### THE ATTORNEY GENERAL OF TEXAS

September 7, 1990

Honorable John Vance District Attorney Administration Building 411Elm Street Dallas, Texas 75202 Opinion No. JM-1217
Re: Acceptance ofbail bonds by peace officers under articles 17.01 and 17.02 of the Texas Code of Criminal Procedure (RQ-2016)
DearMr.Vance:
You askwhether bail bonds may be accepted by peace officers at locations other than the county jail under the provisions of articles 17.01 and 17.02 of the Code of Criminal Procedure. Article 17.01defines "bail@8as "the security given by the accused that hewill appear and answer before the proper court the accusation brought against him, and includes a bail bond or personal bond." Article 17.02 defines "bail bond" as follows:

A 'bail bond' isa written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court ormagistrate to answer a criminal accusation: provided, however, that the defendant upon execution of such bail bondmay deposit with the custodian of funds of the court inwhich the prosecution ispending current money of the United States inthe amount of thebond in lieu of having sureties signing the same. Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the defendant ifandwhen the defendant complies with the conditions ofhisbond, and upon order of the court. Article 17.05 of the Code of Criminal Procedure provides:

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Abail bond isentered into either before a magistrate, upon an examination of a criminal accusation, or before a judge upon an application under habeas corpus; pr it ti from the defendant bv aneace officer Af authorized bv Article 17.20. 17.21 or l.222. (Emphasis added.) Article 17.20 of the Code of Criminal Procedure provides that a sheriff, "orother peace officer" in case of misdemeanor, may, whether during the term of court or in vacation, take bail bond fromadefendant he has in custody. Article 17.22 of the Code of Criminal Procedure permits the sheriff "or other peace officer" having a defendant in custody ina felony case to take his bail bond if the court before which the same ispending and is not in session in such amount asmay have been fixed by the court inwhich the case ispending (or by amagistrate), or ifno amount has been fixed, then in such amount as such officer may consider reasonable. Under article 17.21 of the Code of Criminal Procedure where the defendant is incustody of the sheriff or other peace officer, and the court is in session in the county where the accused is incustody, the court shall fix the amount of bail. The sheriff, or other peace officer Wnless itbe the police of a city" isauthorized to take thebail bond of the accused in the amount fixed by the court. Police officers ofan incorporated city, town, or village are included inthe persons and officials in the definition ofpeace officers under article 2.12 of the Code of Criminal Procedure.
you state that the county auditor has voiced concern that the method devised by the sheriff's department for posting ofbonds inthemunicipal police departments in the county may be in violation ofarticle III, section 52, of the Texas Constitution, in that itconstitutes the lending of credit of the county by the sheriff's department.
you advise that the circumstances that cause the auditorts concern arisewhen amunicipal police officer has aperson in custody charged with anon-municipal offense. Bymeans of computer the sheriff's office isadvised of this fact and the necessary bond and release forms are sent the police department by the samemedium. Themunicipal agency obtains the necessary signatures on the bond, a police officer approves the bond, and the suspect is released. The bond money or the surety bond isdelivered to the sheriff's office the next day.

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you relate that the foregoing plan is designed to replace a system that resulted inholding aprisoner in a municipal facility until such time as the person posting the bondmade a trip to the county jail topay thebond directly to the sheriff's department. In the event of a surety bond, two or more trips between the county jail and municipal facility were required to obtain the bond form, get the necessary signatures, return same to the sheriff's department andwait until the sheriff's department notified the municipality to release the accused. Article III, section 52, of the Texas Constitution prohibits the legislature fromauthorizing "any county , . . to lend itsc;;iizfor z; ,~a; public money or [any] thing ofvalue in t Individual, association or corporation whatsoever." &.g Attorney General Opinion JW-522 (1986). The court of criminal appeals in WcConathv State 528 S.W.2d 594 (Tex. Crim. App. - 1975), revI;?wed th; purpose ofabail bond. The court stated:

The prime object orpurpose ofbail is to secure the presence ofan accused upon trial of an accusation against him. It isnot revenue measure intended tobe a substitutioi fora fine,but is intended to secure the trial of the alleged offender rather than turn his securities or those ofhis bondsman into apenalty. (Emphasisadded.)
There isnot only statutory authority for the police officer to take and approve abail bond under certain circumstances, there isno transaction between the county and the defendant whereby the county would be extending credit to the defendant. See aenez&& Attorney General Opinion JM-749 (1987). Inthose circumstances enumerated in articles 17.20 and 17.22where amunicipal police officer isauthorized to take thebail bond of the person hehas incustody, we perceive no reasonwhy bail bonds may notbe taken atplaces other than at the county jail. The utilization of computers in themethod you have suggested would appear to avoid delay in thebail bond process and afford a more timely method for the sheriff's office to keep informed of non-municipal violations charged by city police within the county. in the municipalities We perceive noviolation of article III, section 52, of the Texas Constitution when bail bonds are accepted by peace officers at places other than the county

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jailunder the provisions of articles 17.20, 17.21, and 17.22 of the Code of Criminal Procedure.1
SUMMARY The acceptance of bail bonds by peace officers fornon-municipal offenses at locations other than the county jail pursuant to the provisions ofarticles 17.20, 17.21, and 17.22 of the Code of Criminal Procedure is notviolative of article III, section 52, of the Texas Constitution.



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MATTOX Attorney General of Texas

1. Attorney General Opinion JM-760 (1987) addressed thematter of the release ofadefendant on apersonal bond under article 17.03 of the Code of Criminal Procedure. Attorney General Opinion JM-760 concluded:
Apeace officer may not,without authorization from acourt ormagistrate (except in traffic cases, an arresting officer may release an individual by obtaining hiswritten promise to appear incourt, art. 6701d, 9 148 V.T.C.S.), release onpersonal bond a defendant charged with amisdemeanor.

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.-. Honorable John Vance -Page 5 (JM-1217)

MARYKELLER FirstAssistant Attorney General

mu MCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY Special Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by TomG. Davis Assistant Attorney General

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