Can a Texas county pre-trial services office hold a defendant's property as security for a personal bond?

Texas AG Opinion DM-0073: Pre-Trial Services and Custody of Personal-Bond Property

Plain-English summary

The Harris County Attorney asked whether the county's Pre-Trial Services Agency could hold personal property that a magistrate required from a defendant as security for a personal bond. He explained that Harris County magistrates sometimes released defendants on personal bond but added conditions, asking them to surrender items like jewelry, motor vehicle titles and license plates, and stock certificates in closely held corporations. The Attorney General concluded the agency had no authority to hold that property.

Chapter 17 of the Code of Criminal Procedure governs bail and pre-trial release. A magistrate may release a defendant on a personal bond without sureties or other security under article 17.03, and article 17.04 sets out what a personal bond must contain, including the requisites of a bail bond under article 17.08 (minus the sureties) plus detailed defendant information and a sworn promise to appear or pay. The pre-trial services agency itself was established under article 17.42, which says a county may set up a personal bond office "to gather and review information about an accused that may have a bearing on whether he will comply with the conditions of a personal bond and report its findings to the court." The opinion read that as the office's defining and limiting purpose: collect information and report it to the court. It found no provision authorizing personal bond offices to hold or store property, and concluded that authority could not be implied from the information-gathering function.

The opinion addressed the brief's reliance on an older civil statute, explaining that the statute the brief cited as the predecessor was not actually the predecessor to article 17.42 and dealt with non-public entities providing counsel to indigent defendants, not personal bond offices. The actual predecessor, like article 17.42, described the office's purpose only as gathering and reviewing information and reporting to the court. The opinion also said that even if the office monitors a released defendant, that responsibility does not impliedly authorize it to store the defendant's property. Having answered the first question no, the opinion expressly did not reach the second question about how such property should be handled. The opinion limited itself to chapter 17 and noted it was not addressing duties imposed on the agency by a federal court order in ongoing litigation.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The bail and personal bond provisions in chapter 17 of the Code of Criminal Procedure, including article 17.42, have been amended since 1992. Verify current law before relying on anything here.

Common questions

Could the Harris County Pre-Trial Services Agency hold a defendant's property as bond security?
No, under this 1992 opinion. The opinion concluded chapter 17 did not authorize a personal bond office to hold or store personal property a magistrate required as security on a personal bond.

What is a personal bond office actually authorized to do?
Under article 17.42, it gathers and reviews information about a defendant bearing on whether the defendant will comply with bond conditions, and reports its findings to the court. The opinion treated that information role as the limit of the office's statutory authority.

Did the opinion say magistrates could not require property as security?
No. The opinion assumed for its purposes that magistrates were authorized to require security when releasing defendants on personal bond. The question it answered was only whether the pre-trial services agency could hold that property, not whether the magistrate could order it.

Did the opinion address how the agency should handle any property it received?
No. Because it concluded the agency had no authority to hold the property in the first place, it expressly declined to reach the second question about handling.

Background and statutory framework

Chapter 17 of the Code of Criminal Procedure sets the procedures for bail and pre-trial release. Article 17.03 lets a magistrate, in the magistrate's discretion, release a defendant on personal bond without sureties or other security; article 17.04 lists the requisites of a personal bond, incorporating the bail bond requisites of article 17.08 without the sureties. Article 17.42 authorizes a county to establish a personal bond office "to gather and review information about an accused that may have a bearing on whether he will comply with the conditions of a personal bond and report its findings to the court before which the case is pending." The opinion compared the brief's cited civil statute (a former V.T.C.S. article the brief treated as the predecessor) with the actual predecessor civil statute, concluding the brief had cited the wrong provision and that the real predecessor described the same information-gathering purpose. The opinion noted that the Harris County Pre-Trial Services Agency had been the subject of protracted federal litigation, and that it was addressing only chapter 17 authority, not any duties imposed by federal court order.

Citations

Statutory provisions:

• Code Crim. Proc. art. 17.03 (release on personal bond without sureties)
• Code Crim. Proc. art. 17.04 (requisites of a personal bond)
• Code Crim. Proc. art. 17.08 (requisites of a bail bond)
• Code Crim. Proc. art. 17.42 (county personal bond office; gather and report information)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0073
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0073.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

January 15, 1992

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77092-1891

Opinion No. DM-73

Re: Whether a county pre-trial services agency is authorized under chapter 17 of the Code of Criminal Procedure to hold personal property as additional security for personal bond if additional security is ordered by the district court, and, if so, where such personal property should be held (RQ-193)

Dear Mr. Driscoll:

You ask whether the Harris County Pre-Trial Services Agency[1] (the "pre-trial services agency") is authorized under chapter 17 of the Code of Criminal Procedure to hold personal property as security for a personal bond when the security is ordered by the district court. If the pre-trial services agency is permitted to do so, you also ask us to address how the pre-trial services agency should handle such property.

Chapter 17 of the Code of Criminal Procedure sets forth various procedures and requirements for setting bail to allow the pre-trial release of criminal defendants while ensuring their presence at trial. Although the bail bond is the traditional vehicle for achieving this goal, article 17.03 of the Code of Criminal Procedure provides that "a magistrate may, in the magistrate's discretion, release the defendant on his personal bond without sureties or other security." Article 17.04 sets forth the requisites of a personal bond. "A personal bond is sufficient if it includes the requisites of a bail bond as set out in Article 17.08, except that no sureties are required." Code Crim. Proc. art. 17.04. In addition, a personal bond must include detailed information about the defendant, and an oath sworn and signed by the defendant that he or she will appear at trial or pay the court a predetermined sum and reasonable expenses incurred in his or her arrest for failure to appear. Id.

The brief submitted with your request suggests that on occasion magistrates in Harris County release defendants on personal bond but impose conditions in addition to those set forth in article 17.04, requiring defendants to surrender personal property such as jewelry, motor vehicle titles and license plates, and stock certificates in closely-held corporations as security.[2] As a result of this practice, you ask whether the pre-trial services agency is permitted by law to hold such personal property. Upon examination of the code provisions establishing the pre-trial services agency, we conclude that it is not permitted to do so.

The pre-trial services agency was established pursuant to article 17.42 of the Code of Criminal Procedure. Section 1 of that article provides that "[a]ny county . . . may establish a personal bond office to gather and review information about an accused that may have a bearing on whether he will comply with the conditions of a personal bond and report its findings to the court before which the case is pending." Code Crim. Proc. art. 17.42, § 1. It is evident from this provision that the purpose of the pre-trial services agency, like any personal bond office, is to gather information about defendants and to present that information to the court. We are not aware of any provision authorizing personal bond offices to hold or store personal property, nor is this authority implied from personal bond offices' express statutory authority in section 1 of article 17.42.[3] Therefore, we must conclude that chapter 17 of the Code of Criminal Procedure does not authorize personal bond offices, including the pre-trial services agency, to hold or store personal property.[4]

SUMMARY

Chapter 17 of the Code of Criminal Procedure does not authorize the Harris County Pre-Trial Services Agency, a personal bond office created pursuant to article 17.42 of the code, to hold or store personal property required by a magistrate as security on a personal bond.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] We note that the Harris County Pre-Trial Services Agency has been the subject of protracted litigation and numerous orders in a federal district court proceeding, Alberti v. Sheriff of Harris County, Civil Action No. 72-H-1094, United States District Court for the Southern District of Texas, Houston Division. In this opinion, we address the authority of the Harris County Pre-Trial Services Agency only in terms of chapter 17 of the Code of Criminal Procedure. We do not address any additional duties that may be imposed upon it by federal court order.

[2] The brief submitted with your request implies that magistrates are not authorized to require such security when releasing a defendant on personal bond. You have not asked us to address this question, however. We assume for purposes of this opinion that magistrates are authorized to require security when releasing defendants on personal bond.

[3] The brief submitted with your request quotes language in former article 2372p-1, V.T.C.S., which it contends is the predecessor statute to article 17.42 of the Code of Criminal Procedure, charging certain entities with "assur[ing] the judge of the court that such entity will assist in securing the presence of the accused at his trial," V.T.C.S. art. 2372p-1, § 3, and suggests that this language is relevant to the authority of personal bond offices. The foregoing provision, however, is not the predecessor statute to article 17.42, and does not deal with personal bond offices. Rather, it deals with non-public entities established to provide counsel to indigent defendants. Furthermore, the actual predecessor statute, V.T.C.S. art. 2372p-2, like article 17.42, merely states that the purpose of personal bond offices is "to gather and review information about an accused that may have a bearing on whether he will comply with the conditions of a personal bond and report its findings to the court before which the case is pending." Acts 1973, 63d Leg., ch. 352, § 1, at 788. The brief also asserts, without citation, that "[f]rom a review of the applicable statutes, it would appear that the personal bond office continues to monitor the defendant, who is released on a personal bond, during the pendency of his court proceedings." Assuming that this is indeed the case, we do not believe that the responsibility of monitoring defendants impliedly authorizes personal bond offices to store defendants' personal property.

[4] Because we have answered your first question in the negative, we do not address your second question regarding how the pre-trial services agency should handle personal property surrendered as security for release on personal bond.