Who held cash bail paid to a Texas municipal court before the bond was forfeited or returned?
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This page answers the general question as of 1986. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-461: Custody of Municipal Court Cash Bail
Plain-English summary
Patton Village and a municipal judge disagreed about who should hold cash deposited as bail before forfeiture. The city argued for its treasurer under article 1001, while the judge relied on the Code of Criminal Procedure. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
JM-461 said article 17.02 controlled because it directed defendants to deposit cash with "the custodian of funds of the court in which the prosecution is pending." No statute named the custodian for a municipal court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
The city council could designate the custodian under its article 45.06 authority to adopt municipal-court practice and procedure rules. It could select the city treasurer, but the custodian could not treat the bail as city money. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Currency note
This opinion was issued in 1986. 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
Did the city treasurer automatically hold municipal cash bail?
No. JM-461 said article 1001 did not control because cash bail was governed by the Code of Criminal Procedure. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Could the city council appoint the treasurer as custodian?
Yes. The opinion concluded that article 45.06 gave the city's governing body enough authority to designate the municipal court's custodian of funds, including the city treasurer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Did the cash bail belong to the city while it was held?
No. JM-461 stated, "The money does not belong to the city." It had to be returned to the defendant upon compliance with the bond conditions unless it was lawfully forfeited. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Background and statutory framework
Code Crim. Proc. art. 17.38 made the bail rules applicable whenever bail was taken from a person accused of an offense. Code Crim. Proc. art. 17.02 allowed a defendant to deposit cash with the court's fund custodian instead of obtaining sureties on the bond. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Article 45.06 allowed a city's governing body to adopt municipal-court practice and procedure rules that did not conflict with state law. JM-461 read that authority to include selecting the person who held municipal-court funds. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Citations and references
- article 1001, V.T.C.S.
- Code of Criminal Procedure articles 17.02, 17.38, and 45.06
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0461
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0461.pdf
Original opinion text
Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
March 31, 1986
Honorable James R. Keeshan
District Attorney
Montgomery County Courthouse
Conroe, Texas 77301
Opinion No. JM-461
Re: Proper custodian of recognizances and bail bonds collected by a municipal judge prior to forfeitures
Dear Mr. Keeshan:
You ask about the disposition of money received as a bail bond by a municipal judge. You want to know who is the proper custodian of a cash bond before forfeiture.
The city of Patton Village argues that a cash bond should be deposited with the city treasurer. The city bases its argument on article 1001, V.T.C.S., which provides:
The treasurer shall give bond in favor of the city in such amount, and in such form as the city council may require, with sufficient security to be approved by the city council, conditioned for the faithful discharge of his duties. He shall receive and securely keep all moneys belonging to the city, and make all payments for the same upon the order of the mayor, attested by the secretary under the seal of the corporation. No order shall be paid unless the said order shall show upon its face that the city council has directed its issuance, and for what purpose. He shall render a full and correct statement of his receipts and payments to the city council, at their first regular meeting in every quarter and whensoever, at other times, he may be required by them so to do. He shall do and perform such other acts and duties as the city council may require. He shall receive such compensation as the city council shall fix. (Emphasis added).
A municipal judge, on the other hand, argues that the disposition of a cash bond deposited with the court is governed by article 17.02 of the Code of Criminal Procedure.
The rules set out in the Code of Criminal Procedure regarding bail are applicable in all instances in which bail is taken of a person accused of an offense. Code Crim. Proc. art. 17.38. The Code of Criminal Procedure provides that upon execution of a bail bond a defendant 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" instead of having sureties sign the bond. Code Crim. Proc. art. 17.02. Therefore, article 17.02 controls the disposition of any bond.
Although article 1001 does not control this question, we do think that the city treasurer could be made the custodian of funds for the municipal court. We find no statute that designates the custodian of funds for a municipal court. There is a statute, however, that allows the governing body of a city to adopt "rules and regulations concerning the practice and procedure" in a municipal court. Code Crim. Proc. art. 45.06. We think that this statute grants a city broad enough power to designate who shall act as custodian of the funds for the municipal court. We note, though, that the custodian of the funds is not free to dispose of the money. The money does not belong to the city. It must be returned to the defendant upon his compliance with the conditions of his bond. Code Crim. Proc. art. 17.02.
SUMMARY
The custodian of funds for the municipal court is the proper custodian for funds received by the municipal court to be held as a bail bond. The governing body of a city has authority to designate the custodian of funds for a municipal court pursuant to article 45.06 of the Code of Criminal Procedure.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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