Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE ATTORNEY GENERAL. STATE Of TEXAS
JOHN CORNYN
May 4,200O
The Honorable Susan D. Reed Opinion No. JC-0215
Bexar County Criminal District Attorney
Bexar County Justice Center Re: Whether a magistrate may require a bailable
300 Dolorosa, Fifth Floor criminal defendant to satisfy a “split bond” (part
San Antonio, Texas 78205-3030 personal bond, part bail bond backed by a surety),
and related question (RQ-0159-JC)
Dear Ms. Reed:
You ask whether a magistrate may require a bailable criminal defendant to satisfy a “split
bond,” that is, part personal bond “supervised by a local pre-trial services office” and part secured
bail bond backed by a surety. Letter from Honorable Susan D. Reed, Bexar County Criminal
District Attorney, to Attorney General John Comyn (Dec. 13, 1999) (on file with Opinion
Committee) [hereinafter “Request Letter”]. If Texas law permits a split bond, you ask whether a
local pretrial services office may collect a bond fee. We conclude that a magistrate may not impose
a split bond. We do not answer your second question because it assumes that a split bond may be
permissible under State law, see id., and we conclude that it is not.
You describe a split bond as having “a portion of the bond amount designated [by the
magistrate] a personal bond supervised by a local pre-trial services office, and the remaining
portion of the bond amount [is] a secured bail bond backed by a surety.” Id. Thus, in a split-bond
scenario, a bailable defendant is released upon his or her personal bond as well as remittance of a
bail bond secured by a surety. This description apparently forecloses the possibility that a defendant
may fulfill the bail bond portion of a split bond by making a cash deposit. A court must allow a
defendant, “upon execution of [a] bail bond,” to deposit with the court’s custodian of funds “current
money of the United States in the amount of the bond in lieu of having sureties signing the same.”
TEX. CODE GRIM. PROC. ANN. art. 17.02 (Vernon 1977). Consequently, a court may not require a
defendant to post a bail bond secured by a surety, thereby foreclosing the possibility that the
defendant may provide a cash deposit. For this reason, we use the term “split bond” in this opinion
to refer to a bond that is part personal bond and part bail, either a bond backed by a surety or a cash
deposit.
A magistrate temporarily may release a bailable criminal defendant upon receiving “security
given by the accused that he [or she] will appear and answer before the proper court the accusation
brought against him” or her. TEX. CODE GRIM. PROC. ANN. art. 17.01 (Vernon 1977); see
TEX. CONST. art. I, $5 11, lla (providing authority for denying bail); GEORGE E. DIX &
ROBERT 0. DAWSON, CRIMINALPRACTICE&PROCEDURE $5 16.91, .92 (40 Texas Practice 1995 &
Supp. 1999) [hereinafter “DIX& DAWSON”](stating that where constitution does not authorize denial
The Honorable Susan D. Reed - Page 2 (X-0215)
ofbail, trial court lacks authority to deny bail). This security is called “bail” and may include a cash
deposit, a bail bond, or a personal bond. TEX. CODE GRIM. PROC. ANN. art. 17.01 (Vernon 1977).
A bail bond may be secured by sureties or by a cash deposit:
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 ofhis bond, and
upon order of the court.
TEX. CODE GRIM. PROC. ANN. art. 17.02 (Vernon 1977); see id. art. 17.08 (Vernon Supp. 2000)
(setting bail-bond requirements). A court has considerable discretion in determining the amount of
bail to be required in any case, although the amount may not violate the federal or the state
constitution. See id. art. 17.15 (Vernon Supp. 2000).
While the Code of Criminal Procedure does not define the term “personal bond,” the term
“obviously means” a defendant’s personal “promise to pay a specified sum” plus necessary and
reasonable expenses incurred in locating and arresting him or her, should the defendant “fail to
appear as required.” DIXSLDAWSON, supra, 5 16.35, at 703; UnitedStates v. Stanley, 469 F.2d 576,
579 n.4 (DC. Cir. 1972); see also TEX. CODE GRIM. PROC. ANN. art. 17.03(a) (Vernon Supp. 2000)
(“a magistrate may, in the magistrate’s discretion, release the defendant on his personal bond without
sureties or other security”); id. art. 17.04 (“A personal bond is sufficient if it includes the requisites
of a bail bond, , except that no sureties are required.“). But see id. art. 17.03(b) (limiting court’s
authority to release defendant on personal bond). If, on the recommendation of a personal bond
office, see id. art. 17.42, 5 1 (permitting county or judicial district to establish personal bond office
“to gather and review information about an accused that may. [bear] on whether he will comply
with the conditions of a personal bond and report its findings to the court”), a court releases a
defendant on personal bond, the court must assess a personal bond fee of twenty dollars or three
percent of the amount of bail fixed for the defendant, whichever is greater. See id. 5 4. As a
condition of release on personal bond, a magistrate may require a defendant to “submit to home
curfew and electronic monitoring under the supervision of an agency designated by the magistrate.”
Id. art. 17.43(a). A court also may have inherent authority generally to impose other conditions that
rationally relate to the purpose of securing the defendant’s appearance before the court. See Smith
Y. State, 829 S.W.2d 885, 887 (Tex. App.-Houston [lst Dist.] 1992, pet. ref d); Dtx & DAWSON,
supra, 8 16.46; cf: DaNas v. State, 983 S.W.2d 276,277 (Tex. Crim. App. 1998) (en bane) (stating
that, absent contrary law, trial court has inherent power to impose conditions on bail pending appeal
The Honorable Susan D. Reed - Page 3 (JC-0215)
that relate to purpose of assuring defendant’s continued appearance); Estrada Y. State, 594 S.W.2d
445,446 (Tex. Crim. App. 1980) (quoting United States v. Smilh, 444 F.2d 61, 62 (8th Cir. 1971)
(per curiam), cert. denied, 405 U.S. 977 (1972)) (stating that, based upon article 44.04(c), Code of
Criminal Procedure, and court’s common-law power, court has inherent power to place restrictive
conditions upon granting of bail pending appeal).
We conclude that a magistrate may not order a bailable defendant to satisfy a split bond. A
personal bond is, by definition, incompatible with a bail bond. A defendant released on personal
bond is released “without sureties or other security.” TEX. CODE GRIM. PROC. art. 17.03(a) (Vernon
Supp. 2000). By contrast, a defendant released on bail bond must secure the bond by sureties or with
a deposit of cash. Id. art. 17.02 (Vernon 1977). A bail bond and a personal bond are distinguished
by the fact that the former requires a cash deposit to secure the defendant’s reappearance, while the
latter does not. See Stanley, 469 F.2d at 579 n.4.
As you point out, a contrary construction would lead to numerous “troublesome issues”:
[W]ould there, in effect, be two bonds requiring two different bond
forfeitures? Would the surety and the individual be considered co-
sureties, raising issues of proportionate recovery and contribution?
What ifthe surety wants off the bond-should a warrant go out for the
defendant’s arrest if the surety only secures a limited amount of the
bond? Further, sureties are responsible for all necessary and
reasonable expenses incurred in rearresting the principal in the event
he fails to appear. Should a surety be responsible for the full amount
of the expenses if the surety is only responsible for a portion of the
bond?
Request Letter, supra, at 3. Given these and other potential problems, we think it particularly wise
to construe the language of article 17.01 to preclude the imposition of a split bond.
Having concluded that a court may not release a defendant upon satisfaction of a split bond,
as you describe it, we do not reach your second question.
The Honorable Susan D. Reed - Page 4 (X-02151
SUMMARY
A court may not require abailable defendant to satisfy a “split
bond,” where “a portion of the bond amount [is] designated a
personal bond and the remaining portion of the bond amount
[is] a secured bail bond backed by a surety.”
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIh’
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee