In our small county, we do not always have a magistrate available on the week ends to set bond. Assume our deputy sets a bond on a misdemeanor on Saturday night, but locates a magistrate within 24 hours who can then determine probable cause and possibly set a new bond. Must the person arrested still be released on a personal bond under 17.033 (a) if he can't make the bond set by the deputy within the initial 24-hour period, or does the fact that a magistrate determines probable cause within 24 hours negate this? If so, is there any problem with the two separate bond settings? Has anyone dealt with this question yet?

I have been teaching an Arrest, Search & Seizure update for our Highway Patrol In-Service classes for the last few months. I have had a lot of questions on 17.033 from the Troopers, particularly those in counties with small populations and large amounts of territory. I have also had calls from a couple of JPs on the 24 hour PC requirement. Apparently, compliance is a big problems in certain counties. I also would like to know how your counties are dealing with the 24 hour PC requirement. Maybe I can get some ideas to pass along to my callers.

Janette

The person must be released only if (1) he was arrested without a warrant and (2) a magistrate has not by the 24th hour after arrest determined that there is probable cause to believe the person committed "the" offense. A PR bond is required only if the person has been unable to obtain a surety (statute fails to say how hard they must try) or he doesn't have enough cash. This all seems to suggest release is mandatory if no timely magistrate finding of PC. Arts. 17.20 and 17.22 provide the sheriff or other peace officer may "take" a bail bond and art. 17.22 allows the officer to determine the "reasonable" amount of the bail in a felony case where "the court before which the case is pending" is not in session. There is no similar provision in 17.20. Presumably where 17.033 is applicable, there is no court before which the prosecution is pending (since the prosecution is normally initiated by the filing of complaint and judges often issue a warrant and open a file upon the filing of the complaint). Thus, it becomes unclear when the sheriff is authorized to "take" or set bail. Of course, our magistrates generally set bail pursuant to an inquiry under art. 17.25 or 15.17 rather than 17.21 (i.e. they see suspects in their capacity as magistrates rather than as the judge of the court in which the case is pending). Can a magistrate increase the amount of bail previously set by the sheriff? I say maybe not, though I would argue that if new facts are presented to the magistrate that suggest the sheriff's amount was inadequate, the magistrate should have such authority. Can the magistrate reduce the amount or change the kind of bail (to PR) if the defendant is still in custody? Yes.