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INFORMATIONAL: Texas Attorney General Provides Opinion on Out-of-County Magistrate Bond Setting
On April 1, 2022, the Lee County Attorney’s Office in Giddings, Texas sent a request for opinion to the Texas Attorney General’s Office. The request identified as RQ-0452-KP asked for a:
“[F]ormal written opinion on whether a magistrate in the county that issued a warrant may modify a bond set by an out of county magistrate once the accused is transferred to the county that issued the warrant.”
Martin Placke, County Attorney for Lee County – RQ-0452-KP
The request goes on to summarize that:
Often times an accused is arrested outside of the warrant issuing county and has a bond set by an out of county magistrate. In an unfiled case, when the accused is then transported back to the county of the offense and warrant issuing county, there may be a need or desire to modify the bond conditions previously set. The Code of Criminal Procedures appears to be silent as to whether the in-county magistrate has authority to modify the existing bond conditions.
Martin Placke, County Attorney for Lee County – RQ-0452-KP
Texas AG Issues Opinion on Bond Setting Affecting Out-of-County Arrests
On September 20, 2022, the Texas AG issued Opinion No. KP-0417. It states:
Whether an action is “pending” in a court depends on whether the court currently has jurisdiction over the matter. In Ex parte Clear, the Texas Court of Criminal Appeals held that the filing of a felony complaint in a justice court gave that court “[s]ole jurisdiction over th[e] complaint . . . to the exclusion of all other courts” until the complaint was dismissed or formal charges were filed. Ex parte Clear, 573 S.W.2d 224, 229 (Tex. Crim. App. 1978) (emphasis added); see also TEX. CODE CRIM. PROC. art. 4.16 (stating that generally “the court in which an indictment or a complaint shall first be filed shall retain jurisdiction”).
Accordingly, a district court could not modify the accused’s bond. See Ex parte Clear, 573 S.W.2d at 229. The Court later reiterated the principle that “to change the bonds already properly set by a magistrate,” another judge “must first have jurisdiction over” the case. Guerra v. Garza, 987 S.W.2d 593, 593 (Tex. Crim. App. 1999) (explaining that to allow the modification of a bond by a court without jurisdiction “could lead to a chaotic bail system, where unilateral, unbidden judicial actions abound, where all judges have jurisdiction over all things at all times, and where forum shopping to reduce or increase bail amounts flourishes,” which “would be unacceptable”).
Thus, if a magistrate receives a complaint and issues an arrest warrant, that magistrate exercises jurisdiction over the action until formal charges are filed in the appropriate court. See TEX. CODE CRIM. PROC. art. 15.03(a) (authorizing a magistrate to issue an arrest warrant upon receipt of a complaint); see also Tex. Att’y Gen. Op. No. GA-1021 (2013) at 3 (concluding in the context of surety that after a person is released on bond but before a formal charging instrument is filed in the proper court, the prosecution is “pending” before the “magistrate who properly received a complaint”)
Ken Paxton, Attorney General of Texas – KP-0417
Bail Can Be Set by an Out-of-County Magistrate, But the Bond Can Be Modified by the Issuing Magistrate
By contrast, when a person is arrested on a warrant issued in another county, the court of the magistrate who sets bail does not necessarily have jurisdiction over the case. See TEX. CODE CRIM. PROC. art. 15.18(a)(1) (providing that the magistrate before whom an out-of-county arrestee is taken shall “take bail, if allowed by law, and, if without jurisdiction, immediately transmit the bond taken to the court having jurisdiction of the offense” (emphasis added)). Based on these principles, a court would likely conclude that article 17.09 authorizes a magistrate who issued an arrest warrant executed in another county to modify a bond set by a magistrate from the arresting county until charges are filed in the appropriate court.
Ken Paxton, Attorney General of Texas – KP-0417
In summary, the Texas Attorney General’s Office states:
A court would likely conclude that a magistrate who issued an arrest warrant executed in another county may, until charges are filed in the appropriate court, modify a bond set by a magistrate from the arresting county pursuant to article 17.09, section 3, of the Code of Criminal Procedure. Article 17.09 does not expressly condition the authority to modify bonds on whether new bond conditions sought are mandatory or discretionary under the law.
Ken Paxton, Attorney General of Texas – KP-0417
A Couple of Our Other Reads
Should Justice of the Peace’s be able to issue Felony warrants if they cannot file them in the Justice Court?
Will the Texas Attorney General get a favorable opinion from the Texas Supreme Court to stop a whistleblower lawsuit?
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