THE ATTORNEY GENERAL 

OF TEXAS 

September 7, 1990 

Honorable John Vance 

District Attorney 

Administration Building 

411 Elm Street 

Dallas, Texas 75202 

Opinion No. JM-1217 

Re: Acceptance of bail bonds by 

peace officers under articles 

17.01 and 17.02 of the Texas 

Code of Criminal Procedure 

(RQ-2016) 

Dear Mr. Vance: 

You ask whether 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 17.01 defines "bail@8 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 personal bond." Article 17.02 defines "bail 

bond" as follows: 

A 'bail bond' is 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: provided, 

however, that the defendant upon execution of 

such bail bond may deposit with the custodian 

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

States in the amount of the bond 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 

if and when the defendant complies with the 

conditions of his bond, and upon order of the 

court. 

Article 17.05 of the Code of Criminal Procedure 

provides: 

p. 6435 
Honorable John Vance - Page 2 (JM-1217) 

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; pr it ti 

from the defendant bv a neace 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, "or other peace officer" in case of 

misdemeanor, may, whether during the term of court or in 

vacation, take bail bond from a defendant 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 in a felony case to take his bail bond if the court 

before which the same is pending and is not in session in 

such amount as may have been fixed by the court in which the 

case is pending (or by a magistrate), or if no 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 in custody of the sheriff 

or other peace officer, and the court is in session in the 

county where the accused is in custody, the court shall fix 

the amount of bail. The sheriff, or other peace officer 

Wnless it be the police of a city" is authorized to take 

the bail bond of the accused in the amount fixed by the 

court. Police officers of an incorporated city, town, or 

village are included in the persons and officials in the 

definition of peace 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 of bonds in the municipal police departments in the 

county may be in violation of article III, section 52, of 

the Texas Constitution, in that it constitutes the lending 

of credit of the county by the sheriff's department. 

you advise that the circumstances that cause the 

auditorts concern arise when a municipal police officer has 

a person in custody charged with a non-municipal offense. 

By means of computer the sheriff's office is advised of this 

fact and the necessary bond and release forms are sent the 

police department by the same medium. The municipal 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 is delivered to the sheriff's 

office the next day. 

P- 6436 
Honorable John Vance - Page 3 (JM-1217) 

you relate that the foregoing plan is designed to 

replace a system that resulted in holding a prisoner in a 

municipal facility until such time as the person posting the 

bond made a trip to the county jail to pay the bond 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 and wait until the sheriff's department notified the 

municipality to release the accused. 

Article III, section 52, of the Texas Constitution 

prohibits the legislature from authorizing "any county , . . 

to lend its c;;iizfor z; ,~a; public money or [any] thing 

of value 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 of a bail bond. The court stated: 

The prime object or purpose of bail is to 

secure the presence of an accused upon trial 

of an accusation against him. It is not 

revenue measure intended to be a substitutioi 

for a fine, but is intended to secure the 

trial of the alleged offender rather than 

turn his securities or those of his bondsman 

into a penalty. (Emphasis added.) 

There is not only statutory authority for the police officer 

to take and approve a bail bond under certain circumstances, 

there is no 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). 

In those circumstances enumerated in articles 17.20 and 

17.22 where a municipal police officer is authorized to take 

the bail bond of the person he has in custody, we perceive 

no reason why bail bonds may not be taken at places other 

than at the county jail. The utilization of computers in 

the method you have suggested would appear to avoid delay in 

the bail 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 no violation of article III, 

section 52, of the Texas Constitution when bail bonds are 

accepted by peace officers at places other than the county 

p. 6437 
Honorable John Vance - Page 4 (JM-1217) 

jail under 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 for non-municipal offenses at locations other than the county jail pursuant to 

the provisions of articles 17.20, 17.21, and 

17.22 of the Code of Criminal Procedure is 

not violative of article III, section 52, of 

the Texas Constitution. 

Very tmld+ & 

MATTOX 

Attorney General of Texas 

1. Attorney General Opinion JM-760 (1987) addressed 

the matter of the release of a defendant on a personal bond 

under article 17.03 of the Code of Criminal Procedure. 

Attorney General Opinion JM-760 concluded: 

A peace officer may 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, art. 

6701d, 9 148 V.T.C.S.), release on personal bond a 

defendant charged with a misdemeanor. 

P. 6438 
i 

.-. 

Honorable John Vance - Page 5 (JM-1217) 

MARYKELLER 

First Assistant 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 Tom G. Davis 

Assistant Attorney General 

p. 6439