Can a Texas sheriff accept a bail bond when the accused is jailed in another state?

TX AG Opinion GA-0515: Can a Texas sheriff accept bail when the accused is jailed in another state?

Plain-English summary

The Limestone County and District Attorney described a situation that comes up when a defendant is arrested outside Texas. The Limestone County District Clerk had issued a capias (an arrest writ) tied to a motion to revoke someone's probation. That person was arrested in Kansas on the Limestone County warrant, which already carried a bail amount. A licensed Limestone County bondsman then went to the Limestone County Sheriff and tried to post a bond for the accused on the Limestone County charge while she was still sitting in a Kansas jail. The District Attorney asked whether the sheriff could accept that bail.

The opinion concluded the sheriff could not. The provisions of the Code of Criminal Procedure that let a sheriff take a bail bond (chapter 17, articles 17.20 through 17.22, and chapter 23, articles 23.10, 23.11, and 23.14) each require the accused to be in the sheriff's custody, meaning under the sheriff's physical control. A person held in an out-of-state jail is not in the Limestone County Sheriff's custody and is not in custody in the county where the prosecution is pending, so none of those statutes gave the sheriff authority to accept the bond.

The opinion also drew a line between two different questions. Whether a Texas bail bond surety can post bail set by another state's judge for someone awaiting extradition to Texas is governed by that other state's law, not Texas law. But whether the Texas sheriff may accept a bond for the Texas offense while the accused is jailed elsewhere is a Texas-law question, and the answer was no.

Currency note

This opinion was issued in 2007. 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.

The bail provisions in chapters 15, 17, and 23 of the Code of Criminal Procedure and the bail-bond-surety licensing rules in Occupations Code chapter 1704 have been amended since 2007. Anyone dealing with an out-of-state arrest on a Texas charge today should check the current statutes rather than relying on the 2005-2006 versions cited here.

Who this opinion affected (as of 2007)

County sheriffs: The opinion told sheriffs they had no authority to accept a bail bond for an offense committed in their county if the accused was jailed in another state, because the custody requirement in chapters 17 and 23 was not met.

Bail bond sureties and bondsmen: The opinion explained that a Limestone County bail bond license authorized a surety to act in Limestone County but not outside it, and that whether a surety could post bail in the state holding the accused was a question for that state's law.

Defendants arrested out of state on Texas charges: The opinion meant a defendant in this position could not get released by having a bondsman post the Texas bond with the Texas sheriff; the path ran through the law of the state where the person was being held and the extradition process.

Common questions

Can a Texas sheriff take a bail bond for someone held in another state's jail?
No. The opinion concluded the sheriff has no authority to accept bail for a county offense when the accused is jailed in another state, because every statute authorizing a sheriff to take bail requires the accused to be in the sheriff's custody.

Why does custody matter so much here?
The opinion explained that articles 17.20, 17.21, 17.22, 23.10, 23.11, and 23.14 all key the sheriff's authority to the accused being "in custody" of the sheriff or arresting officer. Someone in an out-of-state jail is not under the Texas sheriff's control.

Does the bondsman's Limestone County license work across state lines?
The opinion said a license issued under Occupations Code chapter 1704 authorizes a person to act as a bail bond surety in that county, not outside it. Whether a surety can post bail in the state holding the accused is governed by that state's law.

So how does someone arrested out of state on a Texas charge get released?
The opinion did not lay out the full extradition process, but it pointed out that whether bail set by another state's judge can be made for a person awaiting extradition to Texas is a matter of that other state's law (citing Kansas's criminal procedure statutes as an example).

Background and statutory framework

Bail is the security an accused gives that he will appear and answer the accusation against him, and a bail bond is the written promise by the defendant and his sureties to the state, secured by an amount set by a judge, magistrate, or in some circumstances a peace officer (Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 2005); id. arts. 17.02, .05, .08, .11, .15). A capias is a writ directing any peace officer to arrest the accused and bring him before the court, and Texas case law treats a capias and a warrant interchangeably in probation-revocation cases and for Fourth Amendment purposes (Tex. Code Crim. Proc. Ann. art. 23.01 (Vernon 1989); art. 23.12 (Vernon 1989); Ballard v. State, 33 S.W.3d 463, 466 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd)).

In a bail bond board county, licensing of sureties is governed by Occupations Code chapter 1704; a license authorizes a person to act as surety in that county but not outside it, though a defendant's attorney may act as surety without a license in any county (Tex. Occ. Code Ann. ch. 1704 (Vernon 2004 & Supp. 2006); § 1704.151 (Vernon 2004); § 1704.163 (Vernon Supp. 2006)). Whether a surety may provide bail set by another state's judge for a person awaiting extradition to Texas is a matter of that state's law (Kan. Crim. Proc. Code Ann. §§ 22-2716, 22-2802, 22-2806 (West 1995)).

Chapter 17 sets out the provisions for granting bail for a person accused of an offense in Texas, including the sheriff's authority to accept bail in misdemeanor and felony cases, but each provision requires the accused to be in the sheriff's custody (Tex. Code Crim. Proc. Ann. ch. 17 (Vernon 2005 & Supp. 2006); arts. 17.20-.22 (Vernon 2005); art. 17.20; art. 17.21; art. 17.22). Custody means the person is under the officer's control (arts. 15.01, 15.17 (Vernon Supp. 2006); art. 15.22 (Vernon 2005)). Chapter 23 likewise authorizes the arresting officer or sheriff to accept bail, but only contingent on an actual arrest placing the accused under restraint (arts. 23.10, 23.11, 23.14 (Vernon 1989)). Because the Limestone County Sheriff did not have custody of a person jailed in another state, neither chapter gave authority to accept the bond.

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 2005); arts. 17.02, .05, .08, .11, .15
• Tex. Code Crim. Proc. Ann. ch. 17 (Vernon 2005 & Supp. 2006); arts. 17.20-.22, 17.20, 17.21, 17.22
• Tex. Code Crim. Proc. Ann. arts. 15.01, 15.17 (Vernon Supp. 2006); art. 15.22 (Vernon 2005)
• Tex. Code Crim. Proc. Ann. arts. 23.01, 23.12 (Vernon 1989); arts. 23.10, 23.11, 23.14 (Vernon 1989)
• Tex. Occ. Code Ann. ch. 1704 (Vernon 2004 & Supp. 2006); § 1704.151 (Vernon 2004); § 1704.163 (Vernon Supp. 2006)
• Kan. Crim. Proc. Code Ann. §§ 22-2716, 22-2802, 22-2806 (West 1995)

Cases:

• Ballard v. State, 33 S.W.3d 463, 466 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0515
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0515.pdf

Original opinion text

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

GREG ABBOTT

February 12, 2007

The Honorable Roy DeFriend
Limestone County and District Attorney
Limestone County Courthouse
200 West State Street, Suite 110
Groesbeck, Texas 76642

Opinion No. GA-0515

Re: Whether a bail bond may be accepted in a Texas county for a person jailed in another state (RQ-0512-GA)

Dear Mr. DeFriend:

You ask whether bail may be made in Limestone County to secure the release of a person held in an out-of-state jail on an offense committed in Limestone County.[1] "'Bail' is the security given by the accused that he will appear and answer before the proper court the accusation brought against him . . . ." TEX. CODE CRIM. PROC. ANN. art. 17.01 (Vernon 2005). A "bail bond" is a written promise by the defendant and his sureties to the state that the defendant will appear before a court or magistrate to answer a criminal accusation, secured by an amount of money set by a judge, a magistrate, or under some circumstances a peace officer. See id. arts. 17.02, .05, .08, .11, .15.

Your question arises from a situation described by the Limestone County Sheriff. The Limestone County District Clerk issued a capias in connection with a motion to revoke an individual's probation.[2] A "capias" is defined as "a writ issued by the court or clerk, and directed 'To any peace officer of the State of Texas', commanding him to arrest a person accused of an offense and bring him before that court." Id. art. 23.01 (Vernon 1989). See Ballard v. State, 33 S.W.3d 463, 466 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) (stating that Texas case law tends to treat a capias and a warrant interchangeably in probation revocation cases and for Fourth Amendment purposes). The individual was arrested in Kansas pursuant to the Limestone County warrant. See Request Letter, supra note 1, at 1. The warrant contained the bail amount, and a licensed Limestone County bondsman went to the Limestone County Sheriff and sought to make a bond for the accused on the Limestone County charge while she was in a Kansas jail.[3] See TEX. CODE CRIM. PROC. ANN. art. 23.12 (Vernon 1989) (in bailable felony cases, the court fixes the amount of bail, and the clerk endorses this amount on the capias).

You inform us that Limestone County "is a bail bond board county." See Request Letter, supra note 1, at 1. Thus, the licensing of bail bond sureties in your county is governed by Occupations Code chapter 1704. See TEX. OCC. CODE ANN. ch. 1704 (Vernon 2004 & Supp. 2006). A license issued by the Limestone County Bail Bond Board pursuant to Occupations Code chapter 1704 authorizes a person to act as a bail bond surety in Limestone County but not outside of the county. See TEX. OCC. CODE ANN. § 1704.151 (Vernon 2004); Tex. Att'y Gen. Op. Nos. GA-0002 (2002) at 1, DM-59 (1991) at 2; see also TEX. OCC. CODE ANN. § 1704.163 (Vernon Supp. 2006) (attorney for defendant may act as surety for defendant without a bail bond license in any county in the state). Whether a particular bail bond surety may provide bail set by the judge or magistrate of another state for a person awaiting extradition to Texas is a matter of that state's law. See, e.g., KAN. CRIM. PROC. CODE ANN. §§ 22-2716, 22-2802, 22-2806 (West 1995).

Texas law, however, will determine whether the Limestone County Sheriff may accept a bond for a Limestone County offense while the accused is jailed in another state. Chapter 17 of the Texas Code of Criminal Procedure sets out the provisions for granting bail for a person accused of committing an offense in Texas, and these include provisions authorizing a sheriff to accept bail. See TEX. CODE CRIM. PROC. ANN. ch. 17 (Vernon 2005 & Supp. 2006), id. arts. 17.20-.22 (Vernon 2005). Article 17.20 provides that the sheriff, "where he has a defendant in custody," may take a bail bond of the defendant in cases of misdemeanor, whether it is during the term of the court or in vacation. Id. art. 17.20 (Vernon 2005). Article 17.21 allows a sheriff to accept a bail bond in a felony case:

In cases of felony, when the accused is in custody of the sheriff or other peace officer, and the court before which the prosecution is pending is in session in the county where the accused is in custody, the court shall fix the amount of bail, if it is a bailable case and determine if the accused is eligible for a personal bond; and the sheriff . . . is authorized to take a bail bond of the accused in the amount as fixed by the court, to be approved by such officer taking the same, and will thereupon discharge the accused from custody. It shall not be necessary for the defendant or his sureties to appear in court.

Id. art. 17.21. If the court in a felony case is not in session in the county where the defendant is in custody, article 17.22 provides that "the sheriff . . . having [the defendant] in custody, may take his bail bond in such amount as may have been fixed by the court or magistrate, or if no amount has been fixed, then in such amount as such officer may consider reasonable." Id. art. 17.22.

Each of these provisions authorizing the sheriff to accept bail requires the accused to be in the sheriff's custody. Under the Code of Criminal Procedure, a person in the sheriff's custody is under his control. See id. arts. 15.01 ("warrant of arrest" directs a peace officer to "take the body of the person accused of an offense"); 15.17 (Vernon Supp. 2006) (person having custody of arrested person shall take the person before a magistrate). Pursuant to article 17.21, "the court before which the prosecution is pending" shall fix the amount of bail if the court "is in session in the county where the accused is in custody." Id. art. 17.21 (Vernon 2005). A person jailed in another state is not in the Limestone County Sheriff's custody, nor is the person in custody in the county where the prosecution is pending. Thus, chapter 17 provides no authority for the Limestone County Sheriff to accept bail for an offense committed in Limestone County while the accused is jailed in another state.

Provisions in chapter 23 of the Code of Criminal Procedure authorize the arresting officer or the sheriff to accept bail. See id. arts. 23.10 (arrest for a felony in the county where the prosecution is pending during a term of court); 23.11 (arrest for a felony in another county or when the court is in vacation); 23.14 (arrest under capias in a misdemeanor) (Vernon 1989). The authority granted by these provisions is, however, contingent on an "arrest," whereby the arresting officer has placed the accused under restraint or taken custody of him. See id. art. 15.22 (Vernon 2005) (defining "arrest"). Article 23.01, which requires a peace officer "to arrest a person . . . and bring him before [the] court" demonstrates that the officer must have physical control of the person. Id. art. 23.01 (Vernon 1989). The Limestone County Sheriff does not have custody of a person jailed in another state and accordingly has no authority to accept bail under chapter 23.

We conclude that the Limestone County Sheriff has no authority to accept bail for an offense committed in Limestone County while the accused was jailed in another state.

SUMMARY

A Texas sheriff has no authority to accept bail for an offense committed in the sheriff's county if the accused is jailed in another state.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Roy DeFriend, Limestone County and District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (July 18, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Telephone Conversation with Roy DeFriend, Limestone County and District Attorney (Nov. 1, 2006).

[3] Telephone Conversation with Roy DeFriend, Limestone County and District Attorney (Oct. 30, 2006).