July 29, 1987 

Bonorable ~Joe Warner Bell 

Trinity County Attorney 

P. 0. Box 979 

Groveton. Texas 75845 

Opinion No. ~~-760 

R&T: 'Whether a peace officer may, 

without further authorization, 

release on personal bond a defendant charged with a misdemeanor 

Dear Mr. Bell: 

You ask whether a peace officer may, without further authorization, release on personal bond a defendant charged with a misdemeanor. 

We assume 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, we first look to those statutes in 

chapter 17 of the Code of Criminal Procedure which address the matter 

of the release of a defendant upon personal bond. 

~- 

Art. 17.03 

The court before whom the case is pending may, 

in its discretion, release the defendant on his 

personal bond without sureties or other security. 

Art. 17.031 

(a) A magistrate may. upon the setting of a 

bond. release the defendant on his personal bond, 

in which case the bond may be transferred to any 

court wherein the case may later be heard, and 

subsequent courts may not revoke the personal bond 

except for good cause shown. 

(b) Any magistrate in this state may release a 

defendant on his personal bond where 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 

p. 3552 

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Honorable Joe Warner Bell - Page 2 (JM-760) 

wherein the magistrate presides. The personal 

bond may not be revoked by the judge of the court 

issuing the warrant for arrest except for good 

cause shown. 

(c) If there is a personal bond office in the 

county from which the warrant for arrest was 

issued, the court releasing a defendant on his 

personal bond will forward a copy of the personal 

bond to the personal bond office in that county. 

Art. 17.04. 

A personal 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 and place of 

employment, and the following oath sworn and 

signed by the defendant: 

‘I swear that I will appear before (the court 

or magistrate) at (address, city, county) Texas, 

on the (date), at the,hour of (time, a.m. or p.m.) 

or upon notice by the court, or pay to the court 

the principal sum of (amount) plus all necessary 

and reasonable expenses incurred in any arrest for 

failure to appear.’ (Emphasis added). 

The matter of the release of a defendant upon bond being taken by 

a peace officer is addressed in chapter 17, as follows: 

Art. 17.05. 

A bail bond is entered into either before a 

magistrate, upon an examination of a criminal 

accusation. or before a judge upon an application 

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 in vacation. where he has a defendant 

in custody, take of the defendant a bail bond. 

p. 3553 
Eonorable Joe Warner Bell - Page 3 (JM~760) 

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 a bailable case and determine if 

the accused is eligible for a personal bond; and 

the sheriff, or other peace officer, unless itbe 

the police of a city, is authorized to take a bail 

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 a felony 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 as may have 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). 

The Interpretative Commentary following article 17.01 includes a 

statement relative to a personal bond, as follows: 

Under the new Code a person who is charged with 

an offense way, if the court deems it wise, be 

released on his own bond without the necessity of 

sureties. 

The Committee 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 a recognizance or vice versa, so 

all recognizances were eliminated from the new 

Code and now one who has been convicted way secure 

his release pending appeal only by entering into a 

bond which was set by the committing magistrate or 

changed by the trial court. Only one bond is 

required unless the trial judge raises the amount 

p. 3554 
Honorable Joe Warner Bell - Page 4 (JM-760) 

of bail required or lowers it as the Code permits 

him to do. (Emphasis added). 

A Special Commentary following article 17.04 states 

An innovation in the new Code permits the 

court, in its discretion to release a defendant on 

his personal bond without sureties or other 

security. The requisites 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 a family, a job, etc., but who 

do not have sufficient funds for a bail bondsman, 

corporate surety, nor friends with sufficient 

property to qualify as sureties under Art. 17.13. 

The amendment was designed to allow such defendant 

to be released on a personal bond and to return to 

his family and his job pending trial. (Emphasis 

added). 

In Ex Parte Trillo, 540 S.W.Zd 728. 732 (Ct. Grim. App. 1976) the 

matter of the trial court's refusal of a personal bond to a defendant 

was before the court. The court stated: 

The granting of a personal bond is a matter 

within the discretion of the court before whom the 

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 some situations where a persons1 bond will 

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 to do 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 an accused should be released on personal bond. 

p. 3555 
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Eonorable Joe Warner Bell - Page 5 (JM-760) 

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. The judge of 

the court before whom the case is pending or a magistrate are the only 

officials authorized to release a defendant on personal bond. Arts. 

17.03, 17.031. 

SUMMARY 

A peace officer way not, 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 on personal bond a defendant charged with 

a misdemeanor. 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STBAKLPX 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3556