MS 2024-08-W-White-August-15-2024-Authority-to-Set-Bonds August 15, 2024

When can a Mississippi sheriff set bail, and can the sheriff refuse cash bonds?

Short answer: A Mississippi sheriff may set bail only in two narrow situations: misdemeanor arrests where no judicial officer has set bond, and felony arrests in 'emergency circumstances' under Section 19-25-67. Whether to allow or disallow cash bonds is the committing court's call under Section 99-5-9, not the sheriff's.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

Neshoba County asked two questions about who controls bail decisions when a person is in the sheriff's custody. The AG drew a clean line.

On setting bail, the sheriff is generally not the bail-setter. That job belongs to a judicial officer. The sheriff has authority only in two narrow situations: (1) misdemeanor arrests where no judge has fixed bond yet, and (2) felony arrests under "emergency circumstances," meaning the arrestee was taken into custody without a warrant and cannot be brought before a judge for a probable-cause determination within 48 hours or a reasonable time, whichever is shorter. Outside those two scenarios, the sheriff has no statutory authority to set the amount or conditions of bond.

On disallowing cash bonds and forcing defendants to use a bail bondsman, the sheriff cannot make that call either. Section 99-5-9 vests the discretion to allow cash bonds in the "committing court." Whether a defendant can post cash in lieu of a surety or property bond is the court's decision, not the sheriff's.

What this means for you

For sheriffs and jail administrators

You can set misdemeanor bail when no judge has, and you can set felony bail in true emergency circumstances under Section 19-25-67. Beyond those two scenarios, do not set or modify bond amounts or conditions, and do not unilaterally refuse cash bonds. The cash-bond decision belongs to the court that committed the defendant; the court's order should specify whether cash is allowed and on what conditions. If a defendant arrives at the jail with cash and the committing court's order has authorized cash bonds, your office accepts the cash, receipts it, delivers the funds to the county treasurer, and gets the receipt back to the court so the court can order release.

For people held in a Mississippi jail and their families

If you are in a county jail and bond has not been set, you have a constitutional right to bail and you cannot be held indefinitely. For a misdemeanor, the sheriff can set bond if a judge has not. For a felony arrest where there has been no probable-cause hearing within 48 hours, the sheriff can set bond. Whether you can post cash instead of using a bondsman is up to the judge who committed you, not up to jail staff. If you are being told you must use a bondsman because "the sheriff doesn't take cash," ask what the committing court's order says.

For defense attorneys and bondsmen

Two flagging points. First, if a sheriff in Mississippi sets felony bail, ask whether the "emergency circumstances" definition in Section 19-25-67 was actually met (no warrant arrest plus no judicial officer available within 48 hours or a reasonable time). The sheriff's authority does not extend to ordinary felony arrests with timely first appearances. Second, if a court order allows cash bonds and the jail is refusing cash, the issue is procedural compliance with Section 99-5-9, not sheriff discretion. Section 99-5-9 walks through the deposit-and-receipt sequence the sheriff must follow.

For judges and committing courts

Your bail order is the operative document on cash. Section 99-5-9 expressly says it is the "committing court, in its discretion" that decides whether cash bonds are allowed in addition to other authorized bail forms. Drafting that authorization clearly into the bond order, with conditions, removes ambiguity for the sheriff and avoids the situation where jail staff feel they have to make a discretionary call themselves.

Common questions

Can a Mississippi sheriff set my bond?

Only in two situations. If you are arrested for a misdemeanor and no judge has set your bond yet, the sheriff can. Section 99-33-7 caps the sheriff's misdemeanor bond at not less than $50 and not more than $1,000. If you are arrested for a felony, the sheriff can only set bond in "emergency circumstances," which the statute defines specifically: warrantless arrest, no probable-cause hearing available within 48 hours or a reasonable time, whichever is shorter.

What does "emergency circumstances" mean for a felony bond?

Section 19-25-67 defines it: a person was arrested without a warrant, and the person cannot be brought before a judicial officer for a probable-cause determination within a reasonable time or within 48 hours of arrest, whichever is the lesser. The reason for the rule is constitutional. The Mississippi Supreme Court in Sheffield v. Reece (1947) said that holding a citizen in custody beyond a reasonable time without bail violates the constitutional right to bail, so the sheriff has implied authority to release rather than violate the constitution.

Can a sheriff refuse to take a cash bond and require I use a bail bondsman?

No. The decision to allow cash in lieu of surety or property bail is the committing court's, not the sheriff's. Section 99-5-9 vests that discretion in the court. Once the court orders cash bond allowed, the sheriff must accept the deposit, receipt it, and forward it to the county treasurer.

What does the cash-bond process actually look like?

Per Section 99-5-9: the committing court allows cash bonds in its order; the defendant deposits the court-directed sum with the sheriff; the sheriff receipts the cash and delivers it to the county treasurer; the treasurer issues duplicate receipts; the sheriff delivers a copy back to the committing court; the court orders the defendant's release. The court's order also sets the conditions of the cash bond.

What if the sheriff sets a bond after the judge already did?

The sheriff has no authority to do that. The sheriff's bail-setting authority exists only when no judicial officer has fixed bond. Once a judge has set bond, the sheriff's role is to enforce the judge's terms, not to revisit them.

Beyond setting the dollar amount, can the sheriff set bond conditions like check-ins, no-contact orders, or curfews?

The opinion notes that Mississippi law "does not speak to a sheriff's ability to set bond conditions." That is a way of saying there is no statutory grant of authority. In the narrow situations where the sheriff can set bail at all, the authority is to set the bail amount; conditions are typically the court's domain.

Background and statutory framework

Section 99-33-7 (misdemeanor bond by an arresting officer with a justice court warrant): authorizes "any officer having a person in custody by virtue of a warrant of a justice court judge, in a case in which the judge has a final jurisdiction, to take bond with sufficient sureties, in a sum of not less than Fifty Dollars ($50.00), nor more than One Thousand Dollars ($1,000.00) … and to fix the amount of the bond."

Section 19-25-67 (felony bond by sheriff in emergencies): authorizes the sheriff to "take bonds, with good and sufficient sureties, of any person whom he may arrest with or without a warrant for any felony that is bailable as a matter of law" and to "fix the amount of such bonds, only in emergency circumstances," where "emergency circumstances" means a warrantless arrest with no probable-cause hearing available within 48 hours or a reasonable time, whichever is shorter.

Section 99-5-9 (cash bonds): "any committing court, in its discretion, may allow any defendant, to whom bail is allowable, to deposit cash as bail bond in lieu of a surety or property bail bond." The court's order sets the conditions. The sheriff acts as the depository, not the decision-maker.

Section 83-39-1(j) (definition of "bail"): money, property, or other security used to cause the release of a defendant from custody and secure the defendant's appearance.

Sheffield v. Reece, 28 So. 2d 745 (Miss. 1947), is a Mississippi Supreme Court decision (the "So. 2d" reporter is the regional reporter for Mississippi state cases). The Court held that an arrestee must not be held an unreasonable length of time without bail, and the sheriff has implied constitutional authority to release rather than violate the right to bail.

Citations

Miss. Code Ann. § 19-25-67
Miss. Code Ann. § 99-5-9
Miss. Code Ann. § 99-33-7
Miss. Code Ann. § 83-39-1(j)
Sheffield v. Reece, 28 So. 2d 745 (Miss. 1947)
MS AG Op., Tolar (Oct. 31, 2003)
MS AG Op., Welch (Aug. 16, 1995)
MS AG Op., Rasco (Oct. 2, 2023)

Source

Original opinion text

August 15, 2024
Wade White, Esq.
Attorney, Neshoba County
501 Main Street
Philadelphia, Mississippi 39350
Re:

Authority to Set Bonds

Dear Mr. White:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. May the sheriff set the amount and conditions of a bond for the release of a detainee?
2. If the sheriff is not allowed to be the individual to set the amount and conditions of the
bond, may the sheriff disallow cash bonds and only allow the posting of bonds by a bail
bondsperson?
Brief Response
1. A sheriff may (1) set bail for persons arrested for misdemeanors when bond has not been
fixed and approved by a judicial officer and (2) set the amount of bond for felony offenses
under emergency circumstances as set forth in Mississippi Code Annotated Section 19-25-67.
2. Pursuant to Section 99-5-9, it is the committing court's decision to allow or disallow cash
bonds.
Applicable Law and Discussion
You first ask if the county sheriff may set the amount and conditions of a bond for the release of a
detainee. This office has previously opined that yes, a sheriff may set bonds in certain limited
circumstances. See MS AG Op., Tolar at 1 (Oct. 31, 2003); MS AG Op., Welch at 1 (Aug. 16,
1995). First, "a sheriff has the authority to set and approve bail, where not already fixed and
approved by a judicial officer, for persons arrested for misdemeanor offenses." MS AG Op., Tolar
at 1 (citing MS AG Op., Welch at 1). Second, pursuant to Section 19-25-67, "a sheriff may set
the amount of bond for bailable felony offenses under 'emergency circumstances.'" Tolar at *1.
In Welch, this office relied on Section 99-33-7 and Sheffield v. Reece, 28 So. 2d 745 (Miss. 1947),
in concluding that a sheriff may set bail for persons arrested for misdemeanors when it has not
been fixed and approved by a judicial officer. Section 99-33-7 states:
It is lawful for any officer having a person in custody by virtue of a warrant of a
justice court judge, in a case in which the judge has a final jurisdiction, to take bond
with sufficient sureties, in a sum of not less than Fifty Dollars ($50.00), nor more
than One Thousand Dollars ($1,000.00) . . . and to fix the amount of the bond, which
shall be returned to the judge and be filed and proceeded on by him in a case of
forfeiture, if for not more than Two Hundred Dollars ($200.00), as in like cases in
the circuit court, as near as may be.
(emphasis added). Beyond Section 99-33-7's limited allowance, in Sheffield, the Mississippi
Supreme Court reasoned that the Constitution gives a sheriff implied authority to set bail in
instances that would otherwise result in a citizen being held in custody for an unreasonable length
of time:
An officer should need no authority other than that implied under the Constitution
and the statutes hereinbefore discussed to inform him that he should not hold the
citizen in custody for an unreasonable length of time in violation of his
constitutional right to bail. It would be better that an offender, who is arrested
without a warrant by a sheriff or private person on their own authority, be released
without bail, than that he should be detained in jail in violation of the Constitution.
28 So. 2d at 748.
This reasoning aligns with Section 19-25-67, which applies specifically to felony offenses and
states that a sheriff
may take bonds, with good and sufficient sureties, of any person whom he may
arrest with or without a warrant for any felony that is bailable as a matter of law.
He may fix the amount of such bonds, only in emergency circumstances.
"Emergency circumstances" means a situation in which a person is arrested without
a warrant and cannot be taken before a judicial officer for a determination of
probable cause within a reasonable time, or within forty-eight (48) hours,
whichever is the lesser, after the arrest.
(emphasis added).
For these reasons, it is the opinion of this office that a sheriff may (1) set bail for persons arrested
for misdemeanors when it has not been fixed and approved by a judicial officer, and (2) set the
amount of bond for felony offenses under emergency circumstances as set forth in Section 19-25-67. Beyond this, Mississippi law does not speak to a sheriff's ability to set bond conditions.
You next ask if the sheriff can disallow cash bonds and only allow the posting of bonds by a bail
bondsperson. Section 99-5-9 addresses cash bonds and provides, in part:
(1) In addition to any type of bail allowed by statute, any committing court, in its
discretion, may allow any defendant, to whom bail is allowable, to deposit cash as
bail bond in lieu of a surety or property bail bond, by depositing such cash sum as
the court may direct with the sheriff or officer having custody of defendant, who
shall receipt therefor and who shall forthwith deliver the said monies to the county
treasurer, who shall receipt therefor in duplicate. The sheriff, or other officer, upon
receipt of the county treasurer, shall forthwith deliver one (1) copy of such receipt
to the committing court who shall then order the release of such defendant.
(2) The order of the court shall set forth the conditions upon which such cash bond
is allowed and shall be determined to be the agreement upon which the bailee has
agreed.
(emphasis added). Accordingly, it is the opinion of this office that it is the committing court's
decision to allow or disallow cash bonds.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General