CONDITIONS OF BAIL
( IN DRIVING WHILE INTOXICATED
CASES AND OTHER OFFENSES)
BY
JUDGE SCOTT E. KURTH

INTRODUCTION

The following article, while certainly not exhaustive, is intended to acquaint

Texas Municipal Judges and Justices of the Peace with the constitutional

provisions, statutes and case law applicable to:

1. a defendant’s right to bail; and

2. setting the conditions of bail, with a particular emphasis on the conditions of

3. bail in cases where the defendant is charged with the offense of Driving While

Intoxicated. See generally Penal Code §49.04.

CONSTITUTIONAL RIGHT TO BAIL AND ITS IMPORTANCE

Articles I § II of the Texas Constitution provides that all prisoners are

“bailable”[1] pending trial, unless charged with a capital offense.[2] The primary

purpose of an appearance bond is to secure the presence of the defendant in court

for the trial of the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550

(Tex. Crim. App. [Panel Op.] 1980]. The United States Supreme Court in Stack

Vs. Boyle, 342 U.S. 1, 96 L. Ed. 3, 72 S. Ct 1 (1951) stated:

“The right to release before trial is conditioned upon accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of money subject to forfeiture serves as additional assurance of the presence of an accused.”

Standing alone, the importance of bail in preserving the right to a presumption of

innocence cannot be overstated. In fact, the Texas Court of Criminal Appeals has stated

in Ex parte Anderer, 61 S.W. 3d 398 (Tex. Crim. App. 2001):

“From the passage of the Judiciary Act of 1789 to the present Federal Rules of Criminal Procedure, Federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”

Article 17.15 of the Texas Code Criminal Procedure sets forth the general rules of fixing

the amount of bail by a magistrate, to wit:

“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate [EMPHASIS ADDED] or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules: 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.”

To further illustrate the importance attached to bail, in the case where a defendant

has posted bond under conditions imposed under Tex. Code Crim. Proc. Ann. art. 17.44

(discussed below) requiring home confinement, electronic monitoring and/or drug testing

and the defendant has violated a term and condition of the bond and a warrant is issued

for his arrest, he is nonetheless entitled to a have a new bond set. Ex parte Marcantoni,

2003 Tex. App. Lexis 3308 (unpublished). Presumably, the amount of money and

conditions of the new bond will reflect the fact that the defendant has violated the

conditions of the prior bond and will be more appropriately stringent to fulfill the

requirements of Article 17.15 (supra).

In view of the foregoing rules, the Texas Court of Criminal Appeals has held that

bail set by a magistrate at a figure higher than an amount reasonably calculated to fulfill

the constitutionally mandated purpose of ensuring the defendant’s presence at trial is

“excessive” under the Eighth Amendment to the United States Constitution and violative

of Tex. Code Crim. Proc. Ann. art. 17.15 (2). Ex parte Anderer, 61 S.W. 3d 398 (Tex.

Crim. App. 2001). See Article 1, §13 of the Texas Constitution.[3]

While the ability or inability of a defendant to make bail is a factor to be considered by the magistrate per Tex. Code Crim. Proc. Ann. art. 17.15 (4), it does not, alone, control in determining the amount of bail. Of necessity this must hold true otherwise the defendant himself/herself would, in effect, set for themselves the amount of a bond regardless of the other salient issues of public safety, etc. Ex parte Welch, 729 S.W.2d 306 (Tex. App. – Dallas 1987, no pet.). The Texas Courts of Appeal have interpreted Tex. Code Crim. Proc. Ann. art.

17.15 (5) (i.e. the future safety of a victim and the community) to require a magistrate

setting the terms and conditions of bail to consider whether a new offense was

committed by the defendant while out on bond in determining the bond conditions (i.e.

money amount and conditions). Ex parte Owens, 1997 Lexis 1593, (Tex. App. – Dallas

1997).

In addition to the foregoing considerations set forth in Tex. Code Crim. Proc.

Ann. art. 17.15, the magistrate may also consider the following additional factors: (1) the

accused’s work record; (2) the accused’s family and community ties; (3) the accused’s

length of residency; (4) the accused’s prior criminal record; (5) the accused’s conformity

with the conditions of any previous bond; (6) the existence of outstanding bonds, if any;

and (7) any alleged aggravating circumstances involved in the offense. Nguyen Vs. State,

881 S.W.2d 141, 143 (Tex. App. – Houston [1st Dist.] 1994, no pet.). Further, the amount

of bail must also be based upon the nature of the offense and the punishment for the

offense. Additionally, in cases involving illegal transportation and sale of drugs, a higher

bond may be required because of the nature of the offense. This follows because drug

transactions usually require large amounts of cash and the involvement of financial

backers willing to forfeit bonds that are not sufficient. Ex parte Isidro Gallegos, Jr.,

2003 Tex. App. Lexis 6972. Ex parte Willman, 695 S.W.2d 752 (Tex. App. – Houston

[1st Dist.] 1985, no pet.).

Texas courts have consistently held that the setting of bail is a matter resting

within the sound discretion of the trial court, and there is no precise standard for

reviewing its determination. Therefore, each case must be considered based upon its

peculiar facts on a case by case basis. Ex Parte Miller, 731 S.W.2d 825,827 (Tex. App. –

Fort Worth 1982, pet. ref’d). The established standard for appellate review of a

magistrate’s order setting bond is whether the magistrate “abused his/her discretion” in

the order for bail. Both the Texas Supreme Court in civil cases and the Texas Court of

Criminal Appeals in criminal cases apply the same test and standards to “abuse of

discretion, to wit: “The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Downer V. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-242 (Tex. 1985). Lyles V. State,

850 S.W.2d 497, 502 (Tex. Crim. App. 1993).

INSTANCES WHEN BAIL IS NOT REQUIRED

While the general rule is that a Municipal Court Judge and/or a Justice of the

Peace must set the conditions of bail in each case coming before their court, there are

some notable exceptions, to wit:

1. Warrants issued for parolees under Tex. Govt. Code §508.251 aka “blue

warrants” require the return of the parolee to the institution from which he/she was

released and no bail is permitted. This follows because §508.254 specifically authorizes

the confinement of the parolee until a parol panel makes its determination on whether the

parolee is to be returned to prison.[4] Therefore, when the Magistrate is confronted with an

arrestee showing a “parole hold” or a “blue warrant” no bond should be set.

2. As stated above, a defendant charged with a capital crime may or may not be

granted bail because of the obvious flight risk issue and public safety issues. See Article

1, §11 of the Texas Constitution (supra). See Tex. Code Crim. Proc. Ann. art. 1.07[5].

Nevertheless, the right to bail should not be denied to a defendant charged with a capital

crime because Tex. Const. art. 1, § 11 and Tex. Code Crim. Proc. Ann. art. 1.07 provide

that all prisoners are entitled to bail in capital cases except those charged with a capital

offense "when the proof is evident." For example, where no proof other than the

indictment was offered by the State and the prosecutor indicated to the court that there

was some question as to whether all the elements of capital murder could have been

proven the court was correct in setting bail. Ex Parte Cevallos, 537 S.W.2d 744 (Tex.

Crim. App. 1976).

3. When confronted with a “capias” warrant, the magistrate shall not set bail

because by its very nature the capias warrant acts as a writ of attachment for the body of

the defendant and requires any peace officer in Texas to arrest the person named in the

capias warrant and immediately bring him/her before the court that issued the capias

warrant.[6] Examples of common capias warrants encountered by Municipal Court Judges

and Justices of the Peace are:

a. traffic convictions where the Defendant has not paid the fines and

costs assessed;

b. child support contempt warrants issued because the defendant failed to

appear for trial in response to a show cause order;

c. probation revocation warrants issued upon by the trial court upon the

filing of a motion to revoke by the county probation department based

upon an alleged failure of a defendant to comply with his/her

probation terms.

Generally, magistrates confronted with capias warrants, should perform the magistration

required by Tex. Code Crim. Proc. Ann. art. 15.17 and inform the defendant which court

issued the capias warrant and generally advise the defendant that he/she will likely be

transferred to either the city or county jail where the court issuing the warrant is located.

CONDITIONS OF BAIL IN DRIVING WHILE INTOXICATED AND OTHER CASES

Effective September 1, 1995, the Texas Legislature mandated that magistrates

not only fulfill the requirements set forth under Tex. Code Crim. Proc. Ann. art. 15.17

(i.e. magistrate’s warnings) but require as a condition of bail that Defendants charged

with a subsequent intoxication offense (i.e. Driving While intoxicated, Driving While
Intoxicated with a Child Passenger, Flying While Intoxicated, and/or Boating While

Intoxicated) under Sections 49.04 through 49.06 of the Penal Code have installed within

thirty (30) days of their release on bond “a device that uses a deep-lung breath analysis

mechanism” aka “interlock device,” in to wit:

Art. 17.441. Conditions Requiring Motor Vehicle Ignition Interlock. (a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code [Emphasis Added]: (1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and (2) not operate any motor vehicle unless the vehicle is equipped with that device. (b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice. [Emphasis Added] (c) If the defendant is required to have the device installed, the magistrate shall require that the defendant have the device installed on the appropriate motor vehicle, at the defendant's expense, before the 30th day after the date the defendant is released on bond. (d) The magistrate may designate an appropriate agency to verify the installation of the device and to monitor the device. If the magistrate designates an agency under this subsection, in each month during which the agency verifies the installation of the device or provides a monitoring service the defendant shall pay a fee to the designated agency in the amount set by the magistrate. The defendant shall pay the initial fee at the time the agency verifies the installation of the device. In each subsequent month during which the defendant is required to pay a fee the defendant shall pay the fee on the first occasion in that month that the agency provides a monitoring service. The magistrate shall set the fee in an amount not to exceed $10 as determined by the county auditor, or by the commissioners court of the county if the county does not have a county auditor, to be sufficient to cover the cost incurred by the designated agency in conducting the verification or providing the monitoring service, as applicable in that county.

However, in order to preserve judicial discretion and thereby avoid a challenge similar to

that in Meshell V. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) wherein the Speedy

Trial Act, Tex. Code Crim. Proc. Ann. art. 32A.02, was declared unconstitutional and

void because it violated the separation of powers doctrine embodied within Articles I

§ II of the Texas Constitution[7] by Legislative branch impinging upon a constitutionally

mandated Judicial function of granting bail to defendants as set forth in Articles I § II of

the Texas Constitution (supra), the Legislature added the following language to the

statute:

(b) The magistrate may not require the installation of the device if the magistrate finds

that to require the device would not be in the best interest of justice. [Emphasis Added]

Thus, Tex. Code Crim. Proc. Ann. art. 17.441 preserves judicial discretion because even

though the statute seemingly mandates the installation of the interlock device, Article

17.441 (b) permits a judge not to require its installation if the magistrate finds that such

installation “. . . would not be in the best interest of justice.” Ex Parte Elliott, 950
S.W.2d 714 (Tex. App. – Fort Worth 1997).

When might the installation of an interlock device “not be deemed in the best interest of

justice” and be considered an instrument of oppression under Article 17.15(2) (supra) to

require the installation of an interlock device? Perhaps, when the underlying prior

conviction and the present offense do not involve the consumption of alcohol by the

defendant? More specifically, “intoxication” as defined under §49.01 of the Penal Code

includes within its penumbra both the taking into the body of alcohol and/or “drugs.”[8]

Therefore, it is entirely conceivable that an interlock device designed solely to detect the

presence of ethyl alcohol might be totally meaningless as a condition of bail for a

defendant “drug-user,” whose prior conviction and the present offense involve

intoxication resulting from the introduction of a legal drug and the defendant simply does

not consume alcohol and could thereby be deemed an “oppressive” condition of bail

under Tex. Code Crim. Proc. Ann. art. 17.15(2) (supra).

In similar situations, Tex. Code Crim. Proc. Ann. art. 17.44 might be useful as a

tool to a magistrate attempting to properly fulfill his/her duty to set bail in accordance

with Article 17.15 (i.e. Rules For Fixing the Amount of Bail) (supra), to wit:

(a) A magistrate may require as a condition of release on bond that the defendant submit to: (1) home confinement and electronic monitoring under the supervision of an agency designated by the magistrate; or (2) testing on a weekly basis for the presence of a controlled substance in the defendant's body [Emphasis Added]. b) In this article, "controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code.

For purposes of setting bail conditions, Article 17.44 (above) has a broad application to

any bail, whereas Article 17.441 seems applicable to only the second intoxication offense

of a defendant. Stewart v. State, 1998 Tex. App. Lexis 7337 (unpublished). However, the

Houston Court of Appeals in Ex parte Kevin Sells, 2000 Tex. App. Lexis 132

(unpublished), held in part that:

“Although article 17.441 mandates installation of the device for repeat offenders, it does not preclude its use in other circumstances [Emphasis Added]. The primary purpose of bail is to ensure the defendant’s presence in court at all proceedings. Ex parte Elliott, 950 S.W.2d 714, 716 (Tex. App. – Fort Worth 1997, no pet.). In considering whether installation of an ignition interlock was an unreasonable condition of bail, the Elliott court noted it is not necessary that an imposed condition relate directly to securing the defendant’s presence in court. It is sufficient if the condition indirectly increases the likelihood that the defendant will appear. The appellant bears the burden of demonstrating that the trial court abused its discretion by imposing an unreasonable condition.”

Additionally, Tex. Code Crim. Proc. Ann. art. 17.40 (a) provides as follows:

“(a) To secure a defendant's attendance at trial, a magistrate may impose any

reasonable condition of bond related to the safety of a victim of the alleged offense or

to the safety of the community [emphasis Added].

Therefore, a defendant charged even for the first time with one of the intoxication

offenses (i.e. Driving While intoxicated, Driving While Intoxicated with a Child

Passenger, Flying While Intoxicated, and/or Boating While Intoxicated) under Sections

49.04 through 49.06 of the Penal Code might be required to adhere to a curfew, electronic

monitoring, required to participate in drug treatment and testing, attend Alcoholics

Anonymous and/or Narcotics Anonymous meetings, install an interlock device and report

to a probation officer to show compliance with the conditions of bail. Each condition of

bail must be designed to further the reasonable purposes of securing the defendant’s

presence in court for trial and otherwise reasonably fulfill the rules for setting bail set

forth in Article 17.15 (supra). For example, if a defendant is arrested for driving while

intoxicated and it appears to the magistrate that the defendant is suffering from tremors

and general ill-health resulting from the withdrawals of alcohol or drugs, the magistrate

might consider putting reasonable restrictions on the defendant’s right to consume

alcohol, be outside of his/her home between the hours of 1:00 a.m. and 6:00 a.m., and

require that the defendant not drive a motor vehicle until he/she has had installed thereon

an interlock device.

Either way, the task of the magistrate setting conditions of bail is to ensure that it

can be shown that a bail condition imposed by the magistrate was rationally related to the

legitimate state objective of ensuring the defendant’s appearance at trial or generally to

protect the community. Stewart v. State (supra). Tex. Code Crim. Proc. Ann. art. 17.40

(a)(supra).

In line with the prevalent theme in Chapter 17 of the Code of Criminal Procedure

of setting bail terms and conditions with a view to protecting the safety of victims and the

community at large, Article 17.46 of the Code of Criminal Procedure referring directly to

cases of “stalking” under §42.072 of the Penal Code provides:

“(a) A magistrate may require as a condition of release on bond that a defendant charged with an offense under Section 42.072, Penal Code, may not: (1) communicate directly or indirectly with the victim; or (2) go to or near the residence, place of employment, or business of the victim, or near a school, day-care facility, or similar facility where a dependent child of the victim is in attendance. (b) If the magistrate requires the prohibition contained in Subsection (a)(2) of this article as a condition of release on bond, the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the defendant must maintain from the locations.”

It is incumbent upon the magistrate to specifically list the common street

addresses and minimum distances (e.g. “not come within 500 feet of the residence

located at 111 Bell Street, Dallas, Dallas County, Texas”). Lack of specificity may result in the condition being deemed unenforceable and great shame, humiliation, and embarrassment being heaped upon the magistrate making such an error if a victim is injured or killed. Logically, the magistrate, in the appropriate case, seeking to ensure the safety of a victim of stalking may also impose the other conditions specifically authorized by statute (i.e. home confinement, electronic monitoring, curfew) discussed above in Articles 17.40 and 17.44 of the Code of Criminal Procedure. Ex parte Tucker, 997 S.W.2d 713 (Tex. App. – Fort Worth, 1998)
CONCLUSION

The right to bail is a significant and valuable right granted to defendants by the

Texas Constitution. Magistrates, as guardians of that right, are charged on a case by case

basis with the awesome responsibility to balance the all-important presumption of

innocence in favor of the defendant against the right of the community and a victim to be

safe. Conditions of bail, without more, will generally pass constitutional examination if

they can logically be said to be rationally related to the all-important purpose of securing

the defendant’s presence at trial and providing reasonable protections for the victim and

the community at large.
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[1] Tex. Code Crim. Proc. Ann. art. 17.01: "Bail" is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.
[2] Article 1, §11 of the Texas Constitution: 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.
[3] Article 1, §13 of the Texas Constitution: “Excessive bail shall not be required . . .”
[4] Texas Government Code §508.254: (a) A person who is the subject of a warrant may be held in custody pending a determination of all facts surrounding the alleged offense, violation of a rule or condition of release, or dangerous behavior.
(b) A warrant authorizes any officer named by the warrant to take custody of the person and detain the person until a parole panel orders the return of the person to the institution from which the person was released.
(c) Pending a hearing on a charge of parole violation, ineligible release, or violation of a condition of mandatory supervision, a person returned to custody shall remain confined.

[5] Tex. Code Crim. Proc. Ann. art. 1.07: All prisoners shall be bailable unless for capital offenses [Emphasis Added] 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.
[6] Tex. Code Crim. Proc. Ann. art. 23.01: A "capias" is a writ issued by the court or clerk, and directed "To any peace officer of the State of Texas", commanding him to arrest a person accused of an offense and bring him before that court immediately, or on a day or at a term stated in the writ.

[7] “The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”
[8] Penal Code §40.1(2): "Intoxicated" means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, [Emphasis Added] a combination of two or more of those substances, or any other substance into the body;