"Who Set My Bond Anyways?"
James M. Yanney, 2/23/2021
A set of questions I get quite frequently during my practice are “who set the bond in my case?” and “can the bond amount in my case be lowered?”. Both of these are important questions to my clients and so therefor are important questions to me. Let’s take them in turn:
The bond in a criminal case is usually set by whatever judge is on duty at the time the suspect is arrested. For example, let us say Mr. John Smith is pulled over at 10:30 P.M. on Saturday night by a police officer who suspects he has committed the offense of DWI. Mr. Smith is arrested for DWI at 10:50 PM this night and placed in a police cruiser. He is then taken to the county jail. If there is a judge who is assigned to be on duty, it will be that judge who decides at what amount Mr. Smith’s is set. Also, it will be that judge who determines any “conditions of bond”. These conditions often require a person arrested to do or not do certain things upon their release from the county jail. In a DWI case, this may include having a breathalyzer type device installed in the person’s car or the obligation to not visit bars while the case pending.
In regards to the second question, the answer depends on several different factors. The 4th Court of Appeals (the appellate court with authority over the criminal courts of San Antonio and many surrounding counties) recently laid out the factors in its opinion in the case Ex Parte David Delgado. I’ll list them here and then offer a brief explanation below.
Some of the factors come directly from the Code of Criminal Procedure. They can be found in Article 17.15. These are them:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.
Beyond these factors, the court may also consider some additional reasons that it finds in its previous decisions:
(1) the nature of the charged offense and length of the potential sentence;
(2) the defendant’s ties to the community, including family ties;
(3) the defendant’s length of residency;
(4) the defendant’s employment history;
(5) the defendant’s criminal history;
(6) the existence of previous bonds against the defendant and his compliance with conditions of those bonds; and
(7) any aggravating circumstances involved in the
Ex parte Rubac, 622 S.W.3d at 849-50; Gonzalez, 383 S.W.3d at 162.
So, as you can see, there is a lot to legalese break down here. The upshot of all of these factors can be distilled into this:
In most case, a person is entitled to a bond but is not entitled to a specific bond amount.
The bond must be high enough to ensure the person shows up for court but it is not to be so high the person has no possibility of posting it.
The court will weigh the seriousness of the alleged crime and the alleged danger to the community against the person’s ability to pay the money required to secure their release.
There may be many things an attorney can do to help you or a loved one secure a personal or “signature bond” in a criminal case. An attorney can also help by attempting to get the amount of money required to make the bond lowered. Furthermore, an attorney may, in some situations, be able to file a Writ of Habeas Corpus to compel a court to release the defendant. In many cases, achieving any of these objectives will require the defense attorney to go before the judge and make the appropriate arguments.