Can a Texas justice of the peace set bail over the phone or use a fixed bail schedule?

Texas AG Opinion DM-0057: Setting Bail by Telephone and Pre-Set Bail Schedules

Plain-English summary

A district attorney asked two questions about how bail can be set right after an arrest. First, can a justice of the peace, acting as a magistrate, set bail by telephone for someone who has just been arrested? Second, is it proper for a magistrate to post a schedule of fixed bail amounts at the county jail and use those amounts? The Attorney General answered no to both.

On the telephone question, the opinion walked through the post-arrest sequence in the Code of Criminal Procedure. A justice of the peace is a "magistrate." The earliest point at which a magistrate has clear statutory authority to set bail is when the arrested person is taken "before" the magistrate under articles 14.06 and 15.17, where the magistrate gives the warnings about the accusation and the right to remain silent and to counsel and admits the person to bail if the law allows. Article 15.17 expressly allows the arrestee to appear either in person or by closed-circuit television. Because the statute went to the trouble of authorizing closed-circuit television, the opinion read it as not contemplating an even more limited form of contact like a phone call. So a justice of the peace had no authority to set bail by phone before the arrestee appears before a magistrate. The opinion noted this did not leave arrestees stuck: a peace officer may set bail for misdemeanors under article 17.20, and for felonies under article 17.22 in limited circumstances.

On the schedule question, the opinion pointed to article 17.15, which lists factors a magistrate must weigh in setting bail, including the accused's ability to make bail, the circumstances of the offense, and the future safety of the victim, with Texas courts adding factors like work record, family ties, residency, and prior record. A prior Attorney General opinion had said bail "must be determined by the Constitution and rules set out in article 17.15, rather than by any arbitrary 'schedule of bond amounts.'" The opinion concluded bail amounts must be set case by case, not from a pre-set schedule.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Code of Criminal Procedure provisions on bail and magistration have been amended several times since 1991. Verify current statutes and case law before relying on anything here.

Common questions

Could a justice of the peace set bail over the phone for someone just arrested?
Under this 1991 opinion, no. The opinion found no statutory authority for setting bail by telephone before the arrestee is taken before a magistrate. The relevant statutes contemplated the person being brought before the magistrate in person or appearing by closed-circuit television, not a phone call.

Did that mean an arrestee could not get bail until seeing a magistrate?
Not necessarily. The opinion pointed out that a peace officer may set bail for misdemeanors under article 17.20, and for felonies under article 17.22 when the court where the case is pending is not in session in the county of custody and no bail has been fixed.

Could a magistrate use a posted schedule of fixed bail amounts?
No. The opinion concluded bail must be set on a case-by-case basis using the factors in article 17.15 and the Constitution, not from a pre-set schedule of bond amounts.

What factors went into setting bail?
Article 17.15 listed the accused's ability to make bail, the circumstances of the alleged offense, and the future safety of the victim. Texas courts had added the applicant's work record, family ties, residency, prior criminal record, and adherence to previous bail conditions.

Background and statutory framework

The opinion applied the Texas Code of Criminal Procedure as it stood in 1991. Article 2.09 makes a justice of the peace a magistrate. Articles 14.06 and 15.17 govern taking an arrestee before a magistrate, with article 15.17 specifying the warnings and allowing appearance in person or by closed-circuit television; article 16.01 concerns bail at an examining trial. Articles 17.20 and 17.22 let a peace officer set bail for misdemeanors and, in limited circumstances, felonies. Article 17.15 lists the factors for setting a bail amount, and the courts in Ex parte Goosby and Ex parte Willman added further factors. The constitutional backdrop is Texas Constitution article I, sections 11 and 11a (when bail may be denied) and section 13 ("excessive bail shall not be required"). The opinion also relied on Attorney General Opinion H-856 (1976) for the rule against arbitrary bond schedules.

Citations

Constitutional and statutory provisions:

• Code Crim. Proc. art. 2.09 (justice of the peace is a magistrate)
• Code Crim. Proc. arts. 14.06, 15.17 (taking arrestee before a magistrate; in person or by closed-circuit television)
• Code Crim. Proc. art. 16.01 (bail at examining trial)
• Code Crim. Proc. art. 17.15 (factors in setting a bail amount)
• Code Crim. Proc. arts. 17.20, 17.22 (peace officer setting bail for misdemeanors and certain felonies)
• Tex. Const. art. I, §§ 11, 11a (when bail may be denied)
• Tex. Const. art. I, § 13 (excessive bail prohibited)

Cases:

• Ex parte Goosby, 685 S.W.2d 440 (Tex. App.-Houston [1st Dist.] 1985, no writ)
• Ex parte Willman, 695 S.W.2d 752 (Tex. App.-Houston [1st Dist.] 1985, no writ)

Prior Attorney General opinion referenced: H-856 (1976).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0057
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0057.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

November 19, 1991

Honorable Richard C. Terrell
District Attorney
Jim Wells and Brooks Counties
P.O. Drawer 3157
Alice, Texas 78333

Opinion No. DM-57

Re: Whether a justice of the peace may set bail by telephone, and whether a magistrate may establish pre-set bail amounts by posting a schedule at the county jail (RQ-69)

Dear Mr. Terrell:

You ask whether a justice of the peace may set bail by telephone for a person who has just been arrested. We find no authority for a justice of the peace to set bail in this manner.

A justice of the peace is a "magistrate" for purposes of the provisions of the Code of Criminal Procedure. See Code Crim. Proc. art. 2.09. In the sequence of events following a person's arrest, the earliest stage for which we find specific statutory authorization for a magistrate's setting bail is that provided for in articles 14.06 and 15.17. See also id. art. 16.01 (magistrate to determine amount or sufficiency of bail at examining trial). Articles 14.06 and 15.17 provide that a person making an arrest shall "without unnecessary delay" take the person arrested, or have him taken, "before" a magistrate. The magistrate must at that time inform the arrestee of the accusation, give him "Miranda" warnings as to his right to remain silent, his right to counsel, etc., and inform him of his right to an examining trial. The magistrate must allow the arrestee opportunity to consult counsel "and shall admit the person arrested to bail if allowed by law."[1]

While article 14.06 merely directs the arresting officer to take the arrestee "before" a magistrate, article 15.17 provides that "the arrested person may be taken before the magistrate in person or the image of the arrested person may be broadcast by closed circuit television to the magistrate." Given the provisions for closed circuit television communication in article 15.17, we do not believe that the provisions of either article contemplate that their requirement of "taking before" a magistrate may be met by a more restricted form of contact such as telephone communication alone.

It should be noted that our conclusion here does not mean that an arrestee will never be able to be released on bail until such time as he is brought before a magistrate under articles 14.06 or 15.17. Article 17.20 permits a peace officer to set bail for all misdemeanors. Article 17.22 permits a peace officer to set bail for felonies where the court before which the case is pending "is not in session in the county where the defendant is in custody" and where no bail amount has theretofore been fixed. See generally Attorney General Opinion H-856 (1976); see also Tex. Const. art. I, §§ 11, 11a (providing for certain instances when bail may be denied).

In so concluding, we recognize that the entire process of setting bail may involve some communication by telephone. We limit our response here to what we understand to be the narrow issue you present: whether a justice of the peace, upon notification of a person's arrest and prior to the arrestee's appearance before a magistrate, may set bail by telephone. Again, we do not believe he has such authority.

You also ask whether it is "proper for a magistrate to have pre-set bail bond amounts by posting a schedule at the county jail?" Article 17.15 of the Code of Criminal Procedure provides that the factors to be considered in setting bail include the detainee's ability to make bail, the circumstances of the alleged offense, and the future safety of the victim. Texas courts have stated that the factors to be considered also include the bail applicant's work record, family ties, residency, prior criminal record, and adherence to previous bail bond conditions. See, e.g., Ex parte Goosby, 685 S.W.2d 440 (Tex. App.-Houston [1st Dist.] 1985, no writ); Ex parte Willman, 695 S.W.2d 752 (Tex. App.-Houston [1st Dist.] 1985, no writ). Attorney General Opinion H-856 noted that the amount of bail "must be determined by the Constitution and rules set out in article 17.15, rather than by any arbitrary 'schedule of bond amounts.'" See also Tex. Const. art. I, § 13 ("excessive bail shall not be required"). Accordingly, it is our opinion that bail amounts must be determined on a case-by-case basis, not pursuant to a pre-set schedule of amounts.

SUMMARY

A justice of the peace lacks authority to set bail by telephone for a person who has just been arrested and who has not appeared before a magistrate. Neither is it proper for bail amounts to be set according to a pre-set schedule. Bail must be determined on a case-by-case basis.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[1] The requirements as to advising the arrestee of the accusation and of his rights, and admitting him to bail, are specified in article 15.17. Article 14.06 simply requires that an arrestee be brought before a magistrate and directs the magistrate to "perform the duties described in Article 15.17." We need not address here to what extent articles 14.06 and 15.17 are distinct functions.