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  • Brian Foley

How do they pick a bond amount in a criminal case?

When someone is arrested for a criminal offense many people believe that they go to jail until the time of the trial. This is not the way that the criminal justice system is set up. In fact the United States Constitution in the Bill of Rights prohibits excessive bail under the 8th Amendment. The text of the 8th Amendment is as follows:


"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."


So what is bail? The purpose of bail is to assure the appearance of the defendant at later hearings regarding a criminal case and to protect the community from violations of the law. If the government could simply hold anyone accused of a crime in jail until a jury trial had taken place then the criminal justice system would be primed for abuse based on political reasons. Imagine if you could remove an opponent on a political issue from the public and jail them without recourse until their trial? The freedoms given to us by God and secured in the Constitution would be meaningless if they could be taken away while awaiting a trial.



So how do they determine an amount of bail in a particular case? And who is they? Who determines the bail amount?


A magistrate judge, county court judge, or district court judge determines the amount of bail required in a criminal case in Texas. A prosecutor can make a suggestion but ultimately the decision is entirely in the discretion of the judge. They make this decision on a case by case basis after consulting the Code of Criminal Procedure 17.15 which outlines a number of factors for the court to consider:

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.

The first factor means that the bail shall be high enough that the defendant will have an incentive to show up to his trial. "The undertaking" means the defendant's appearance in court. Ex parte Vance, 608 S.W.2d 681, 683 (Tex.Crim.App.1980). The second factor merely outlines to the judge that bail should not be used as a punishment in and of itself. The third factor allows a judge to set higher bond in a felony case or a case involving a greater risk to public safety. If you were caught with less than 2 ounces of marijuana then you are likely to get a lower bail than if you were caught with 14 kilos of cocaine and a fully automatic assault rifle. The fourth factor relates to the individual circumstances of a defendant. A defense lawyer can give a judge proof on the matter of how much money the defendant has available to make a bond. If someone doesn't have much money that doesn't mean they should be held in jail, and just because someone has a lot of money that doesn't mean they should be immediately released. A judge will not necessarily set bond that the defendant can pay, but it is one of the factors that should be considered by a judge when setting bail. Finally the future safety of a victim of the alleged offense and the community must be taken into consideration when the judge sets the bail.


The bail bond provisions in the Texas Code of Criminal Procedure can make you feel like you have been convicted of a crime before you have been found guilty by a jury. But this is the nature of bail in general. The 8th Amendment's protections against unreasonable bail could be what keeps you from spending the entirety of your criminal case behind bars. So if you or a loved one finds themselves having to pay to make a bond, thank the founders of our nation that you are able to fight the case from the free world. If you or a loved one is stuck in jail on a high bail you should hire a lawyer to file a writ of habeas corpus to challenge the bail that has been set or to reduce the amount to something which is affordable to the defendant and still complies with the other factors of Article 17.15 of the Code of Criminal Procedure.


Bail may be denied in few circumstances. Texas Constitution Article 11a states that a District Court Judge alone may deny bail in one of the following circumstances:


  1. The defendant is charged with capital murder and proof is evident that there will be a conviction and a death sentence.

  2. The defendant has been to prison on two separate prior occasions and is charged with a felony.

  3. The defendant is on bail for a felony that has been indicted by the grand jury and is accused of another felony that is committed while on bail.

  4. The defendant is accused of a felony involving a deadly weapon and has been previously convicted of a felony offense.

  5. The defendant is accused of committing Murder, Aggravated Assault, Aggravated Kidnapping, Aggravated Robbery, Sexual Assault, Aggravated Sexual Assault, or Indecency with a Child while on probation or parole.

A denial of bail under this part of the Texas Constitution should only be in effect for 60 days at which time the crime should be tried to a jury under the rules set forth.


Bail could also be denied if a defendant has been released on bond and had conditions of bond imposed against him and violated a condition of bond related to the safety of the victim or the community. An example of this might be someone charged with Assault Family Member and while on bond they had conditions placed on them that said they may not engage in acts of violence towards the alleged victim. If a defendant is arrested for a new assault on the same victim then a court could forfeit the bond until trial.


You may also be released without the requirement of paying any bail. This would be called a personal recognizance bond or (PR) bond. These are frequently given out for offenses like possession of marijuana and driving while license invalid.

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