No. JC-0195 (2000).

• Case Date: March 17, 2000
• Court: Texas

Texas Attorney General Opinions 2000. No. JC-0195 (2000). March 17, 2000Opinion No. JC-0195Tex. Att'y Gen. Op. No. JC-0195 (2000) -- John Cornyn AdministrationOffice of the Attorney General - State of Texas John CornynThe Honorable Tim CurryTarrant County Criminal District Attorney401 West BelknapFort Worth, Texas 76196-0201SYLLABUS: 2000-0195 Re: Whether a county sheriff is authorized to manage and dispose of cash bail bond money for unfiled criminal cases, and related questions (RQ-0117-JC) Dear Mr. Curry: You ask about the maintenance and disposition of cash bail bonds for criminal "no-filed" cases, and the disposition of unclaimed liquidated certificates of deposit held as security for the execution of bail bonds. Specifically, you first ask whether the Tarrant County Sheriff (the "sheriff") is required to forward cash bail bonds for unfiled cases to the district or county clerk for deposit in the county trust depository. Second, if the sheriff is not required to do so, you ask whether the sheriff is authorized to maintain the funds in a separate interest bearing account at the county depository. Third, you ask whether the county auditor must be a signatory on that account. Fourth, you ask whether the sheriff may disburse these funds to known defendants against whom no case is filed. Fifth, you ask whether no-filed case cash bail bonds become abandoned property subject to chapter 74 of the Property Code when the defendant cannot be found; and, if so, you also ask about the application of certain provisions of the Property Code dealing with abandoned property. Sixth, you ask whether liquidated certificates of deposit given as security for the execution of bail bonds become abandoned property subject to chapter 74 when the bondsmen or attorneys who deposited them cannot be found; and, if so, you also ask about the application of certain provisions of the Property Code. Finally, you ask whether all interest earnings on the no-filed case cash bail bonds and the liquidated certificates of deposit must be returned to the depositors. See Letter from Honorable Tim Curry, Tarrant County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General (Sept. 27, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]. To provide a context for your questions regarding no-filed case cash bail bonds, we briefly review the statutory scheme governing the taking of bail bonds. A bail bond is a written undertaking binding a defendant in custody to appear before a court or a magistrate to answer a criminal accusation. See Tex. Code Crim. Proc. Ann. art. 17.02 (Vernon 1977). The bond is in a specific amount and must be executed by the defendant and his or her surety. See id. The surety is often, but not always, a professional bondsman. See Tex. Att'y Gen. Op. No. JC-0024 (1999) at 1. In lieu of having a surety, a defendant may deposit cash with the custodian of the court in which the defendant's case is pending. See Tex. Code Crim. Proc. Ann. art 17.02 (Vernon 1977).Such cash deposits are "cash bail bonds." Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999). They are returned to the defendant if he or she complies with the conditions of the bond "and upon order of the court." Tex. Code Crim. Proc. Ann. art 17.02 (Vernon 1977). Once the required bail is given either to a magistrate, a court, or "the officer having him in custody," the defendant must be set free. Id. art. 17.29 (Vernon Supp. 2000). Under article 17.02 of the Code of Criminal Procedure, cash bail bonds are "receipted for by the officer receiving the same." Id. art 17.02 (Vernon 1977). Article 17.05 provides that a peace officer may "take" bail from the defendant if authorized by articles 17.20, 17.21, or 17.22 of the Code of Criminal Procedure. See id. art 17.05. Article 17.20 provides that a sheriff, "or other peace officer, in cases of misdemeanor, may, whether during the term of the court or in vacation," take bail bond from a defendant the officer has in custody. Id. art. 17.20. Article 17.22 permits a sheriff or "other peace officer" having a defendant in custody in a felony case to take bail if the court before which the case is pending is not in session. Id. art. 17.22. And, article 17.21 permits a sheriff or other peace officer "unless it be the police of a city" to take bail from the defendant in the officer's custody even when the court in which the prosecution is pending is in session. Id. art. 17.21. Because of these provisions allowing a sheriff or another peace officer to take cash bail bonds, Attorney General Opinion C-740 determined that the article 17.02 officers authorized to "receipt" cash deposits include peace officers "as well as the custodian of funds of the court in which the prosecution is pending, which would be the clerk of the court or a justice of the peace." Tex. Att'y Gen. Op. No. C-740 (1966) at 4. The receipted cash bail bonds, however, must be deposited "with the custodian of funds of the court in which the prosecution is pending." Id. And the sheriff or another peace officer, according to Attorney General Opinion C-740, is neither an authorized nor appropriate custodian. See id. Accordingly, the opinion advised, a sheriff should simply receipt the cash bonds and turn over the money to the authorized custodian, namely, the clerk of the court or the justice of the peace as appropriate. See id. ; see also Tex. Att'y Gen. Op. No. H-183 (1973) at 10 (sheriff to deposit cash bail bonds with district clerk or county clerk) (citing Attorney General Opinion C-740). Your first five questions relate to cash bail bonds accepted and receipted by the sheriff. You explain that before a case is filed, the cash bonds are initially deposited in the Tarrant County Sheriff's Trust Fund Account (the "Trust Account"), a separate interest bearing account managed by the sheriff, because they cannot be deposited in the registry of a court given that no court case is yet filed. When the Office of the Criminal District Attorney in Tarrant County (the "D.A.'s office") files a criminal case against a defendant, the cash bond is forwarded to the court registry. The cash bond remains in the Trust Account, however, when the D.A.'s office does not file a case against the defendant from whom the cash bond was taken. If no case is filed, the D.A.'s office sends to the defendant and the sheriff a "no-file letter." When a "no-file letter" is issued, the sheriff's department attempts to locate that defendant. If he or she is found, the department releases the cash bond to the defendant; otherwise it remains in the Trust Account. See Request Letter at 1-2. We understand you to ask first whether the sheriff is required to forward the no-filed case cash bail bonds to the district or county clerk for deposit in the county trust depository. We conclude in the negative because the statutory provisions requiring a sheriff to forward the cash bail bonds to the county or district clerk for deposit in the county trust depository are inapplicable when no case is filed against a defendant. First, article 17.02 of the Code of Criminal Procedure requiring the deposit of cash bail bonds with the clerk of the court or the justice of the peace as "custodian of funds of the court in which the prosecution is pending," is premised on filing of a criminal case. Attorney General Opinion C-740's determination that the sheriff must turn over the funds to the court custodian is similarly premised on the filing of a case and the involvement of a court: [T]he officer receiving the cash, if he is not the custodian of the funds of the court, should deposit the sum of money received with the custodian. We are of the opinion that there is no necessity or authority for a court to appoint a sheriff as custodian of the funds since the clerk of the court or the justice of the peace, as the case may be, is already charged with that duty. The sheriff or other peace officer accepting the cash bond should simply receipt the bond to the defendant and then turn the money over to the clerk of the court or the justice...