accused upon trial of an accusation against him. Itis not arevenue measure intended tobe asubstitution for afine, but is intended to secure the trial ofthe alleged offender rather than turn his securities orthose ofhis bondsman into apenalty.” See 

### McConathy v. State, 528 S.W.2d 594, 596 (Tex. Crim. App. 1975) (citation omitted); 

### accord, Trammel Y.State, 529 S.W.2d 528, 529-30 (Tex. Crim. App. 1975); 

### DeLeon v.Pennington, 759 S.W.2d 201,202 (Tex. App.- San Antonio 1988, orig. proceeding). Article 17.02 provides that cash bail bond funds 

### “‘shallberefunded tothedefendant ifand when thedefendant complies with theconditions ofhisbond, anduponorder of

### thecourt.” TEX.CODE GRIM.PROC.ANN. art. 17.02 (Vernon 1977). Accordingly, the court held in

### McConathy that abond could not be forfeited for violation of aprobationary condition to pay a fine when the defendants had appeared in court as required by their bonds and where no “subsequent proceedings had relative tothe charge” remained inthe case. 

### McConathy, 528 S.W.2d at 598. When the defendant has complied with the conditions of his bond and is due a cash refund, a court officer may not withhold the refund until the defendant’s tines are paid.The Honorable Michael P. Fleming - Page 5 (X-0024)



### SUMMARY

A person other than the defendant may make a cash bail bond deposit with the court officer to secure the defendant’s release from custody pursuant to article 17.02 of the Code of Criminal Procedure. The receipt for a cash deposit should be issued in the name of the defendant. While the court officer isnot required to notify the third party depositor that the funds will be returned to the defendant, no statutory prohibition precludes such notification. Ifthe defendant complies with the conditions of the bond, and upon court order, the bond funds must be returned to the defendant. The court officer may not withhold a cash bail bond refimd until fines assessed against the defendant are paid.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK KENT ERVIN Deputy Attorney General - General Counsel

ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Barbara Griffin Assistant Attorney General