Can a Texas court order a defendant's rearrest without a hearing for violating pretrial bond conditions?

Plain-English summary

When someone is charged with a crime in Texas and released on bail, the court can attach conditions to that release, like staying away from an alleged victim or not committing new offenses. If the person breaks a condition, the court can revoke the bond, but article 17.40 of the Code of Criminal Procedure requires a hearing first, and the magistrate may revoke only after finding by a preponderance of the evidence that the violation happened. The Nueces County district attorney asked the AG a narrower, practical question: how does the court get the defendant back into the courtroom for that revocation hearing? Specifically, can a judge sign an arrest warrant, without a hearing, on credible evidence (a sworn affidavit) that the defendant violated a condition?

The AG worked through the statutory pieces. Article 17.40 governs the revocation hearing itself but says nothing about how to secure the defendant's presence beforehand. Article 17.09, section 3 is the provision that lets a court order a defendant rearrested "during the course of the action" when the court finds the existing bond defective, excessive, insufficient, or there is "other good and sufficient cause." Courts and a leading treatise have read a bond-condition violation as something that can make a previously set bond "insufficient," because it raises the risk the defendant will not appear. The AG agreed that article 17.09 could work together with article 17.40 as the vehicle for bringing the defendant in.

The harder part was the "without a hearing" piece. Article 17.09 requires the court to "find" insufficiency or good and sufficient cause, but it does not specify a procedure, and no Texas court has decided whether that finding can be made on an affidavit alone before any hearing. The AG leaned on the treatise (which suggests the State can make a preliminary ex parte showing to the judge that justifies a capias or arrest warrant), on the ordinary rule that an arrest warrant may issue on a sworn affidavit showing probable cause, and on article 16.16 (which lets a judge issue a warrant of arrest when an affidavit shows bail is insufficient or defective). Putting those together, the AG concluded that a court likely may, without a hearing, order a defendant's rearrest to secure the defendant's presence at a bond-revocation hearing, based on an officer's sworn affidavit showing probable cause that the defendant violated bond conditions. The AG was careful to say it could not answer the question definitively, only that a court likely has this authority in appropriate circumstances.

Currency note

This opinion was issued in 2019. 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, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Prosecutors and district attorneys: The opinion gave a measured green light to the practice the Nueces County DA described. At the time of the opinion, the AG read article 17.09, section 3 together with article 16.16 and ordinary arrest-warrant rules to support a court issuing an arrest warrant, without first holding a hearing, when an officer's sworn affidavit showed probable cause that a defendant had violated a bond condition. The AG stressed this was a "likely" conclusion in "appropriate circumstances," not a settled rule, and that no court had squarely decided the point.

Trial judges and magistrates: The opinion described two distinct steps the statutes keep separate. Securing the defendant's presence (the rearrest) was treated as something the court could likely do on an affidavit showing probable cause of a violation, under article 17.09's "good and sufficient cause" language. Actually revoking the bond, by contrast, required the article 17.40(b) hearing and a preponderance finding. The opinion also flagged article 28.01, noting a court may not conduct a hearing if it would be a "pretrial proceeding" the defendant must attend.

Defendants released on bond and their counsel: The opinion explained that a defendant on bail had a liberty interest in staying free absent a lawful rearrest order, but that the article 17.09 mechanism, backed by a probable-cause affidavit, likely supplied lawful authority for rearrest pending a revocation hearing. The treatise the AG quoted suggested a defendant is most likely entitled to be heard on whether bond is "insufficient" before a heavier bond is set, but less likely entitled to that hearing before being taken into custody.

Common questions

Does a bond-condition violation by itself mean the bond gets revoked in Texas?
No, not automatically. The opinion explained that article 17.40(b) requires a hearing limited to whether the violation occurred, and the magistrate may revoke only after finding by a preponderance of the evidence that it did. The rearrest the DA asked about was just the step to get the defendant to that hearing.

What is the difference between rearresting someone and revoking their bond?
The opinion treated them as separate acts. Rearrest secures the defendant's presence and, per the AG, could likely happen on a sworn affidavit showing probable cause of a violation under article 17.09's "good and sufficient cause" standard. Revocation is the later decision to end the bond, which requires the article 17.40(b) hearing and finding.

What does "good and sufficient cause" mean for raising or resetting bail?
The opinion quoted Texas courts saying "no precise standard exists" and that it has to be decided on the particular facts. Courts had found that a reevaluation of the circumstances, or a violation of a bond condition, could make a previously set bond "insufficient" and justify action under article 17.09, section 3.

Did the AG say the warrant could definitely issue without a hearing?
No. The AG repeatedly framed the answer as a likelihood, not a certainty, writing that "while we cannot definitively answer your question, we agree that a court likely has such authority in appropriate circumstances," because no Texas court had decided the precise procedural question.

Background and statutory framework

Chapter 17 of the Code of Criminal Procedure governs arrest, commitment, and bail. Article 17.01 defines "bail" as the security the accused gives that he will appear and answer the accusation. The opinion noted that a trial court has great discretion in setting bond but may exercise it only within the parameters of the Code (citing Liles and Ex parte Cardenas), and that a defendant released on bail has a liberty interest in remaining free absent a lawful rearrest order (Robinson).

Several Chapter 17 provisions let a court impose bond conditions. Article 17.40(a) lets a magistrate impose reasonable conditions related to victim or community safety, and article 17.40(b) lets the magistrate revoke the bond only after a hearing limited to whether the defendant violated a condition, on a preponderance finding. Article 17.09, section 3 is the provision authorizing rearrest "during the course of the action" when the court finds the bond defective, excessive, or insufficient, "or for any other good and sufficient cause." The opinion relied on Hernandez, Miller, and Marcantoni for the proposition that a bond-condition violation can make a bond "insufficient" and support action under section 3, and on the Dix & Schmolesky treatise for the suggestion that a preliminary ex parte showing can justify a capias or arrest warrant.

The opinion rounded out its reasoning with article 16.16 (a judge "shall issue a warrant of arrest" when an affidavit shows the bail is insufficient, the sureties are not good, or the bond is defective), the general arrest-warrant rule that a warrant may rest on a sworn affidavit showing probable cause (Horhn; articles 15.01-.05), the capias provisions of chapter 23 (which Ballard held are not an exclusive list), and appellate decisions upholding article 17.09 actions begun by the court sua sponte or on the State's motion (Liles; Ex parte Anunobi). A footnote noted that an early case, Jenkins, read the predecessor of article 16.16 to apply only to preliminary or examining trials.

Citations

Statutes and codes:

• Tex. Code Crim. Proc. arts. 17.01-.49; art. 17.01; art. 17.09, § 2; art. 17.09, § 3; arts. 17.40-.41, .43-.47, .49; art. 17.40(a), (b)
• Tex. Code Crim. Proc. art. 16.16
• Tex. Code Crim. Proc. art. 28.01, § 1
• Tex. Code Crim. Proc. arts. 15.01-.05
• Tex. Code Crim. Proc. arts. 23.01-.18

Cases:

• Liles v. State, 550 S.W.3d 668, 669 (Tex. App.-Tyler 2017, no pet.)
• Ex parte Cardenas, 557 S.W.3d 722, 729-30 (Tex. App.-Corpus Christi 2018, no pet.)
• Robinson v. State, 700 S.W.2d 710, 712-13 (Tex. App.-Houston [14th Dist.] 1985, no pet.)
• Ex parte Coker, 319 S.W.2d 120, 121 (Tex. Crim. App. 1958)
• Hernandez v. State, 465 S.W.3d 324, 326 (Tex. App.-Austin 2015, pet. ref'd)
• Miller v. State, 855 S.W.2d 92, 93-4 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd)
• Ex parte Marcantoni, No. 14-03-00079-CR, 2003 WL 1887883 (Tex. App.-Houston [14th Dist.] Apr. 17, 2003, no pet.)
• Ballard v. State, 33 S.W.3d 463, 465 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd)
• Sharp v. State, 677 S.W.2d 513, 517 (Tex. Crim. App. 1984)
• Horhn v. State, 481 S.W.3d 363, 369 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd)
• Ex parte Anunobi, 278 S.W.3d 425, 427 (Tex. App.-San Antonio 2008, no pet.)
• Jenkins v. State, 77 S.W. 224, 224 (Tex. Crim. App. 1903)

Secondary authority:

• George E. Dix & John M. Schmolesky, 41 Tex. Practice: Crim. Practice & Procedure §§ 21.51, 21.69 (3d ed. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0270
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-02700.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 24, 2019

The Honorable Mark A. Gonzalez Opinion No. KP-0270
105th Judicial District Attorney
Nueces County Courthouse Re: Authority of the State to obtain an arrest
901 Leopard, Room 206 warrant for a defendant previously released on
Corpus Christi, Texas 78401-3681 pretrial bond conditions if credible evidence
exists he violated those conditions (RQ-0283-KP)

Dear Mr. Gonzalez:

    You ask "[w]hether the State may seek and the trial court may, without a hearing, sign an

arrest warrant for a defendant who has been released on pre-trial bond conditions, upon credible
evidence that he has violated one or more of those conditions[.]"1

    Chapter 17 of the Code of Criminal Procedure governs arrest, commitment, and bail. TEX.

CODE CRIM. PROC. arts. 17.01-.49. "'Bail' is 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 a personal bond." Id. art. 17.01. A "trial court has great discretion when setting bond for a
person accused of a crime." Liles v. State, 550 S.W.3d 668, 669 (Tex. App.-Tyler 2017, no pet.).
However, a court may exercise discretion to make bail determinations only within the parameters
of the Code of Criminal Procedure. Ex parte Cardenas, 557 S.W.3d 722, 729-30 (Tex. App.-
Corpus Christi 2018, no pet.). A defendant released on bail has a liberty interest in remaining free
absent an order for rearrest authorized by law, Robinson v. State, 700 S.W.2d 710, 712-13 (Tex.
App.-Houston [14th Dist.] 1985, no pet.). A defendant who has given bail "shall not be required
to give another bond in the course of the same criminal action except" as provided by the statute.
TEX. CODE CRIM. PROC. art. 17.09, § 2; see Ex parte Coker, 319 S.W.2d 120, 121 (Tex. Crim.
App. 1958).

   Several provisions authorize a court to impose conditions on the bond. See TEX. CODE

CRIM. PROC. arts. 17.40-.41, .43-.47, .49. You ask specifically about article 17.40, which
provides:

            (a) To secure a defendant's attendance at trial, a magistrate may
            impose any reasonable condition of bond related to the safety of a
            victim of the alleged offense or to the safety of the community.

            (b) At a hearing limited to determining whether the defendant
            violated a condition of bond imposed under Subsection (a), the
            magistrate may revoke the defendant's bond only if the magistrate
            finds by a preponderance of the evidence that the violation occurred.
            If the magistrate finds that the violation occurred, the magistrate
            shall revoke the defendant's bond and order that the defendant be
            immediately returned to custody ....

Id. art. 17.40(a), (b). Subsection (b) authorizes a magistrate to revoke bond for violation of a bond
condition, but only after a hearing limited to that purpose, at which "the magistrate finds by a
preponderance of the evidence that the violation occurred." Id. art. 17.40(b). When a magistrate
makes such a finding at the hearing, the statute authorizes the magistrate to order that the defendant
be taken into custody. Id. But the statute does not address a magistrate's authority to issue an
order prior to this determination to rearrest the defendant to secure the defendant's presence at the
revocation hearing.

    You assert that article 17.09 provides a basis for securing the defendant's attendance for a

revocation hearing. Brief at 1-2. Article 17.09 governs a trial court's "ongoing authority to
manage a defendant's bond and terms of release." Hernandez v. State, 465 S.W.3d 324, 326 (Tex.
App.-Austin 2015, pet. ref'd); see TEX. CODE CRIM. PROC. art. 17.09 ("Duration; original and
subsequent proceedings; new bail"). Section 3 addresses the circumstances authorizing a court to
order the rearrest of a defendant to set new bail:

           Sec. 3. Provided that whenever, during the course of the action, the
           judge or magistrate in whose court such action is pending finds that
           the bond is defective, excessive or insufficient in amount, or that the
           sureties, if any, are not acceptable, or for any other good and
           sufficient cause, such judge or magistrate may, either in term-time
           or in vacation, order the accused to be rearrested, and require the
           accused to give another bond in such amount as the judge or
           magistrate may deem proper. When such bond is so given and
           approved, the defendant shall be released from custody.

TEX. CODE CRIM. PROC. art. 17.09, § 3 (emphasis added). Thus, article 17.09, section 3 authorizes
a court to order the rearrest of a defendant when the court finds the bond is insufficient in amount
or "other good and sufficient cause." Id.

   A leading authority states that violation of a bond condition may authorize a court to reset

bail under article 17.09, section 3: "Upon proof that a defendant has violated conditions on bond,
a magistrate might properly find that the risk of nonappearance has increased, the amount
previously set no longer is sufficient to assure appearance, and therefore the amount previously set
has become 'insufficient.'" George E. Dix & John M. Schmolesky, 41 TEX. PRACTICE: CRIM.
PRACTICE & PROCEDURE § 21.69 (3d ed. 2011) ("Dix"). A court also could issue an order affecting
bond for other good and sufficient cause. "No precise standard exists for determining what
constitutes 'good and sufficient cause' under Article 17.09." Miller v. State, 855 S.W.2d 92, 93-
4 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd); accord Ex parte Marcantoni, No. 14-03-
00079-CR, 2003 WL 1887883, at 2 (Tex. App.-Houston [14th Dist.] Apr. 17, 2003, no pet.)
(mem. op., not designated for publication). What constitutes good and sufficient cause for
increasing bail in a particular case must be determined on the particular facts. Miller, 855 S.W.2d
at 93-4; Marcantoni, at 2. One court determined that article 17.09 impliedly allows the trial court
to find good and sufficient cause for reasons "such as a reevaluation of the circumstances and the
adequacy of a defendant's bond." Hernandez, 465 S.W.3d at 326-27. Other courts have
determined that a violation of a bond condition can be a basis for requiring a bond in a higher
amount under article 17.09, section 3. See Miller, 855 S.W.2d at 94; Marcantoni, at *2. Thus,
article 17.09 could be used in conjunction with article 17.40 as a vehicle for securing a defendant's
presence at a revocation hearing.

    Your specific question is whether article 17.09 authorizes a court to order the rearrest of a

defendant without a hearing, based on a probation officer's sworn affidavit showing probable
cause that the defendant violated a condition of the bond, to secure the defendant's presence at a
bond revocation hearing. See Request Letter at 1; Brief at 1-2. Article 17.09, section 3 requires
the court to "find" a bond insufficient or "other good and sufficient cause" for ordering the
defendant's rearrest and imposing a new bond. TEX. CODE CRIM. PROC. art. 17.09, § 3. Article
17.09 does not, however, specify the procedure for making the finding nor have judicial opinions
established procedural requirements:

            The case law does not develop what might constitute the necessary
            "cause" for increasing bail nor does it address the procedure that is
            to be used. Most likely, a defendant is entitled to an opportunity to
            be heard on whether existing bond is "insufficient" or in some
            manner "excessive" before a more burdensome bond is set. It is less
            likely that he is entitled to this opportunity before being taken into
            custody; presumably, at least a preliminary showing can be made by
            the State to the judge ex parte, and this can justify the issuance of a
            capias or arrest warrant for the defendant.

Dix, § 21.51. Thus, while we cannot definitively answer your question, we agree that a court likely
has such authority in appropriate circumstances. See id. To begin with, a capias is a specific type
of warrant to arrest a defendant after commitment or bail and before trial, in circumstances set
forth in chapter 23. TEX. CODE CRIM. PROC. arts. 23.01-.18. Chapter 23 does not constitute an
exclusive list of circumstances in which a capias may issue. Ballard v. State, 33 S.W.3d 463, 465
(Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). For example, a common-law capias may issue
to arrest a defendant after mandate has issued; also, a capias is an appropriate means for bringing
a parole violator before the court. Id. at 465-66. Issuance of capias generally requires probable
cause determined by a neutral magistrate. Sharp v. State, 677 S.W.2d 513, 517 (Tex. Crim. App.
1984); but see Ballard, 33 S.W.3d at 467 (holding that because of the status of parolees, a capias
to arrest a parolee need not be based on probable cause). For a bond revocation hearing, the
relevant cause is whether the defendant has violated the court's order setting bond conditions.

TEX. CODE CRIM. PROC. art. 17.40(b). Although no court has addressed the issue, probable cause
that a bond condition violation occurred likely would constitute "good and sufficient cause"
authorizing the court's issuance of capias to secure the defendant's attendance at a revocation or
bond-increase hearing. See Dix, § 21.51.

    Article 17.09 does not specify a procedure for a court to find insufficient bond or other

good and sufficient cause. TEX. CODE CRIM. PROC. art. 17.09. Moreover, a court may not conduct
a hearing if it would constitute a "pretrial proceeding" at which a defendant must be present under
article 28.01. See id. art. 28.01, § 1. However, a traditional arrest warrant may be based on an
officer's sworn affidavit showing probable cause that the accused has committed a criminal
offense. Horhn v. State, 481 S.W.3d 363, 369 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd);
see also TEX. CODE CRIM. PROC. arts. 15.01-.05. Also, article 16.16 authorizes trial court judges
to rearrest a defendant:

              Where it is made to appear by affidavit ... that the bail taken in any
              case is insufficient in amount, or that the sureties are not good for
              the amount, or that the bond is for any reason defective or
              insufficient, [the judge] shall issue a warrant of arrest, and require
              of the defendant sufficient bond and security, according to the nature
              of the case."2

TEX. CODE CRIM. PROC. art. 16.16. And appellate courts have upheld decisions under article 17.09
initiated on the court's sua sponte motion or the State's motion. See, e.g., Liles, 550 S.W.3d at
671 (court's order revoking bond following indictment alleging aggravated circumstances that
seriously increased the gravity of the crime charged); Ex parte Anunobi, 278 S.W.3d 425, 427
(Tex. App.-San Antonio 2008, no pet.) (ordering arrest and setting a hearing on State's motion
to increase bail and impose conditions). Thus, a court likely may, without a hearing, order a
defendant's rearrest to secure the defendant's presence at a bond-revocation hearing, based on an
officer's sworn affidavit showing probable cause that the defendant has violated bond conditions.

    2An early opinion determined that the predecessor statute of article 16.16 applies only to preliminary or

examining trials and does not authorize imposing additional bail after indictment. See Jenkins v. State, 77 S.W. 224,
224 (Tex. Crim. App. 1903).

                                 SUMMARY

                  A court likely may, without a hearing, order a defendant's
          rearrest to secure the defendant's presence at a bond-revocation
          hearing, based on an officer's sworn affidavit showing probable
          cause that the defendant has violated bond conditions.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

1Letter and Brief from Honorable Mark A. Gonzalez, Dist. Att'y, 105th Jud. Dist., Nueces Cty., to Op. Comm., Office of the Att'y Gen. at 1 (Apr. 16, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Brief").