Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAlTOX December 27, 1984 , torney General ! pmmscowl Building Eouorable Patrick J. Ili.dley opinion No. JN-271 Io.soxl2549 Bell County Attorney *uslln, lx. 7S711- 2549 P. 0. Box 474 Re: Whether e sheriff must 512l4752501 Belton. Texas 76513 accept a bail bond to obtain 1 ex 9101874-1397 1 ecqder 512N73.0299 the release of (I person held on a warrant or caplas issued In another county i I Jacke.qn. Suite 700 I IISS, lx. 75202-4!x9 Dear Ur. Rldley: 2 14n42a944 You inform us that a problem is presented in the application of ‘ ?4 Albsrh Am, SUIIS IO article 2372p-3. sect:lon 14(a). vhen a person is arrested and charged El Paso. lx. 799052793 with s crininsl violation occurring in one county, and, while he is in 915i333aa detention, it is discovered that a capias or a warrant has been issued on that Individual by rmother county. The accused offers to post bail 1001 TSXSS. suite 700 bonds on all criminal offenses through a bail bondsmen licensed by the Houston, TX. 77092-3111 bail bond board In the county in vhich the accused vas arrested, but 1 la23-5595 not licensed in the clxmty in which it Is discwcred thst a cepias or a verrant hae been lenucd. 909 Sr.xdway. Suite 312 1 >bock.TX. 794015479 In that regard you ask: E v747.5239 Pursusnt to Vernon’s Civ. Ann. St. Art. 2372p-3, sec. 14(a), 1s s sheriff in the county of arreat ( R N. Tsnlh. Suile B I Alh. lx. 79591.1995 required to sccept s bail bond from a bondsmen 5121682.4547 licensed In the county of arrest. when that bond ia offered to obtein the release of the arrested person who :.(I held on a warrant [or capiaa] issued ; ) MSh Plazs, SUllS 4w lo a county other then the one in which the person Ssn Antonio. TX. 781052797 vaa arrested? 51212254191 We conclude that article 2372p-3, section 14(a), V.T.C.S., requires a An Equal Opporlunllyl sheriff in the count:r of arrest to accept and approve a bail bond Allirm4ilve Acllon Employor offered by a bail bondsman licensed in the county of arrest to obtein the release of the dlccused who is being held on en out-of-county capias or warrant. This construction of article 2372p-3, section 14Ws does not conflict with other provisions of the Texas Code of Criminal Procedure and is consistent with the intent and purpose of the Ball Bondsman Act, Article 2372p-3. section 14(e) provides: lionorsble Patrick J. Ridley - PaRc 2 (JH-271) Sec. 14. (a) In my county or district cese in vhich the posting of bonds Is required 88 e condition of release, !:he sherfff shell accept or approve e bond poated_),y a licensed bondsman only in accordance with this Act end the rules prescribed by the bo,;rd, but e sheriff may not refuse to accept a 6~11 bond from a licensed bondsman who meets thtiyrequirements of Subdivision (4) or (5) of Subaect Fm (a) of Section 6 of this -Act. Id. (Rmphasis added). In 1973, the Sixty-third I.oglslature declared that the business of executing bail bonds we8 e business effecting the public interest, end, es 8 result, the Bail Bondsman Act we8 enacted. V.T.C.S. art. 2372p-3. The Supreme Court of Texas upheld the constitutionality of the act In 1974. See Robinson ‘v. Hill, SO7 S.W.2d 521 (Tex. 1974). The ect has been emaed three lrj.mes in order to effectuate the intent of the legislature, which is to preserves the constitutional right to bail ‘end to provide practical procedures governing the giving or making of bail bond end other security to guarantee the appearnnce of the eccused. -See V.T.C.S. art. :!372p-3, 51 as emended. As e preliminary considerr~tion, article 2372p-3. section 14(a). V.T.C.S.. does not regulate the “taking of bail”; it merely prescribes the procedure whereby .a sheriff shall accept or approve a bond posted by a licensed bondsman. Id. The Court of Criminal Appeals has adopted this office’s interp~;ttlon of the concept “take” or “taking” bond to mean the regulation of the amount of bail to be posted by the accused. See Rokr v. State. Ii45 S.W.2d 463 (Tex. Crlm. App. 1977) (adopting Attorney General Opinion R-856 (1976)) interpreting article 17.20 of the Code of Criminal Procedure). We agree that this construction should also be spp,l:Led when it is referenced elsewhere in the Code of Criminal Procedurlr. See Code Crim. Proc. erts. 15.18 (arrest for out-of-county offense),T.OS (when bail is given). 17.22 (bail in felony cases), 23.11 (sheriff may take bail in felony case). 23.12 (court shell fix bail fr felony), 23.14 (bail in misdemeanor cases), 23.17 (return of bail ard capias). We believe that erticle 2372p-3. section 14(a). V.T.C.S.. is mandatory because it prescribes the circumstances by which a public officer shell perform his statutory duty. See State V. Fox. 133 S.W.2d 987 (Tex. Clv. App. - ,Austin 1939. vx ref’d); Sutherland stat. Construe. 557.14 (4th ea.). Thus, a sheriff is required to accept or approve a bond posted by a bondsman licensed in accordance with the Bail Bondsman Act and the rules prescribed by the county bail bondsman board. The sheriff i,; also required to accept or approve a bond posted by a licensed bail bondsman who has furnished the county P. :.:109 Honoreble Petrfck J. Ridlay - I?nge 3 (JM-271) beil bond board with lnformeti~l~ regarding security for the peyment of bell bonds in the form of a sworn epplication. See V.T.C.S. ert. 2372p-3. sec. 14(e); V.T.C.S. art. 2372p-3, sec. 6TThe mandate is especielly appllceble when the bondsman is licensed in the county of errest beceuae the sheriff hat; the necessary financiel information to determine whether there will be sufficient security to lneure the presence of the eccused. In regsrd to your first question, there is no apparent conflict between article 15.18 of the Code of Criminal Procedure end section 14(e) of article 2372~3. lwtlcle 15.18 of the Code of Criminal Procedure provides: One arrested undel a warrant issued in a county other then the one in which the person is arrested shell be taken before e magistrate of the county where the errest takes place who shell take bail. if allwed by lev. and immediately transmit the bond taken to- the ccurt having jurisdiction of the offense. -Id. (Emphasis added). Thus, if the sccused 11; srrested under a werrent Issued in a county other then the one In ,s!hich he was errested, the accused shell be tsken before a. local magistrate “vho shell take bail, if sllwed by lev, end Immediately transmit the bond taken to the court. . . .” See Lyle6 v. State, 653 S.U.Zd 775 (Tex. Grim. App. 1983) (Clinton. J.. concurring, p. 780. n. 2). Likewise, the Texas Court of Criminal Appeals held that article H.18 is e procedural mandate by the legislature for one arrested under a werrant Issued in another county. See Gent V. State. 649 S.W.2d 30 (Tex. Grim. App. 1983). cert. denied, 104 s. ct. 122 (1983). The sheriff’s duty to accept bond under article 2372p-3. section 14(a). V.T.C.S.. remains. Th! magistrate regulates the amount of bail end the sheriff is then required to allow the accused the right to post bond. If the bond Is powed by a bondsman licensed in the county of errest. section 14(a) requfces the sheriff to accept or approve the bond so long es the licensed b,ondsman has complied with the provisions of the Bail Bondsman Act. Once the bond is posted on the out-of-county warrant, the accused should be released from the custody of the sheriff, end the bond is then transmitted to the court having jurisdiction in the county where the werrant was issued. -See Code of Crim. Proc. ert. 15.18. In regard to your second question, the sheriff is again required to accept or approve a bond posted by a licensed bondsman if the accused has been detained on an out-of-county capias. V.T.C.S. ert. Honorable PAtriCk J. Ridley - Pc,g,e 4 (J~-271) 2372p-3. SeC. l&(A). The CApiAll iA A comnd t0 Any PeACe Officer Of the State of Texas to ArreAt the named accused and bring him before the court at A time prescribed therein. See Code Cria. Proc. arts. 23.01, 23.02. A CAP~AA may be issuedin either A felony or misdemeanor case. See Code Crlm. Proc. arts. 23.03. 23.04. In certein instances thzheriff lnay regulate the amount of bail to be posted by the Accused. See Code Grim. Proc. arts. 23.11. 23.14. Article 23.17, Code of Canal Procedure, provides that “when An arrest has been made and A bail taken, such bond, together with the CApiAA, shall be returned fc~rthwith to the proper court.” Id. Therefore. the sheriff is still required to comply with the mandat;;?; IAnpage of article 23?2p-3, section 14(a). V.T.C.S.. and accept or approve bail posted by A bai:. bondsman licensed in the county of Arrest. We believe that this c~x~struction of article 2372p-3, section 14(A). will not frustrate the pl’rpose of the Bail Bondsman Act. S IJMMARY -- Article 2372p-3, section 14 (A), V.T.C.S., requires A sheriff i:~ the county of arrest to accept and approve A bail bond offered by A bail bondsman licensed fn the county of arrest to obtain the release of the accused who is being held on an out-of-county caplas or warrant. &Ig”~?l& Attorney General of Texas TOMGREEN First Assistant Attorney Generd DAVID R. RICHARDS Executive Assistant Attorney G(!rlerAl RICK GILPIN Chairman. Opinion Coaunlttee Prepared by Tony Guillory Assistant Attorney General p. 1211 n Honorable Patrick J. Ridley - Ps.ge 5 (JH-2713 APPROVED: OPINIONCOMMITTEE Rick Gilpin. Chainnan Jon Bible Colin Carl Tony Guillory Jim noellinger Jennifer Riggs Nancy Sutton r. 1212