Could a Texas magistrate require cash-only bail, accept a cash percentage instead of the full bond, or set different bail amounts for cash and surety bonds?

Texas AG Opinion JM-363: Cash-Only and Differential Bail

Plain-English summary

A Texas senator asked whether a magistrate could limit the form of bail available to an accused person. The questions concerned cash-only bail, accepting a percentage of the stated bond in cash, and setting a lower cash amount than the amount required for a surety bond. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

JM-363 concluded that a magistrate could not require an accused person to post a bail bond in cash only. It relied on articles 17.01 and 17.02 of the Code of Criminal Procedure and on two Court of Criminal Appeals decisions holding that a court could not require cash or surety to the exclusion of the other and that a cash-only bond was unauthorized. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

The opinion also concluded that a court could not set a bail bond at one amount and then accept only a lesser cash percentage in place of that amount. It expressly declined to address what conditions a magistrate could impose with a personal bond under article 17.03. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Finally, a magistrate could not set different bail amounts depending on whether the accused used cash or a surety bond. Although articles 17.01 and 17.15 gave courts broad discretion over the amount and conditions of bail, that discretion had to be exercised reasonably and did not authorize discriminatory amounts based on the form of security. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Could a magistrate order cash-only bail?

No. JM-363 concluded that article 17.02 did not allow a magistrate to demand cash to the exclusion of a surety bond. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Could the court set a bond at one amount but accept a smaller cash deposit?

No. The opinion said article 17.02 did not authorize accepting a lesser cash percentage instead of the full face amount of the bail bond. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Could the court require $1,000 in cash or a $10,000 surety bond?

No. That was the type of differential bail amount the opinion rejected; the amount could not depend on whether cash or a surety bond was used. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Did the opinion eliminate judicial discretion in setting bail?

No. It emphasized that articles 17.01 and 17.15 conferred broad discretion over bail amounts and conditions, provided that discretion was reasonably exercised. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Background and statutory framework

Article 17.01 defined bail as security given by an accused person to ensure appearance and answer the accusation, including a bail bond or personal bond. Article 17.02 authorized a written bail bond with sureties and permitted the defendant to deposit United States currency in the full amount of the bond instead of obtaining sureties. Article 17.03 authorized release on a personal bond without sureties or other security. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

The opinion relied on Ex parte Deaton, 582 S.W.2d 151, and Ex parte Rodriquez, 583 S.W.2d 792. Those decisions were cited for the propositions that a court could not require cash or surety to the exclusion of the other and that a bond requirement limited to cash was not authorized by article 17.02. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Citations and references

• Code Crim. Proc. arts. 17.01, 17.02, 17.03, 17.15, 44.04
• V.T.C.S. art. 1715
• Ex parte Deaton, 582 S.W.2d 151 (Tex. Crim. App. 1979)
• Ex parte Rodriquez, 583 S.W.2d 792 (Tex. Crim. App. 1979)
• 7 B. Wilson, Texas Criminal Forms §47.19 (Texas Practice 1977)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0363
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0363.pdf

Original opinion text

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

The Attorney General of Texas

October 22, 1985

Honorable H. Tati Santiesteban
Chairman
Natural Resources Committee
Texas State Senate
P. O. Box 12068, Capitol Station
Austin, Texas 78711

Opinion No. JM-363

Re: Authority of a judge to restrict the type of bail available to a defendant

Dear Senator Santiesteban:

You have requested our opinion regarding the authority of a magistrate to restrict the type of bail available to an accused. Article 17.01 of the Code of Criminal Procedure defines “bail” as

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. (Emphasis added).

Thus, “bail” is merely an undertaking by an accused, for the purpose of effecting his release. It can take at least two forms under the statute, a “bail bond” or a “personal bond.” These two kinds of bail do not appear to be exclusive and, given the magistrate's broad discretion in fixing bail, other forms of security may be authorized. See V.T.C.S. art. 1715.

One form of “security” specifically authorized is the bail bond described in article 17.02:

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. . . . (Emphasis added).

Another form of “security” specifically authorized is the personal bond described in article 17.03:

The court before whom the case is pending may, in its discretion, release the defendant on his personal bond without sureties or other security.

In light of these considerations, you ask:

1. May the court require a defendant to post bail in cash only?

2. May the court set the amount of bail but agree to accept a cash percentage in lieu of that amount?

3. May the court set a differential bail amount depending upon the type of bond, e.g., a cash bond of $1,000 or a surety bond of $10,000?

In Ex parte Deaton, 582 S.W.2d 151 (Tex. Crim. App. 1979), the trial court had ordered a defendant to post “a $15,000 cash bond for appeal purposes.” The Court of Criminal Appeals held that

[t]he authority granted the court in Article 44.04 to . . . ‘impose reasonable conditions on bail pending the finality of his conviction’ does not vest the court with the discretion to require a cash or surety bond to the exclusion of the other.

582 S.W.2d at 153. Likewise, in Ex parte Rodriquez, 583 S.W.2d 792 (Tex. Crim. App. 1979), the Court of Criminal Appeals said that a requirement that a bond “be posted in cash is not authorized under Article 17.02.” 583 S.W.2d at 793. We conclude that a magistrate may not require an accused to post a bail bond in cash only.

As to your second question, bail is by statute the security required by a magistrate and may include a bail bond or a personal bond. We construe your question to inquire whether a court may set a “bail bond” in a certain amount and then agree to accept a lesser percentage in lieu of the face amount of the “bail bond.” Although such practice has apparently existed in various Texas jurisdictions, see 7 B. Wilson, Texas Criminal Forms, §47.19 (Texas Practice 1977), we do not believe it is authorized by section 17.02. We offer no opinion on the conditions that a magistrate may require in conjunction with the issuance of a personal bond under section 17.03.

Finally, we believe it is clear that a magistrate may not set a “differential bail amount” depending upon whether a cash or surety bond is used. The reasoning of such cases as Deaton and Rodriquez indicates that, if a court fixes bail in the amount of $25,000, it may not, under the terms of article 17.02, require that amount if the bail is satisfied by surety bond, but accept a lesser amount if the bail is satisfied by cash. We emphasize, however, that articles 17.01 and 17.15 confer upon a court broad discretion, so long as it is reasonably exercised, in setting bail.

SUMMARY

A magistrate has broad discretion in setting the amount and conditions of bail which an accused must satisfy to obtain his release. He may not, however, require an accused to post bail in cash only, nor may he set a differential bail bond amount depending upon whether a cash or surety bond is given.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Sarah Woelk