July 29, 1987

Bonorable ~JoeWarner Bell Trinity County Attorney P. 0. Box979 Groveton. Texas 75845 Opinion No. ~~-760 R&T: 'Whether apeace officer may, without further authorization, release onpersonal bond adefendant charged with amisdemeanor DearMr. Bell: You ask whether apeace officer may, without further authorization, release onpersonal bond adefendant charged with amisdemeanor. Weassume that your question does not refer to misdemeanor traffic offenses. In those cases, an arresting officer may release an individual by obtaining his written promise to appear in court. V.T.C.S. art. 6701d. $148. In reviewing your question, wefirst look to those statutes in chapter 17of the Code of Criminal Procedure which address the matter of the release of adefendant uponpersonal bond. ~- Art. 17.03 The court before whomthe case is pending may, in its discretion, release the defendant on his personal bondwithout sureties or other security. Art. 17.031 (a) A magistrate may. upon the setting of a bond. release the defendant onhis personal bond, in which case the bond maybe transferred to any court wherein the case maylater be heard, and subsequent courts maynot revoke the personal bond except for good cause shown. (b) Anymagistrate in this state mayrelease a defendant onhis personal bondwhere the complaint and warrant for arrest does not originate in the county wherein the accused is arrested if the magistrate would have had jurisdiction over the matter had the complaint arisen within the county

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wherein the magistrate presides. The personal bond maynot be revoked by thejudge of the court issuing the warrant for arrest except for good cause shown. (c) If there is apersonal bond office in the county from which the warrant for arrest was issued, the court releasing a defendant on his personal bond will forward acopy of the personal bond to the personal bond office in that county. Art. 17.04. Apersonal bond is sufficient if it Includes the requisites of a bail bond as set out in Article 17.08, except that no sureties are required. In addition, a personal bond shall contain the defendant’s name, address andplace of employment, and the following oath sworn and signed bythe defendant:

‘I swear that I will appear before (the court or magistrate) at (address, city, county) Texas, onthe (date), at the,hour of (time, a.m. or p.m.) or upon notice by the court, or pay to the court the principal sumof (amount) plus all necessary andreasonable expenses incurred in anyarrest for failure to appear.’ (Emphasis added). Thematter of the release of adefendant uponbond being taken by apeace officer is addressed in chapter 17, as follows:

Art. 17.05. Abail bond is entered into either before a magistrate, upon an examination of a criminal accusation. or before ajudge upon anapplication under habeas corpus; or it is taken from the defendant by a peace officer if authorized by Article 17.20, 17.21, or 17.22. Art. 17.20. The sheriff, or other peace officer, in cases of misdemeanor, may, whether during the term of the court or invacation. where hehas adefendant in custody, take of the defendant abail bond.

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Art. 17.21. In cases of felony, when the accused is in custody of the sheriff or other peace officer, and the court before which the prosecution is pending is in session in the county where the accused is in custody, the court shall fix the amount of bail, if it is abailable case and determine if the accused is eligible for a personal bond; and the sheriff, or other peace officer, unless itbe the police of acity, is authorized to take abail bond of the accused in the amount as fixed by the COUTt. 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. Art. 17.22. In afelony case, if 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, 5 take his bail bond in such amount asmayhave been fixed by the court or magistrate, or if no amount has been fixed, then in such amount 8s such officer may consider reasonable. (Emphasis added). TheInterpretative Commentary following article 17.01 includes a statement relative to apersonal bond, as follows:

Under the newCode a person who is charged with anoffense way, if the court deems it wise, be released onhis ownbondwithout the necessity of sureties. TheCommittee further determined that too often an appellant was denied his right to appellate review because of the ineptness of his lawyer who had his client released pending appeal under a bond rather than arecognizance or vice versa, so all recognizances were eliminated from the new Codeandnowonewhohas been convicted waysecure his release pending appeal only byentering into a bondwhich wasset bythe committing magistrate or changed by the trial court. Only one bond is required unless the trial judge raises the amount

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of bail required or lowers it as the Code permits himtodo. (Emphasis added). ASpecial Commentary following article 17.04 states

An innovation in the new Code permits the court, in its discretion to release adefendant on his personal bond without sureties or other security. Therequisites for such bond set forth in Art. 17.04 (among other things), call for the bond to reflect the defendant's name. address and place of employment as well as his oath that he will appear as ordered or pay amount of bond plus expenses of arrest. There are those defendants with ties to the community such as afamily, ajob, etc., but who donot have sufficient funds for abail bondsman, corporate surety, nor friends with sufficient property to qualify as sureties under Art. 17.13. Theamendmentwasdesigned to allow such defendant tobe released onapersonal bond andto return to his family and his job pending trial. (Emphasis added). InExParte Trillo, 540S.W.Zd 728. 732 (Ct. Grim. App. 1976) the matter of the trial court's refusal of apersonal bond to adefendant wasbefore the court. Thecourt stated:

The granting of a personal bond is a matter within the discretion of the court before whomthe case is pending. Art. 17.03, V.A.C.C.P. See also Art. 17.031, V.A.C.C.P.; Art. 2372p-1, Sec. 3, Vernon's Ann. Civ. St+ Art. 2372p-2. Sec. 1, Vernon's Ann. Civ. St. It follows that there will be somesituations where apersons1 bondwill not be appropriately within the discretion of a trial court, and a personal bond should not be granted. We therefore decline to hold that a personal bond must be granted in all cases such as the one at bar, since todo so would violate

1. Article 2371p-1, section 3, and article 2372p-2, section 1, V.T.C.S., relate to the gathering, reviewing and providing a court with information to enable a court to make a determination as to whether anaccused should be released onpersonal bond.

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the clear language of Art. 17.03. supra, that this decision is a discretionary one. (Emphasis added). A peace officer way release a defendant upon bail bond under conditions specified in articles 17.20. 17.21, or 17.22. Thejudge of the court before whomthe case is pending or amagistrate are the only officials authorized to release adefendant on personal bond. Arts. 17.03, 17.031. SUMMARY

Apeace officer waynot, without authorization from a court or magistrate (except in traffic cases, an arresting officer may release an individual by obtaining his written promise to appear in court, V.T.C.S. art. 6701d, 1148). release onpersonal bond adefendant charged with amisdemeanor.

JIM MATTOX Attorney General of Texas MARYKELLER Executive Assistant Attorney General JUDGEZOLLIESTBAKLPX Special Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared byTomG.Davis Assistant Attorney General

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