ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

March 27,2003 

The Honorable Ken Arrnbrister Opinion No. GA-0048 

Chair, Senate Committee on Natural Resources 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 78711 

Re: Authority of a judge or magistrate to 

attach a financial condition to a personal bond 

or to permit a cash deposit of less than the full 

bail amount (RQ-06 18-JC) 

Dear Senator Arrnbrister: 

You ask whether a judge or magistrate may permit or require a defendant to deposit cash with 

the court in less than the full amount of bail set by the court, or to attach a financial condition to a 

personal bond. 

Your question is prompted by what you characterize as the apparent “practice in some 

counties for judges to approve the release of criminal defendants upon the deposit with the county 

of 10% of the face amount of the bond.“’ The manner in which this is generally done “is to authorize 

the defendant’s release on a personal bond with an additional condition that the defendant make this 

financial deposit.” Request Letter, supra note 1, at 1. You characterize this practice as “some hybrid 

form of personal bond and cash bond.” Id. 

“Bail” is defined by article 17.01 of the Code of Criminal Procedure as “the security given 

by the accused that he will appear and answer before the proper court the accusation brought against 

him, and includes a bail bond or a personal bond.” TEX. CODE CRIM. PROC. ANN. art. 17.01 (Vernon 

1977). “Bail bond” is defined by article 17.02 as “a written 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.” Id. art. 17.02. Article 17.03 provides in pertinent part that “a 

magistrate may, in the magistrate’s discretion, release the defendant on his personal bond without 

sureties or other security.” Id. art. 17.03 (Vernon Supp. 2003) (emphasis added). 

Article 17.02 also provides that in lieu of sureties a defendant “may deposit with the 

custodian of funds of the court in which the prosecution is pending current money of the United 

‘Letter from Honorable Ken Armbrister, Chair, Senate Committee on Natural Resources, to Honorable John 

Comyn, Texas Attorney General at 1 (Sept. 27,2002) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Ken Armbrister - Page 2 (GA-0048) 

States in the amount of the bond.” Id. art. 17.02 (Vernon 1977). As you point out, this language 

does not authorize a deposit of anything less than the face amount of the bond. Request Letter, supra 

note 1, at 1. Nor does the language of article 17.03 permit the attachment of a financial condition 

to a personal bond, which specifically excludes “sureties or other security.” TEX. CODE CRIM. PROC. 

ANN. art. 17.03 (Vernon Supp. 2003). Given the language of articles 17.02 and 17.03, therefore, you 

suggest that there is no statutory authority for the kind of “hybrid . . . bond” you describe. Request 

Letter, supra note 1, at l-2. 

Two prior opinions of this office address similar practices and find them unwarranted. 

Attorney General Opinion JM-363 (1985) rejected the suggestion that a court might “set the amount 

of bail but agree to accept a cash percentage in lieu of that amount” on the ground that such a 

practice was not “authorized by [article] 17.02” of the Code of Criminal Procedure. Tex. Att’y Gen. 

Op. No. JM-363 (1985) at 2. Attorney General Opinion JC-0215 (2000) considered a similar 

practice, requiring what was referred to as a “split bond” - a bond designated in part as a personal 

bond and in part as a surety bond. That opinion concluded that “a magistrate may not order a 

bailable defendant to satisfy a split bond. A personal bond is, by definition, incompatible with a bail 

bond.” Tex. Att’y Gen. Op. No. JC-02 15 (2000) at 3. 

It has been suggested, in a brief presented to this office, that authority for a bond of this sort 

may be found in the discretionary power over bail provided by article 17.15 of the Code, which 

states, “The amount of bail to be required in any case is to be regulated by the court, judge, 

magistrate, or officer taking the bail; . . .” TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon Supp. 

2003). The brief argues that the court can regulate the amount of bail “by setting one amount for a 

cash bond and another amount for a surety bond. There is no statutory prohibition anywhere in CCP 

Chapter 17 to prevent the court from setting one bond amount to be posted in cash and another 

amount to be posted by surety bond.“2 The brief also suggests that Attorney General Opinion JM363 (1985) was wrongly decided. This argument, however, is answered by Professional Bondsmen 

of Texas v. Carey, 762 S.W.2d 691 (Tex. App.-Amarillo 1988, no writ), which specifically affirms 

JM-363 (1985), and Exparte Tucker, 977 S.W.2d 713 (Tex. App.-Fort Worth 1998),pet. dism’d, 

3 S.W.3d 576 (Tex. Crim. App. 1999) (per curiam). 

In Professional Bondsmen, the Amarillo Court of Appeals considered whether article 17.15 

vested a magistrate with sufficient discretion to establish a policy setting lower amounts for cash 

bonds than for surety bonds. The court rejected this argument: 

The Texas Attorney General has determined that courts have no 

discretion to set differential bail bond amounts depending upon 

whether the accused posts a cash bond or a surety bond. Tex. Att’y 

Gen. Op. No. JM-363 (1985). We agree. 

*Brief from Honorable Ken Sparks, County Attorney, Colorado County, to Opinion Committee, Attorney 

General’s Office (Nov. 20,2002) (on file with Opinion Committee). 
The Honorable Ken Armbrister - Page 3 (GA-0048) 

Articles 17.01, 17.02, and 17.15 confer upon the court, judge, 

magistrate, or officer taking a bail bond broad discretion in setting the 

amount of bail, provided that that discretion is reasonably exercised. 

The authority granted under these statutes does not, however, vest the 

court with discretion to require a cash bond or surety bond to the 

exclusion of the other. Ex parte Rodriguez, 583 S. W.2d 792 (Tex. 

Crim. App. 1979); Exparte Deaton, 582 S.W.2d 151 (Tex. Crim. 

App. 1979). It follows that the court does not have the discretion to 

set a differential bail bond amount depending upon whether a cash 

bond or a surety bond is used. 

Prof’l Bondsmen of Tex., 762 S.W.2d at 693. 

In Exparte Tucker, the Fort Worth Court of Appeals considered the argument that article 

17.15 “is an implicit grant of authority to the trial court to set reasonable conditions on bond.” Ex 

parte Tucker, 977 S.W.2d at 716. The court rejected this contention: 

[W]e find that the Legislature’s express enumeration of the specific 

bond conditions included in Chapter 17 are an exclusive grant of 

authority to the trial court to condition a defendant’s pre-trial release. 

Accordingly, we hold that the trial court does not have inherent 

authority to impose conditions on a defendant’s pre-trial bond that are 

not authorized by statute and further, that article 17.15 does not 

implicitly authorize other conditions not expressly stated. 

Id. at 717. 

In light of the statutory language of articles 17.02 and 17.03 of the Code of Criminal 

Procedure, as well as the holdings in Professional Bondsmen and Exparte Tucker and of Attorney 

General Opinions JM-363 (1985) and JC-0215 (2000), we conclude that a court does not have the 

authority to attach a financial condition to a personal bond, or to permit or require a cash deposit of 

less than the full amount of the bail set. Article 17.15 of the Code of Criminal Procedure grants a 

court discretionary authority to set the amount of bail, but not to require that bail be secured in a 

particular manner, or to impose conditions not contemplated by chapter 17. 
The Honorable Ken Armbrister - Page 4 (GA-0048) 

SUMMARY 

A judge or magistrate may not attach a financial condition to 

a personal bond, or authorize the deposit of less than the full cash 

amount of bail. 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General - General Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

James E. Tourtelott 

Assistant Attorney General, Opinion Committee