### ATTORNEY GENERAL OFTEXAS 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 afinancial condition to apersonal bond ortopermit acash deposit ofless than the full bail amount (RQ-06 18-JC)
Dear Senator Arrnbrister: You ask whether ajudge ormagistrate may permit orrequire adefendant to deposit cash with the court in less than the full amount ofbail 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 forjudges to approve the release of criminal defendants upon the deposit with the county of 10% ofthe face amount ofthe bond.“’ The manner inwhich this is generally done “isto authorize the defendant’s release on apersonal 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 ofpersonal 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 abail bond or apersonal 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 ofthe principal therein before some court ormagistrate 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 adeposit ofanything less than the face amount ofthe bond. Request Letter, supra note 1, at 1. Nor does the language of article 17.03 permit the attachment of afinancial condition to apersonal bond, which specifically excludes “sureties orother security.” TEX.CODECRIM.PROC. ANN.art. 17.03 (Vernon Supp. 2003). Given the language ofarticles 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 acourt 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” ofthe Code ofCriminal 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” - abond designated in part as apersonal bond and in part as a surety bond. That opinion concluded that “a magistrate may not order a bailable defendant to satisfy asplit bond. Apersonal bond is,by definition, incompatible with abail bond.” Tex. Att’y Gen. Op. No. JC-02 15 (2000) at 3. Ithas been suggested, in abrief presented to this office, that authority for abond ofthis 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. CODECRIM.PROC.ANN. art. 17.15 (Vernon Supp. 2003). The brief argues that the court can regulate the amount ofbail “by setting one amount for a cash bond and another amount for asurety bond. There isno 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 ofTexas 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).
InProfessional Bondsmen, the Amarillo Court ofAppeals considered whether article 17.15 vested a magistrate with sufficient discretion to establish apolicy 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 abail bond broad discretion in setting the amount ofbail, provided that that discretion isreasonably 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. Exparte 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 ofTex., 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 ofthe specific bond conditions included in Chapter 17 are an exclusive grant of authority to the trial court to condition adefendant’s pre-trial release. Accordingly, we hold that the trial court does not have inherent authority to impose conditions on adefendant’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, aswell as the holdings inProfessional Bondsmen and Exparte Tucker and of Attorney General Opinions JM-363 (1985) and JC-0215 (2000), we conclude that acourt does not have the authority to attach afinancial condition to apersonal bond, or to permit orrequire acash deposit of less than the full amount ofthe bail set. Article 17.15 ofthe 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 Ajudge or magistrate may not attach afinancial condition to a personal bond, or authorize the deposit of less than the full cash amount ofbail.

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