Bail and Bond Issues

AuthorMark G. Daniel/Robert K. Gill
Chapter 9
Table of Contents
§9:10 Right to Bail
§9:11 Statutory and Constitutional Law
§9:12 In General
§9:13 Form: Sample Application for Writ of Habeas Corpus
§9:20 Defendant’s Burden to Object to Improper Bond Conditions
§9:30 Fixing Amount of Bail
§9:31 Existence of Outstanding Bonds
§9:32 Conformity With Previous Bonds
§9:33 Defendant’s Criminal Record
§9:34 Circumstances of Offense
§9:35 Ability to Make Existing Bond Amount
§9:36 Future Safety of Victim
§9:37 Threats and Actions of Defendant
§9:38 Cases on Pretrial Bond Amounts
§9:40 Specific Bond Conditions
§9:41 Statutorily Authorized Bond Conditions
§9:41.1 Ignition Interlock Devices
§9:41.2 Conditions Related to Victim or Community Safety
§9:41.3 Conditions Where Child Is Alleged Victim
§9:41.4 Home Curfew and Electronic Monitoring
§9:41.5 Drug Testing
§9:41.6 Conditions Requiring AIDS and HIV Instruction
§9:41.7 Conditions for Defendant Charged With Stalking
§9:41.8 Submission of DNA Specimen
§9:41.9 Conditions in Family Violence Cases
§9:42 Pretrial Bond Conditions (Upheld)
§9:43 Pretrial Bond Conditions (Not Upheld)
§9:44 Forms and Motions
T C L’ H 9-2
§9:50 Increasing Bond Amounts
§9:60 Denial of Bond
§9:70 Revocation of Bond
§9:80 Personal Bonds
§9:90 Release of Certain Mentally Ill Defendants
§9:100 Regulation of Bail Bond Sureties
§9:110 Release of Defendant Because of Delay
§9:111 In General
§9:112 Application of Time Limit
§9:113 Readiness of State
§9:114 Amount of Bond Set
§9:115 Burden of Party Seeking Relief
§9:120 Bond in Family Violence Cases
§9:130 Appeal Bonds
§9:131 Applicable Statutes
§9:132 Granting of Bail During Appeal
§9:133 Conditions of Appeal Bond
§9:134 Appeal Bond Conditions (Upheld)
§9:135 Appeal Bond Conditions (Not Upheld)
§9:136 Denial of Bail on Appeal
§9:137 Revocation of Appeal Bond
§9:138 Bail When Case Reversed
§9:140 Constitutional Provisions
§9:141 Denial of Bail in Capital Cases
§9:142 Denial of Bail in Other Cases
§9:143 Form: Sample Motion to Deny Bail
§9:150 Bond for Post-Trial Habeas Corpus Applicants
§9:151 Statutory Law
9-3 B  B I §9:12
§9:10 Right to Bail
§9:11 Statutory and Constitutional
CCP Art. 1.07. Right to bail
All prisoners shall be bailable unless
for capital offenses when the proof is
evident. This provision shall not be
so construed as to prevent bail after
indictment found upon examination of
the evidence, in such manner as may be
prescribed by law.
CCP Art. 1.09. Cruelty forbidden
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel
or unusual punishment inflicted.
CCP Art. 17.38. Rules applicable to all
cases of bail
The rules in this Chapter respecting
bail are applicable to all such
undertakings when entered into in the
course of a criminal action, whether
before or after an indictment, in every
case where authority is given to any
court, judge, magistrate, or other officer,
to require bail of a person accused of an
offense, or of a witness in a criminal
Texas Constitution Art.1 §11. Bail
§11. All prisoners shall be bailable
by sufficient sureties, unless for
capital offenses, when the proof is
evident; but this provision shall not be
so construed as to prevent bail after
indictment found upon examination of
the evidence, in such manner as may
be prescribed by law.
Texas Constitution Art. 1, §13. Excessive
bail or fines; cruel and unusual
punishment; remedy by due course of law
§13. Excessive bail shall not be
required, nor excessive fines imposed,
nor cruel or unusual punishment
inflicted. All courts shall be open, and
every person for an injury done him, in
his lands, goods, person or reputation,
shall have remedy by due course of law.
§9:12 In General
With narrow exceptions, Article I, §11 of the
Texas Constitution provides all prisoners a right to
bail pending trial. Smith v. State, 829 S.W.2d 885
(Tex.App.—Houston [1st Dist.] 1992, pet. ref’d).
A defendant has a liberty interest in bail, which
requires the protection of the due process clause
of the Fourteenth Amendment. Smith v. State, 993
S.W.2d 408 (Tex.App.—Houston [14th Dist.] 1999,
pet. ref’d); Robinson v. State, 700 S.W.2d 710 (Tex.
App.—Houston [14th Dist.] 1985, no pet.).
The primary purpose of bond is to ensure the
defendant’s presence in court at all proceedings. Estrada
v. State, 594 S.W.2d 445 (Tex. Crim. App. [Panel Op.]
1980). The decision regarding a proper bail amount lies
within the sound discretion of the trial court. Ex parte
Brown, 959 S.W.2d 369 (Tex.App.—Fort Worth 1998,
no pet.); Ex parte Green, 940 S.W.2d 799 (Tex.App.—
El Paso 1997, no pet.). There is no precise standard
for reviewing bail bond settings. Ex parte Watson, 940
S.W.2d 733 (Tex.App.—Texarkana 1997, no pet.); Ex
parte Pemberton, 577 S.W.2d 266 (Tex. Crim. App.
[Panel Op.] 1979).
The trial court does not have inherent authority
to impose conditions on a defendant’s pre-trial bond
that are not authorized by statute; and further, Art.
17.15 does not implicitly authorize other conditions
not expressly stated. Ex parte Tucker, 977 S.W.2d 713
(Tex.App.—Fort Worth 1998, pet. dism’d).
Absent legislative intent to the contrary, a trial
court has inherent power in misdemeanor and
felony appeals to impose conditions on bail that
directly or indirectly relate to the purpose of
assuring the defendant’s continued appearance.
Dallas v. State, 983 S.W.2d 276 (Tex. Crim. App.
1998). It is not necessary that the bond condition in
question relate directly to securing the defendant’s
presence in court. Estrada, supra. It is sufficient
if the condition indirectly increases the likelihood
that the defendant will appear. Rodriguez v. State,
744 S.W.2d 361 (Tex.App.—Corpus Christi 1988,
no pet.); Estrada.
Determining the “reasonableness” of a bail
condition must be done in light of its purpose, to
assure the presence of the defendant. Valenciano v.

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