Could a Texas peace officer release a person charged with a misdemeanor on a personal bond without a judge or magistrate's approval?

Texas AG Opinion JM-760: Who Could Grant a Personal Bond?

Plain-English summary

The Trinity County Attorney asked whether a peace officer could independently release a misdemeanor defendant on a personal bond. The request did not concern traffic cases, where an arresting officer could use a separate written promise to appear.

The Attorney General concluded that a peace officer could not grant a personal bond without authorization from a court or magistrate.

Chapter 17 of the Code of Criminal Procedure allowed peace officers to take bail bonds in specified misdemeanor and felony situations. A bail bond involved the statutory bond process and, ordinarily, sureties or security.

A personal bond was different. Articles 17.03 and 17.031 assigned the discretionary decision to the court before which the case was pending or to a magistrate. A peace officer could carry out the resulting release but could not make the personal-bond decision alone.

Currency note

This opinion was issued in 1987. 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

What was the difference between a bail bond and a personal bond?

The opinion described a personal bond as a bond without sureties or other security, containing the defendant's identifying information and sworn promise to appear. Peace officers had separate statutory authority to take bail bonds.

Could a peace officer take a bail bond in a misdemeanor case?

Yes. Article 17.20 allowed a sheriff or other peace officer with a misdemeanor defendant in custody to take a bail bond.

Who could decide to release a defendant on personal bond?

The court before which the case was pending or a magistrate, under articles 17.03 and 17.031.

Did the rule apply to ordinary traffic citations?

The opinion excluded misdemeanor traffic cases from its main analysis. It noted that an arresting officer could release a person after obtaining a written promise to appear under article 6701d, section 148.

Was personal-bond release automatic?

No. Ex Parte Trillo treated the decision as discretionary and recognized that a personal bond would not be appropriate in every case.

Background and statutory framework

Articles 17.03, 17.031, and 17.04 governed personal bonds, including who could grant them and what the bond had to contain. The statutory oath required the defendant to promise to appear or pay the principal amount plus necessary and reasonable arrest expenses for failing to appear.

Articles 17.20 through 17.22 addressed circumstances in which sheriffs and other peace officers could take bail bonds from defendants in custody. JM-760 read those provisions as authority to accept bail bonds, not as independent power to grant personal-bond release.

The Attorney General therefore separated the court or magistrate's discretionary release decision from the peace officer's authority to take a bond and discharge the accused when the statute allowed it.

Citations and references

Statutes:

• Texas Code of Criminal Procedure articles 17.03 and 17.031, personal-bond authority
• Texas Code of Criminal Procedure article 17.04, personal-bond requirements
• Texas Code of Criminal Procedure articles 17.20 through 17.22, peace officers taking bail bonds
• Former V.T.C.S. article 6701d, section 148, written promise to appear in traffic cases

Case:

• Ex Parte Trillo, 540 S.W.2d 728 (Tex. Crim. App. 1976)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0760
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0760.pdf

Original opinion text

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

July 29, 1987

Honorable Joe Warner Bell
Trinity County Attorney
P. O. Box 979
Groveton, Texas 75845

Opinion No. JM-760

Re: Whether a peace officer may, without further authorization, release on personal bond a defendant charged with a misdemeanor

Dear Mr. Bell:

You ask whether a peace officer may, without further authorization, release on personal bond a defendant charged with a misdemeanor. We assume that your question does not refer to misdemeanor traffic offenses. In those cases, an arresting officer may release an individual by obtaining his written promise to appear in court. V.T.C.S. art. 6701d, §148.

In reviewing your question, we first look to those statutes in chapter 17 of the Code of Criminal Procedure which address the matter of the release of a defendant upon personal bond.

Art. 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.

Art. 17.031

(a) A magistrate may, upon the setting of a bond, release the defendant on his personal bond, in which case the bond may be transferred to any court wherein the case may later be heard, and subsequent courts may not revoke the personal bond except for good cause shown.

(b) Any magistrate in this state may release a defendant on his personal bond where the complaint and warrant for arrest does not originate in the county wherein the accused is arrested if the magistrate would have had jurisdiction over the matter had the complaint arisen within the county wherein the magistrate presides. The personal bond may not be revoked by the judge of the court issuing the warrant for arrest except for good cause shown.

(c) If there is a personal bond office in the county from which the warrant for arrest was issued, the court releasing a defendant on his personal bond will forward a copy of the personal bond to the personal bond office in that county.

Art. 17.04

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. In addition, a personal bond shall contain the defendant's name, address and place of employment, and the following oath sworn and signed by the defendant:

"I swear that I will appear before (the court or magistrate) at (address, city, county) Texas, on the (date), at the hour of (time, a.m. or p.m.) or upon notice by the court, or pay to the court the principal sum of (amount) plus all necessary and reasonable expenses incurred in any arrest for failure to appear." (Emphasis added).

The matter of the release of a defendant upon bond being taken by a peace officer is addressed in chapter 17, as follows:

Art. 17.05

A bail bond is entered into either before a magistrate, upon an examination of a criminal accusation, or before a judge upon an application under habeas corpus; or it is taken from the defendant by a peace officer if authorized by Article 17.20, 17.21, or 17.22.

Art. 17.20

The sheriff, or other peace officer, in cases of misdemeanor, may, whether during the term of the court or in vacation, where he has a defendant in custody, take of the defendant a bail bond.

Art. 17.21

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, or other peace officer, unless it be the police of a city, 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.

Art. 17.22

In a felony case, if the court before which the same is pending is not in session in the county where the defendant is in custody, the sheriff, or other peace officer having him 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. (Emphasis added).

The Interpretative Commentary following article 17.01 includes a statement relative to a personal bond, as follows:

Under the new Code a person who is charged with an offense may, if the court deems it wise, be released on his own bond without the necessity of sureties.

The Committee further determined that too often an appellant was denied his right to appellate review because of the ineptness of his lawyer who had his client released pending appeal under a bond rather than a recognizance or vice versa, so all recognizances were eliminated from the new Code and now one who has been convicted may secure his release pending appeal only by entering into a bond which was set by the committing magistrate or changed by the trial court. Only one bond is required unless the trial judge raises the amount of bail required or lowers it as the Code permits him to do. (Emphasis added).

A Special Commentary following article 17.04 states:

An innovation in the new Code permits the court, in its discretion to release a defendant on his personal bond without sureties or other security. The requisites for such bond set forth in Art. 17.04 (among other things), call for the bond to reflect the defendant's name, address and place of employment as well as his oath that he will appear as ordered or pay amount of bond plus expenses of arrest.

There are those defendants with ties to the community such as a family, a job, etc., but who do not have sufficient funds for a bail bondsman, corporate surety, nor friends with sufficient property to qualify as sureties under Art. 17.13. The amendment was designed to allow such defendant to be released on a personal bond and to return to his family and his job pending trial. (Emphasis added).

In Ex Parte Trillo, 540 S.W.2d 728, 732 (Tex. Crim. App. 1976) the matter of the trial court's refusal of a personal bond to a defendant was before the court. The court stated:

The granting of a personal bond is a matter within the discretion of the court before whom the case is pending. Art. 17.03, V.A.C.C.P. See also Art. 17.031, V.A.C.C.P.; Art. 2372p-1, Sec. 3, Vernon's Ann. Civ. St.; Art. 2372p-2, Sec. 1, Vernon's Ann. Civ. St. It follows that there will be some situations where a personal bond will not be appropriately within the discretion of a trial court, and a personal bond should not be granted. We therefore decline to hold that a personal bond must be granted in all cases such as the one at bar, since to do so would violate the clear language of Art. 17.03, supra, that this decision is a discretionary one. (Emphasis added).

A peace officer may release a defendant upon bail bond under conditions specified in articles 17.20, 17.21, or 17.22. The judge of the court before whom the case is pending or a magistrate are the only officials authorized to release a defendant on personal bond. Arts. 17.03, 17.031.

SUMMARY

A peace officer may not, without authorization from a court or magistrate (except in traffic cases, an arresting officer may release an individual by obtaining his written promise to appear in court, V.T.C.S. art. 6701d, §148), release on personal bond a defendant charged with a misdemeanor.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

¹ Articles 2372p-1, section 3, and 2372p-2, section 1, V.T.C.S., relate to gathering, reviewing, and providing a court with information to enable it to determine whether an accused should be released on personal bond.