Bail and bail bonds are a part of the legal process in Texas and many people who find themselves as a part of its process may ask basic questions, like: Who sets bail in Texas?
Here is some legal terminology that actually answers the question of who sets the bail in Texas.
A bail bond is entered into either before a magistrate, upon an examination of a criminal accusation, or before a judge upon an application under habeas corpus; or it is taken from the defendant by a peace officer or jailer if authorized by Article 17.20, 17.21, or 17.22.
The duties of arresting peace officers and of magistrates are detailed in the Code of Criminal Procedure. Article 14.06 provides that peace officers must take the accused before a magistrate when a warrantless arrest is made pursuant to one of the exceptions to the warrant requirement. Such exceptions are stated in Chapter 14. Similarly, Article 15.17 requires that individuals arrested pursuant to a warrant also be brought before a magistrate. Presentation before a magistrate must take place without unnecessary delay, but in no event more than 48 hours after the person is arrested.
Generally, a magistrate is involved in the preliminary stages of a criminal proceeding. Such proceedings involve adults accused of criminal offenses. Because the juvenile justice laws in Texas are civil proceedings, the preliminary stages of a child being taken into custody are governed by Title 3 of the Texas Family Code, not Article 15.17 of the Code of Criminal Procedure. In this sense, children who are taken into custody are not “magistrated” in the same manner as adults. Magistrates are, however, frequently involved in the procedures governing the taking of a confession by a child.
The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.
The writ runs in the name of “The State of Texas”. It is addressed to a person having another under restraint, or in his custody, describing, as near as may be, the name of the office, if any, of the person to whom it is directed, and the name of the person said to be detained. It shall fix the time and place of return, and be signed by the judge, or by the clerk with his seal, where issued by a court.
Peace officers could be: Sheriffs, constables, marshals, city police officers, and other public officials whose duty it is to enforce and preserve the public order, as long as they are authorized to do so.