Understanding Criminal Procedure and Bail in Texas

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Bail in Texas is meant to act as an assurance that a suspect of a crime will not flee if released from custody. The Eighth Amendment prohibits bail that is excessive, but excessive is not the same as unaffordable. Typically, the bail amount is high (where it is often unaffordable), so the defendant is tied to the jurisdiction and will appear at trial if they want their bail money back.

What is Bail?

Bail is a sum of money a defendant pays to be released from custody to remain in the community while their criminal matter is finalized. It is a form of pretrial release. 

Bail acts as a deposit to ensure a defendant attends their court hearings. A defendant posts bail by paying the required amount to the court. The court holds this money until the court hearing. 

If the defendant fails to attend a court date, they forfeit the money and may be sent back to jail. If a defendant complies with bail, the court returns their money at the conclusion of their case.

Bail Eligibility in Texas

No eligibility requirements exist as to whom may request bail. Any person who has been charged with a non-capital crime is entitled, in most situations, to bail. Capital crimes are those crimes punishable by death.

Most states that have a bail system have their own laws that may impact eligibility. Most states want to prevent violent offenders from returning to the streets until they are determined not to be a threat to the public and are not a flight risk. So, state and local laws may be more restrictive when the alleged crime is a violent one. For everyone else accused of a crime, bail should be set and granted.

What is the Difference between Bail and a Bond?

‘Bail' and ‘bond' are often used interchangeably. Both allow a defendant to be released from custody while their charges are pending, but there is an important distinction between them. 

As mentioned above, bail is the amount the judge sets so that you can be released from custody. You can pay this out of your own financial resources. If you don't have the cash, you can sell your car or other property to get the cash. You could also try to borrow the money from friends or family.

When you cannot come up with the cash on your own, you are still not out of luck. A bond acts as a guarantee, rather than a deposit. It's a promise made to the court by a third party, usually a bond company, to pay the bail amount on the defendant's behalf if they fail to attend court or breach another condition of their release. In return, the defendant pays the bond company a service fee, usually around 10 to 20% of the bail amount. 

Determining the Bail Amount in Texas

Some jurisdictions have preset, non-negotiable bail schedules for common offenses. This allows defendants to post bail directly from custody, without the need for a court hearing.

Otherwise, bail is decided by a judge or court officer. A bail hearing usually – but not always – occurs within 48 hours of a defendant being charged. 

When deciding bail, a judge will consider factors like:

  • The seriousness and circumstances of the allegations
  • The defendant's criminal history and risk of reoffending
  • The defendant's flight risk, including their ties to the community

Although there are guidelines, a judge can set any amount of bail they see fit, as long as it is not objectively excessive. 

Possible Outcomes of a Bail Hearing

Three possible outcomes of a bail hearing exist, and they are:

  1. The court releases the defendant without bail (on their own recognizance).
  2. The court grants bail, setting the amount the defendant is required to pay and other possible conditions. The defendant must comply with these conditions or may be taken back into custody. If the defendant cannot post bail, they will remain in custody, but they can also ask family or friends to help them. Alternatively, they may be able to engage a bail bond company to post the bail on their behalf.
  3. The court denies bail and the defendant remains in custody until their court hearing. When bail is denied, it is almost always because the defendant is a flight risk and/or a danger to the public.

Types of Bail Bond in Texas

There are different ways you can post bail bond, and these briefly described here are the most common in states that have a bail system.

  • Cash Bond. The cash bond is the most direct way to post bail. The defendant pays the full bail amount to the court in cash. Cash is most usually in the form of a check, but some courts will allow credit cards.
  • Federal Bail Bond. Defendants accused of federal crimes (like kidnapping, hate crimes, and white-collar crimes) must pay a federal bail bond in order to be released. Federal bail bonds are typically accompanied by higher fees and require additional collateral.
  • Immigration Bail Bond. Immigration bail bonds only apply in immigration cases. They work the same way surety bonds do, meaning a company promises to pay if the defendant fails to show up in court. The only real difference is that immigration bail bonds may carry higher bail amounts than surety bail bonds.
  • Property Bond. A property bond involves property you or your family own. The defendant or family member puts up the property instead of cash to cover the bail. If the defendant fails to appear in court, the property is seized.
  • Surety Bond. A surety bond refers to third-party bond companies that promise to pay the defendant's bail if they fail to appear in court.

The Role of a Criminal Defense Attorney in San Antonio and Bail

When it comes to bail, the stakes could not be higher. If you are denied bail, you will remain in custody until your matter is heard. Likewise, if you are granted but cannot post bail, you will remain in custody. An experienced defense attorney can help you thoroughly prepare for your bail hearing to give you the best chance of release. When bail is set too high, our defense lawyer at y may be able to file a motion for reconsideration, arguing the bail amount is excessive and proving why that is.

Further, many criminal defense attorneys deal with bail bond agents on a regular basis. At y, we will assist defendants in contacting trustworthy agents and will facilitate communications and transactions between the defendant and the agent. We understand how important it is to obtain release on bail if not on your own recognizance because it allows you to focus better on your defense.

Maldonado Law Group, PLLC Is Here for You

At Maldonado Law Group, PLLC, we focus on Municipal, Family, Business, Criminal, Estate Planning, Real Estate, Probate, Civil, and DWI Defense and we are here to listen to you and help you navigate the legal system.

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Maldonado Law Group, PLLC is committed to answering your questions about law issues in Texas. We offer a free 15-minute consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.