Which court does a bail bondsman file with to surrender a defendant before charges are formally filed?

Plain-English summary

Daphne Session, the Houston County Attorney, asked the Attorney General which court a surety should use to file the documents that surrender or discharge liability on a bond principal under articles 17.16 and 17.19 of the Code of Criminal Procedure. Article 17.16 lets a surety (typically a bail bondsman) be absolved of liability when the principal who was released on bond is later incarcerated, by filing an affidavit and having the sheriff verify the incarceration to the magistrate before which the prosecution is pending. Article 17.19 lets a surety surrender a principal who is not incarcerated by filing an affidavit of that intention before the court or magistrate before which the prosecution is pending.

The practical problem was the timing. In Houston County, most arrested people are taken first before a justice of the peace for warnings and bail, but a county court, county court-at-law, or district court usually hears the case on the merits. The justices of the peace believed they lost jurisdiction over a surety's release once they set the bond, which left a gap: after bond was set but before a formal charging instrument was filed, the county attorney said there was no court where a surety could file to surrender a principal.

The Attorney General resolved the gap by pointing to where the "prosecution is pending." Relying on Letter Opinion 98-066, it concluded that prosecution is pending before the court or magistrate who properly received the complaint against the accused, whether that complaint is a formal charging instrument, the basis for an arrest warrant, or another form of complaint. The AG noted that "magistrate" is defined broadly to include justices of the peace, county judges, county court-at-law judges, and district judges, and that later amendments to the two articles did not change which court is the right place to file. So for both articles 17.16 and 17.19, before a formal charging instrument is filed, the affidavit goes to the magistrate who properly received the complaint.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Houston County Attorney (as the opinion described it): The opinion answered that there was no real gap. For both articles 17.16 and 17.19, after a person is released on bond but before a formal charging instrument is filed in the county, county court-at-law, or district court, the prosecution is pending before the magistrate who properly received the complaint against the accused, and that is where the surety files. The opinion noted that "magistrate" includes justices of the peace, so the local belief that a justice of the peace loses all jurisdiction after setting bond did not leave the surety without a forum.

Sureties and bail bondsmen (as the opinion described it): The opinion told sureties that they are not limited to filing in the court where a formal charging instrument is eventually filed; until the case is transferred to the court that will hear it on the merits, the affidavit may be filed with the magistrate who received the initial complaint.

Common questions

Where does a bail bondsman file to surrender a defendant before formal charges?
According to the opinion, with the magistrate who properly received the complaint against the accused, because that is where the prosecution is "pending" for purposes of articles 17.16 and 17.19.

Does a justice of the peace lose all authority after setting bond?
The opinion explained that "magistrate" is defined broadly to include justices of the peace, and that prosecution can be pending before the magistrate who received the complaint, so a justice of the peace can still be the proper filing forum during the pre-charge gap.

Does this apply both to surrendering and to releasing a surety?
Yes. The opinion applied the same "where prosecution is pending" rule to article 17.19 (surrender of a non-incarcerated principal) and article 17.16 (discharge when the principal is incarcerated).

Did the 2007 and 2011 amendments change where to file?
The opinion concluded they did not. The 2007 changes to article 17.19 and the 2011 changes to article 17.16 added procedural requirements but did not affect the proper court in which to file the affidavit.

Background and statutory framework

The opinion worked through the two statutes. Article 17.16 sets the procedure for discharging a surety when the principal is incarcerated: the surety files an affidavit with the sheriff and prosecutor (art. 17.16(a)(2)), the sheriff verifies and notifies the magistrate before which the prosecution is pending (art. 17.16(b)), and the bond is discharged on verification (art. 17.16(e)). Article 17.19 lets a surety surrender a non-incarcerated principal by filing an affidavit before the court or magistrate before which the prosecution is pending (art. 17.19(a)), with the court issuing a capias or the magistrate a warrant of arrest on a finding of cause (art. 17.19(b)). The opinion also referenced art. 15.17 on the duties of the arresting officer and magistrate, and art. 23.01 supplied the definition of a capias.

The core authority was Letter Opinion 98-066, which held that a surety is not limited to the court where the formal charging instrument is filed and that prosecution is pending before the court or magistrate who properly received a complaint. The opinion found that the 2007 amendments to article 17.19 and the 2011 amendments to article 17.16 did not alter that analysis, and it relied on article 2.09's broad definition of "magistrate" (including justices of the peace, county judges, county court-at-law judges, and district judges).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 17.16 (including art. 17.16(a)(2), (b), (c), (e)) (West Supp. 2012)
• Tex. Code Crim. Proc. Ann. art. 17.19 (including art. 17.19(a), (b)) (West Supp. 2012)
• Tex. Code Crim. Proc. Ann. art. 15.17 (West Supp. 2012)
• Tex. Code Crim. Proc. Ann. art. 23.01 (West 2009)
• Tex. Code Crim. Proc. Ann. art. 2.09

Other authority:

• Tex. Att'y Gen. LO-98-066
• Act of May 21, 2007, 80th Leg., R.S., ch. 1263, § 2, 2007 Tex. Gen. Laws 4228, 4228-29
• Acts of May 5, 2011, 82d Leg., R.S., ch. 87, § 1, 2011 Tex. Gen. Laws 444, 444-45

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1021
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1021.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 26, 2013

The Honorable Daphne Session Opinion No. GA-1021
Houston County Attorney
401 East Houston Avenue, 2nd Floor Re: The appropriate court for a surety to file
Crockett, Texas 75835 a release of surety for the surrender of a bond
principal (RQ-1121-GA)

Dear Ms. Session:

You ask about "the proper court in which a surety may file a release of surety for the surrender of a bond principal" under articles 17.16 and 17.19 of the Code of Criminal Procedure.[1]

When a person who has been released from custody on a bond later becomes incarcerated, article 17.16 of the Code of Criminal Procedure establishes a procedure by which the person's surety, typically a bail bondsman, may be absolved of liability on the bond. TEX. CODE CRIM. PROC. ANN. art. 17.16 (West Supp. 2012). To discharge liability, the surety must provide "to the sheriff of the county in which the prosecution is pending and to the office of the prosecuting attorney an affidavit stating that the accused is incarcerated." Id. art. 17.16(a)(2). The sheriff must then verify the incarceration and, once verified, must "notify the magistrate before which the prosecution is pending of the verification." Id. art. 17.16(b) (emphasis added). "[T]he bond is discharged and the surety is absolved of liability on the bond on the verification of the incarceration of the accused." Id. art. 17.16(e).

In instances where the principal (the accused person released from custody on a bond) is not incarcerated, article 17.19 provides a procedure by which a surety may attempt to surrender the principal. Id. art. 17.19. To do so, the surety must "file an affidavit of such intention before the court or magistrate before which the prosecution is pending," stating, among other things, the cause for the surrender. Id. art. 17.19(a) (emphasis added). "In a prosecution pending before a court, if the court finds that there is cause for the surety to surrender the surety's principal, the court shall issue a capias for the principal."[2] Id. art. 17.19(b). If the prosecution is pending before a magistrate, and the magistrate makes a similar finding, "the magistrate shall issue a warrant of arrest for the principal." Id.

You explain that in Houston County, the majority of arrested persons are initially taken before a justice of the peace to receive Miranda warnings and for bail proceedings, but that in most instances a county court, a county court-at-law, or a district court presides over the case on the merits. See Request Letter at 1; see TEX. CODE CRIM. PROC. ANN. art. 15.17 (West Supp. 2012) ("Duties of arresting officer and magistrate"). You further explain that the justices of the peace in Houston County believe that they do not have jurisdiction over the release of a surety after they have set the bond amount. Request Letter at 3. Thus, you explain that after bond is set but before a formal charging instrument is filed, "there is no court in Houston County with which a surety can file an affidavit to surrender a bond principal." Id. With regard to both articles 17.16 and 17.19, you ask before which court or magistrate a "prosecution is pending" after a person is released on a bond but before a formal charging instrument is filed in the county, county court-at-law, or district courts. Id. at 2.

In Letter Opinion 98-066, this office addressed your question with regard to article 17.19. That opinion concluded that "a surety is not limited to filing an affidavit for surrender of a bond principal to the court in which the formal charging instrument has been filed." Tex. Att'y Gen. LO-98-066, at 5. Instead, "a prosecution is pending before the court or magistrate who properly received a complaint, whether the complaint is a formal charging instrument, the basis for an arrest warrant, or some other 'complaint' charging the commission of an offense."[3] Id. at 6 (emphasis added). Until "a case is transferred to a court that will hear further proceedings" on the merits of the case, "the affidavit for surrender of bond principal should be filed with the magistrate who received" the initial complaint. Id.

The Legislature amended article 17.19 in 2007, after Letter Opinion 98-066 was issued.[4] In those amendments, the Legislature added language to subsection (b) expressly requiring that when prosecution is pending before a magistrate, "if the magistrate finds that there is cause for the surety to surrender the surety's principal, the magistrate shall issue a warrant of arrest for the principal." TEX. CODE CRIM. PROC. ANN. art. 17.19(b) (West Supp. 2012). The term "magistrate" is defined broadly for purposes of the Code of Criminal Procedure and expressly includes justices of the peace, county judges, county court-at-law judges, and district judges. Id. art. 2.09. We find nothing in the 2007 amendments that would change the relevant analysis in Letter Opinion 98-066. Thus, after a person is released on a bond but before a formal charging instrument is filed in the county, county court-at-law, or district court, prosecution is pending for purposes of article 17.19 before the court or magistrate who properly received a complaint.

Article 17.16 uses the same relevant language as article 17.19. Once the sheriff has verified the incarceration, "the magistrate before which the prosecution is pending shall direct the clerk of the court to issue a capias for the arrest of the accused" in most circumstances. Id. art. 17.16(c) (emphasis added). The analysis in Letter Opinion 98-066 is therefore applicable to article 17.16. You note that the Legislature amended article 17.16 in 2011, and it is those changes that lead the justices of the peace to believe "they do not have jurisdiction related to the release of a surety." Request Letter at 3. The 2011 amendments added the requirements that the sheriff verify the incarceration and that the magistrate direct the clerk of the court to issue a capias for the arrest of the accused in certain circumstances.[5] However, the amendments did not have any effect on the proper court in which to file the affidavit. Thus, after a person is released on a bond but before a formal charging instrument is filed in the county, county court-at-law, or district court, prosecution is pending for purposes of article 17.16 before the magistrate who properly received a complaint.

SUMMARY

For purposes of Code of Criminal Procedure articles 17.16 and 17.19, after a person is released on a bond but before a formal charging instrument is filed in the county, county court-at-law or district court, prosecution is pending before the magistrate who properly received a complaint against the accused.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Daphne Session, Houston Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1-2 (Apr. 15, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] While "capias" is not defined specifically for chapter 17, it is defined for other purposes in the Code of Criminal Procedure as "a writ that is: (1) issued by a judge of the court having jurisdiction of a case after commitment or bail and before trial ... ; and (2) directed 'To any peace officer of the State of Texas', commanding the officer to arrest a person accused of an offense and bring the arrested person before that court immediately or on a day or at a term stated in the writ." TEX. CODE CRIM. PROC. ANN. art. 23.01 (West 2009).

[3] Letter Opinion 98-066 noted that in instances when a person is arrested without a warrant, and thus without a pre-arrest complaint having been filed, the arresting officer files an affidavit or some other form to show probable cause as to why the person should be detained. Id. at 3. The opinion explained that these documents could be considered "complaints" such that prosecution is pending before the magistrate that receives them. Id.

[4] Act of May 21, 2007, 80th Leg., R.S., ch. 1263, § 2, 2007 Tex. Gen. Laws 4228, 4228-29.

[5] Acts of May 5, 2011, 82d Leg., R.S., ch. 87, § 1, 2011 Tex. Gen. Laws 444, 444-45.