BAIL Timelines & Considerations
Ft. Worth Municipal Court
Magistrate Clinic
November 13th, 2015
This Discussion is… and is not…
• The topic today relates primarily to the process, form, appropriate amounts, and conditions of bonds given to secure a defendant’s appearance before the court of jurisdiction.
• This is not intended as a discussion of the complicated dance better known as “bond forfeiture” or “judgment nisi.”
• Bond forfeiture is an important function of the court, but deserves its own discussion touching on both criminal and civil processes.
• This is also not intended as a discussion of Appeal Bonds as a part of an appeal from a municipal court (Ch. 45.42 and 45.425 and Chapter 30, Govt. Code)
Class “c” offenses and above…
• This discussion is intended to address magistrate functions.
• As municipal courts, our judges, as all judges, act partly in their capacity as Judge of a particular court, but also as a magistrate for their city and county.
• And while some municipal judges may rarely “magistrate” defendants on matters outside their own jurisdiction, the general statutory provisions for bail are the same – Chapter 17, Tx.C.C.P.
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Class “c” or otherwise…
• While, Ch. 45 generally provides simplified processes for municipal and justice courts, Art. 45.016 merely states that,
“The justice or judge may require the defendant to give bail to secure the defendant's appearance in accordance with this Code. If the defendant fails to give bail, the defendant may be held in custody.”
• The “Code” referenced is… CHAPTER 17 Tx.C.C.P.
What Is Bail? Why Does it Matter?
• Not a new concept ‐ derived from Old English Common Law and the British Bill of Rights
• Found in the U.S. (and Texas) Constitution – 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
• An interesting paradigm… most avoid equating justice with money
• But, it is not only money… it is an “undertaking’
A Few Definitions…
“A Bail Bond” is: a written undertaking entered into by the
defendant and the defendant's sureties for the appearance
of the principal therein before a court or magistrate to
answer a criminal accusation; provided, however, that the
defendant on execution of the 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.
Tx.C.C.P. 17.02
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• “Bail” is the undertaking, promise, collateral or condition promised or given to secure release from custody. Bail is the security given by the accused that he or she will appear and answer the accusation before the proper court.
• “Bond” is the actual instrument or document memorializing the agreement or the parties.
• “Personal Bond” is a Bond authorized by a magistrate allowing a defendant ‘s release without first posting a monetary sum.
• “Principal”: the defendant or person whose release is by bail.
• “Surety” is a person, corporation or entity acting as guarantor for the appearance of the defendant, the defendant’s compliance with any terms of bond, or financial obligations created by the bond.
• “Taking bond” means the setting, acceptance or processing of a bail bond.
• “Persons authorized to take bond” are (1) magistrates upon examination of a criminal accusation, (2) Judges upon an application of habeas corpus, and…. (3) peace officers and even jailers. (TxCCP 17.20, 17.21 and 17.22)
The Purpose of Bail…
• Freedom… Bail is a process intended to support the concept better known as the “presumption of innocence.”
• Bail is intended to promote an expeditious release from custody provided reasonable assurances can be given.
• Bail is the security given by the accused that they will appear and answer the criminal accusation before the proper court.
• Bail is not intended as punishment.
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Statutory Basis and Purpose of Bail…
Unlike so many areas of the law, almost everything a magistrate needs to consider in setting and taking a bond can be found in…
CHAPTERS 14, 15, & 17
Texas Code of Criminal Procedure
Art. 17.15. “RULES FOR FIXING BAIL.”
The amount of bail to be required in any case is to be
regulated by the court, judge, magistrate or officer taking the
bail; they are to be governed in the exercise of this discretion
by the Constitution and by the following rules:
1.
2.
3.
4.
5.
The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
The power to require bail is not to be so used as to make it an instrument of oppression.
The nature of the offense and the circumstances under which it was committed are to be considered.
The ability to make bail is to be regarded, and proof may be taken upon this point.
The future safety of a victim of the alleged offense and the community shall be considered.
Bail must be “reasonable”…
• Most importantly, whatever the bail, after considering the five criteria in Art. 17.15, the bond must be reasonable.
• No exact definition of what is reasonable.
• Reasonable is based upon the circumstances.
• Likelihood of reappearance, safety to the victim and the community as a whole.
• Cannot be oppressive (intended to keep him in jail)
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Art. 17.08. REQUISITES OF A BAIL BOND
• A bail bond must contain the following requisites:
‐
made payable to "The State of Texas";
‐
defendant and sureties, if any, bind themselves that the defendant will appear before the proper court or magistrate to answer the accusation against him;
‐
If a felony, it must state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state that he is charged with a misdemeanor;
‐
bond must be signed by name or mark of principal and
sureties, if any, and mailing address;
‐
state the time and place, when and where the accused
must appear, and the court or magistrate before whom he is to
appear initially and any court or magistrate thereafter be
pending at any time;
‐
shall also be conditioned that the principal and sureties, if
any, will pay all necessary and reasonable expenses incurred in
re‐arresting the principal in the event principal fails to appear.
Can the bond be “Cash Only”?
• A magistrate cannot require a defendant to post bail in cash only.
Ex parte Deaton, 582 S.W.2d 151 (Tex. Crim. App. 1979); Ex parte
Rodriguez, 583 S.W.2d 792 (Tex. Crim. App. 1979); Tex. Atty. Gen. Op.
JM‐363 (1985).
• The exception to this rule is when a bond forfeiture has been
declared and the defendant is arrested on a capias. The court
(Judge) may then require a cash bond. Art. 23.05, C.C.P. For more
on bail bonds, see Article 17.02, C.C.P.
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Can bail be differential? • A magistrate may not set differential bail based on the type of bond (e.g., $100 cash or $1,000 surety). Must be the same amount regardless of form.
• Magistrate does not have discretion to restrict the type of bail, cash, or surety, to the exclusion of the other. A magistrate may require a cash bond only when a forfeiture of bail has been declared. A magistrate may designate that personal recognizance bond be denied by stating “cash or surety” on the bail setting.
Special procedures for fine‐only offenses
• Magistrate may set surety/cash appearance bond.
• Magistrate may set personal bond.
• Magistrate may release without setting bond:
• Only in fine‐only misdemeanors;
• Magistrate must give defendant the time and place to appear to answer to the charges against him or her in writing;
• Release without bond is not available if defendant has a prior felony or Class A or B misdemeanor conviction.
Can Bail be set without regard to monetary amount?
• Not really… bail must reflect a monetary amount to be paid in the event of default.
• However, practically, a magistrate may release a defendant without requiring payment of a monetary sum premised upon their assurances that they will appear as required by the Court.
• These are known as Personal Bonds.
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Art. 17.04. 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.
In addition to the requisites of a bail bond a personal bond shall contain:
(1) defendant's name, address, and employment;
(2) identification information (date and place of birth; height, weight,
and color of hair and eyes; driver's license number and state of issuance, if
any; and nearest relative's name and address, if any; and,
(3) 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."
Art. 17.03 Limitations on Personal Bonds
Only the court before whom the case is pending may release on personal bond a defendant who is charged with:
‐
‐
‐
‐
‐
‐
‐
‐
‐
‐
‐
Capital murder; Aggravated kidnapping;
Aggravated sexual assault;
Deadly assault on law enforcement officer, corrections officer, parole board member or employee, or court participant;
Injury to a child. elderly individual, or disabled individual;
Aggravated robbery;
Burglary;
Organized criminal activity;
Continuous Sexual Abuse of Young Child or Children;
Continuous Trafficking of Persons; or,
Any aggravated felony under Chapter 481 or Section 485.033, H.S.C.
Release If Arrested Without Warrant If no Magistrate’s Finding of Probable Cause… (17.033)
A person arrested without warrant (on sight) must be released on
bond,
‐
in an amount not to exceed $5,000, not later than the 24th
hour after the person's arrest if the person was arrested for a
misdemeanor, and;
‐
in an amount not to exceed $10,000, not later than the 48th hour
after the person's arrest if the person was arrested for a felony,
IF, a magistrate has not determined whether probable cause exists to
believe that the person committed the offense.
AND…
IF the person is unable to obtain a surety for the bond or unable to
deposit money in the amount of the bond, the person must be
released on personal bond.
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Can bail be modified, increased or reduced?
• Under Art. 17.09, once a defendant has given bail for his
appearance, he shall not be required to give another bond in
the course of the same criminal action unless:
‐ the judge or magistrate in whose court such action is
pending finds that the bond is defective, excessive or
insufficient in amount, or that the sureties, if any, are not
acceptable, or for any other good and sufficient cause, that
judge or magistrate may order the accused to be
rearrested, and require another bond in an amount the
judge or magistrate deems proper.
Art. 17.091. Notice of Bail Reduction
Before a judge or magistrate reduces the amount of bail set
for a defendant charged with murder, capital murder,
aggravated sexual assault, aggravated robbery, continuous
sexual assault of a young child, and trafficking of persons, the
judge or magistrate shall provide:
(1) to the attorney representing the state, reasonable
notice of the proposed bail reduction; and,
(2) on request of the attorney representing the state or
the defendant or the defendant's counsel, an opportunity
for a hearing concerning the proposed bail reduction.
Art. 17.16 Surrender of Principle
A surety may before forfeiture relieve the surety of the surety's undertaking by:
(1) surrendering the accused into the custody of the sheriff of the county where the prosecution is pending; or
(2) delivering to the sheriff of the county in which the prosecution is pending and to the office of the prosecuting attorney an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state.
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Art. 17.19 Affidavit to Surrender Principle
• Any surety, whether the defendant is in custody or not may, after notifying the principal's attorney, if the principal is represented by an attorney, in a manner provided by Rule 21a, TRCP, of the surety's intention to surrender the principal, may file an affidavit of such intention before the court or magistrate before which the prosecution is pending. • If the court finds that there is cause for the surety to surrender the surety's principal, the court shall issue a capias for the principal.
Limited Denial of Bail ‐ Generally
• Bail may be denied in capital cases when the State presents proof evident that conviction and death sentence will result from trial. Art. I, Sec. 11, Tex. Const.
• ONLY A DISTRICT judge may deny bail in non‐capital cases when there is a substantial showing by the State within seven days of arrest that the defendant:
• Is guilty of the charged felony, with two prior convictions; • Committed a felony while on bail for a prior felony for which he or she was indicted;
• Committed a felony involving the use of a deadly weapon after being convicted of a prior felony; or,
• Committed a violent or sexual offense while under the supervision of a criminal justice agency of the State or political subdivision of the State for a prior felony.
Art. 17.153 ‐Denial of Bail by Magistrate
A judge or magistrate may deny bail pending trial for a defendant
charged with a felony offense if:
‐
committed against a child younger than 14 years of age as to
a Sexual Offense, Prohibited Sexual Conduct, Sexual Performance,
Human Trafficking;
OR,
‐
the magistrate finds that the defendant, while out on bond,
violated a condition of bond set under Art. 17.41 related to the
safety of the victim or the community, a protective order or
violation of a prior order of a court in a family violence case
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Conditions of Bond…
• Magistrates have the general discretion to impose any of the following as conditions of release for any offense:
‐”Any reasonable condition” related to the safety of the victim of the alleged offense or the safety of the community (17.40)
‐Home curfew and electronic monitoring (17.43)
‐Weekly Drug testing (17.44)
‐Specimens for creating DNA record (17.47)
Revocation of Bond – Order of Arrest
‐ If a judge or magistrate finds (by a preponderance of evidence) at a hearing limited to determining that a defendant violated a condition of bond:
“the magistrate SHALL revoke the defendant’s bond, and ORDER that the defendant be immediately returned to custody.” Tx.C.C.P. 17.40(b)
Family Violence Conditions of Bond
Magistrates have the discretion to impose any of the following for an offense involving family violence:
‐
Refrain from going to or near a residence, school, place of employment, or other location as specifically described in the bond frequented by an alleged victim of the offense;
‐
Carry or wear a global positioning system (GPS) device and pay the costs associated with the device;
‐
Pay the costs associated with providing the victim a receptor that can receive information from the GPS device won by the defendant and that notifies the victim if the defendant is at or near a prohibited location.
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CCP 17.441‐ Ignition Interlock
A magistrate SHALL REQUIRE, when defendant charged with a subsequent offense under the Penal Code for: • 49.04 ‐ DWI
• 49.045 – DWI Child Passenger
• 49.05 – Flying
• 49.06 – Boating
• 49.065‐ Amusement ride
OR an offense under: • 49.07‐ Intoxication assault
• 49.08 – Intoxication Manslaughter
CCP 17.441‐ Ignition Interlock
IF an Ignition Interlock Device is required or ordered, the magistrate SHALL require on release that a defendant install a deep‐lung breath analysis mechanism:
• On the motor vehicle owed by or most regularly driven by the defendant;
• Defendant not operate any vehicle unless device installed;
• Have the device installed on appropriate motor vehicle within 30 days of release on bond; and,
• Pay the expense of installation
Interlock May be Ordered on 1st Offense
• While Interlock is required on 2nd offense or other mandatory Interlock offenses under Art. 17.441, it is within the Magistrate’s discretion to require installation of Deep Lung Device (I.I.D.) on ANY alcohol related offense involving the operation of a vehicle.
• Include 1st Offenses, Minor Driving Under the Influence, etc.
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Regardless of the Condition of Bond…
Remember ….
until the case has been accepted for filing by the District Attorney , and until a complaint, information or indictment has been filed with a court of appropriate jurisdiction, the MAGISTRATE RETAINS JURISDICTION and authority and jurisdiction to enforce, vacate or enforce any conditions or requirements of bond.
So, Regardless of the Condition of Bond…
• A condition of bond that is not committed to writing is not enforceable;
• A condition of bond that cannot be understood by a reasonable person will meet legal challenge; and
• A condition of bond that is ultimately unenforceable is worthless and does not serve the ends of justice.
Questions… Comments???
ROBIN A. RAMSAY
Judge, City of Denton, Texas
940‐349‐8139
940‐765‐6527 (Cell)
[email protected]
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A Guide to Pretrial Release for Magistrates and Officers
Arrest Type
Determination
i
of PC
Warrantless Arrests
Arrests Under Warrant
Misdemeanor
Judge or
magistrate
Issuing warrant
Who?
15.17
Set Bail
ii
Warnings
Magistrate
Felony
Judge or
Magistrate
Issuing Warrant
Magistrate
Misdemeanor
Magistrate after
arrest
Magistrate
Magistrate
seeing
defendant
after arrest
(not issuing
magistrate)
or peace
officer (only
if magistrate
is not
iii
available)
Court
Where
Prosecution
is Pending
(if in
session)
Magistrate
Seeing
Defendant
after arrest
Or Peace
Officer (only
if no
amount has
been fixed
by court or
magistrate)
Magistrate
Misdemeanor
(No magistrate
available)
If no
determination
has been made
within 24 hours,
Art. 17.033
triggers release
on statutory bail
amount
Will not
happen
while in
custody
prior to
charging
Set by peace
officer Statutory
Max of
$5000
Felony
Determined by
Magistrate after
Magistrate
Magistrate
Take Bail
Magistrate
or officer
When?
Maximum
Maximum
Time Held
Time Held
Before
Pending Trial
Magistration
48 hours
15 days for
Class A or B
misdemeanor
5 days class C
misdemeanor
Magistrate
or Officer
48 hours
90 Days
Magistrate
or Officer
24 hours
15 days for
Class A or B
misdemeanor
Officer can
take bail or
must
release on
Personal
Bond, if
defendant
is unable to
pay or
secure a
surety
Magistrate
or Officer
24 hours
48 hours
5 days Class C
misdemeanor
Defendant not
held past 24
hours, unless a
motion is filed
by the state.
90 Days
A Guide to Pretrial Release for Magistrates and Officers
Felony
(no magistrate
available)
i
arrest
If no
determination
has been made
within 48 hours,
Art. 17.044
triggers release
on statutory bail
amount
Will not
happen
while in
custody
prior to
charging
Set by Peace
Officer –
Statutory
Max of
$10,000
See County of Riverside v. McLaughlin, 500 U.S. 44 (U.S. 1991).
See Arts. 2.09 and 15.17, Code of Criminal Procedure.
iii
See Arts. 17.05 and 17.20, Code of Criminal Procedure.
ii
Officer can
take bail or
must
release on
Personal
Bond, if
defendant
is unable to
pay or
secure a
surety
48 hours
Defendant not
held past 248
hours, unless a
motion is filed
by the state.
Considerations When Setting Bail
According to Article 17.15, judges, magistrates, or officers setting bail are to be governed
by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will
be complied with. Typically, the undertaking to be complied with is commitment to show up for
court. In determining amount of bail, the trial court can consider various factors that go into
determining what amount will be required to give reasonable assurance that the defendant will be
present at trial including prior felony convictions, potential punishment, and precious instances
of skipped bail.1
2. The power to require bail is not to be so used as to make it an instrument of oppression.
Using the amount of bail to force a defendant to remain in jail pending trial has been viewed as
oppression.2 In Ex Parte Harris, a district court’s refusal to reduce bail was found to be an abuse
of discretion because the refusal was for the express purpose of forcing the defendant to remain
incarcerated, not upon a determination that the amount was necessary to assure appearance or
that the defendant had not made adequate effort to make bail.3
3. The nature of the offense and the circumstances under which it was committed are to be
considered. The nature of the offense necessarily involves consideration of the punishment
permitted by law.4 The circumstances of the crime should also come into play as it did when a
defendant convicted of first-degree murder was not entitled to have his $100,000 bail reduced
pending appeal, when he had put a gun against his girlfriend’s face and shot her between the
eyes, carried a gun to school on a school bus, intimidated witnesses, endangered lives of other
students at school, disposed of the gun after the murder, and created a false impression that
another person had committed the offense.5
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
Courts should remember that while the ability to make bail is a factor that must be considered,
the ability or inability to make bail does not alone control the amount, even when indigency is
involved.6 In Ex parte Scott, testimony that a defendant lacked sufficient resources to post
$100,000 bond on a charge of aggravated kidnapping, and that his family could pay a bond if it
was reduced to $25,000, did not make the $100,000 bail unconstitutionally excessive.7
5. The future safety of a victim of the alleged offense and the community shall be
considered. The Code, unfortunately, does not tell us precisely why an increase in the risk of
financial loss reduces the risk of harm to the victim or the community, and courts have simply
treated the fact that a defendant poses a risk as an acceptable factor to support a higher bail
amount.8 A limitation on the constitutional right to bail due to victim or community safety is
valid only if there is a reasonable relationship between the amount of bail and the protection of
the victim or the community.9
1
Ex Parte Watson, 940 S.W.2d 733 (Tex. App.—Texarkana 1997, no pet.).
Ex parte Milburn, 8 S.W.3d 422, 424 (Tex. App.—Amarillo 1999, no pet.).
3
Ex parte Harris, 733 S.W.2d 712 (Tex. App.—Austin 1987, no pet.).
2
4
Ex parte Runo, 535 S.W.2d 188 (Tex. Crim. App. 1976).
Hughes v. State, 843 S.W.2d 236 (Tex. App.—Houston [14th Dist.] 1992, no pet.).
6
Ex parte Penagos, 810 S.W.2d 796 (Tex. App.—Houston [1st Dist.] 1991, no pet.).
7
Ex parte Scott, 122 S.W.3d 866 (Tex. App.—Fort Worth 2003, no pet.).
8
41 Dix & Schmolesky, Texas Practice: Criminal Practice & Procedure, Sec. 21.28-21.29 (3d ed. 2011).
9
Id.
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