Can Texas police accept a bail bond somewhere other than the county jail?

Texas AG Opinion JM-1217: Can Police Accept a Bail Bond Away from the County Jail?

Plain-English summary

The Dallas County district attorney asked the Attorney General about a system the sheriff's department had set up to speed up posting bail. Under the old system, when a municipal police officer arrested someone for a non-municipal offense (a county or state charge rather than a city ordinance violation), the prisoner sat in the municipal jail until whoever was posting bond drove to the county jail and paid the sheriff directly. For a surety bond, that meant two or more trips back and forth between the municipal facility and the county jail.

The new system used computers: the sheriff's office would be told electronically that a municipal officer had someone in custody, then send the bond and release forms to the police department the same way. The municipal agency collected the signatures, a police officer approved the bond, the suspect was released, and the bond money or surety bond went to the sheriff's office the next day. The county auditor worried this arrangement had the county effectively lending its credit, which article III, section 52 of the Texas Constitution forbids.

The Attorney General concluded there was no constitutional problem. Articles 17.20, 17.21, and 17.22 of the Code of Criminal Procedure already authorize a sheriff "or other peace officer," including a city police officer, to take a bail bond from a defendant in custody in certain circumstances. Because taking a bail bond secures the defendant's appearance at trial rather than extending credit from the county to the defendant, accepting the bond at a municipal facility instead of the county jail did not violate the lending-of-credit prohibition.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG 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 mentioned here.

Who this opinion affected (as of 1990)

County sheriffs and district attorneys: The opinion approved letting municipal police officers accept bail bonds for non-municipal offenses at the police department and forward the money or surety bond to the sheriff afterward, so long as the officer was one authorized to take the bond under articles 17.20, 17.21, or 17.22. It treated the computer-based posting arrangement as a permissible efficiency, not a lending of the county's credit.

Municipal police officers: The opinion confirmed that city police are "peace officers" under article 2.12 and may take and approve bail bonds in the circumstances the Code of Criminal Procedure allows, so accepting a bond away from the county jail was within their authority.

People arrested for non-municipal offenses: For arrestees at the time, the opinion supported a faster release process, avoiding the prior back-and-forth trips to the county jail to post bond.

Common questions

Does a bail bond have to be posted at the county jail in Texas?
Not necessarily, according to this opinion. The Attorney General saw no reason bail bonds could not be taken at places other than the county jail when a peace officer authorized under articles 17.20, 17.21, or 17.22 of the Code of Criminal Procedure accepts the bond of a person in custody.

Why was the county auditor worried about "lending of credit"?
Article III, section 52 of the Texas Constitution bars a county from lending its credit or granting public money or anything of value to a private individual. The auditor questioned whether the sheriff's arrangement for municipal police to post bonds amounted to that. The opinion answered no: taking a bail bond is not a transaction in which the county extends credit to the defendant.

What is a bail bond actually for?
The opinion quoted the Court of Criminal Appeals in McConathy v. State: the "prime object or purpose of bail is to secure the presence of an accused upon trial," not to serve as a revenue measure or a substitute for a fine. Because the bond secures appearance rather than lending money, the constitutional concern did not apply.

Background and statutory framework

Article 17.01 of the Code of Criminal Procedure defines "bail" as the security given by the accused that he will appear and answer the accusation against him, and it includes a bail bond or a personal bond. Article 17.02 defines a "bail bond" as a written undertaking by the defendant and his sureties for the defendant's appearance, and allows a defendant instead to deposit cash in the amount of the bond with the custodian of the court's funds. Article 17.05 says a bail bond is entered into before a magistrate or judge, or is taken from the defendant by a peace officer if authorized by article 17.20, 17.21, or 17.22.

Those three articles set out when peace officers may take bonds: article 17.20 lets a sheriff or other peace officer take a bail bond in a misdemeanor case from a defendant in custody; article 17.22 covers felony cases when the court is not in session; and article 17.21 governs situations where the court is in session, with the court fixing the amount of bail. City police officers count as peace officers under article 2.12. Against that statutory backdrop, the opinion reasoned that because a police officer already has statutory authority to take and approve a bail bond in defined circumstances, and because accepting a bond involves no extension of county credit to the defendant, the sheriff's arrangement did not violate article III, section 52 of the Texas Constitution. A footnote noted that a separate opinion, JM-760 (1987), had addressed release on a personal bond under article 17.03 and concluded a peace officer may not release a misdemeanor defendant on personal bond without authorization from a court or magistrate, apart from the traffic-case exception in article 6701d, section 148, V.T.C.S.

Citations

Statutes:

• Tex. Code Crim. Proc. art. 17.01 (definition of "bail")
• Tex. Code Crim. Proc. art. 17.02 (definition of "bail bond")
• Tex. Code Crim. Proc. art. 17.05 (how a bail bond is entered into or taken)
• Tex. Code Crim. Proc. art. 17.20 (bail bond in misdemeanor cases)
• Tex. Code Crim. Proc. art. 17.21 (bail when court is in session)
• Tex. Code Crim. Proc. art. 17.22 (bail bond in felony cases)
• Tex. Code Crim. Proc. art. 2.12 (definition of peace officers)
• Tex. Code Crim. Proc. art. 17.03 (personal bond)
• V.T.C.S. art. 6701d, § 148 (release by written promise to appear in traffic cases)
• Tex. Const. art. III, § 52 (prohibition on a county lending its credit)

Cases:

• McConathy v. State, 528 S.W.2d 594 (Tex. Crim. App. 1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1217
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1217.pdf

Original opinion text

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

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" 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:

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; or it is taken from the defendant by a peace officer if authorized by Article 17.20, 17.21 or 17.22. (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 "unless 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 auditor's 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.

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 credit or to grant public money or [any] thing of value in aid of . . . [any] individual, association or corporation whatsoever." See Attorney General Opinion JM-522 (1986).

The court of criminal appeals in McConathy v. State, 528 S.W.2d 594 (Tex. Crim. App. 1975), reviewed the 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 a revenue measure intended to be a substitution 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 generally 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 in the municipalities within the county. 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 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 truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General