The Fastest Way to Get Released and Not Miss Your Next Day at Work.
By Jeff Peek, Partner
A couple of years ago I got a call at around 11pm at night from someone desperate to get her husband out of jail. He had been arrested for suspicion of D.W.I. and was booked into the Travis County jail. Her husband just happened to be an attorney and had a hearing the next morning in court and needless to say it would be a big problem for him if he just failed to show up, not to mention embarrassing to his reputation, damaging to the relationship with his client, and potentially putting him at odds with the Judge and possibly risking being held in contempt, or worse getting sanctions. At the very least it would have jeopardized his case and stature with all involved. Inevitably word would get out why he missed his court date, and then the reputation he spent a lifetime cultivating would take serious hit, that could potentially be irreversible in the eyes of some, including clients and referral sources affecting his livelihood. Was it possible to get him out of jail in time for his morning hearing? What steps could be taken to maximize his chances of getting out fastest?
Most attorneys know that there are 3 ways* of getting released from jail after an arrest:
(1) Paying a cash bond (i.e. bond is set at $3,000 and you show up to the jail with $3,000 cashier check and deposit it with the Sheriff;
(2) Paying a Surety Bond, aka Bail bond company (Most bond companies in Austin charge around 10% of the amount of the bond and ask for a guarantor to sign insuring that the Accused will show up to his court dates (and on really big bonds as for the guarantor to have collateral in the amount of the bond to insure the bond amount in case accused fails to show up to court); and
(3) Qualify for a Personal Recognizance Bond
*Now there are some exceptions and nuances to those 3 (i.e. Cash Deposit Personal bond hybrids; an arrest on a warrant for a Sentence to be served, Child support arrests, etc) but for the purposes of this article we will focus on those 3.
So what do you do? If you are an attorney not familiar with Criminal Defense, and only know the basics mentioned above, what do you do? Who do you call? An Attorney? A bail bond company?
What everyone needs to know (especially attorneys who will inevitably be called by a friend one day when their husband/child/friend gets arrested) is that nobody can get out of jail on a new arrest until (1) a bond is set by a magistrate, and (2) nobody can get out jail until they have been magistrated,
(with the exception being if an attorney waives the magistration process for his client). Now if it was an arrest on a warrant, most of the time the bond was set when the warrant was issued. So what does all that mean ?
Well a magistrate sets bond based on what they read in the arrest affidavit, aka Probable Cause Affidavit. Remember the reason the magistrate has to read the probable cause affidavit is not only to determine what the bond she be set at, but principally to determine if sufficient probable cause existed to justify the arrest, indicating it was a legal arrest. It’s not that often, but magistrates can and do reject some arrest affidavits because what the officer reported did not justify them making an arrest (insufficient evidence of a crime) or in other cases violations of the constitution (illegal search and seizure).
So if the judge needs the arrest report to set the bond and then magistrate, when does the officer turn that in? That is the million dollar question. The answer is: It depends on each officer, on each arrest.
Some officers prefer to write out their report immediately after turning over the inmate to the Sheriff for booking, since in Austin, the jail booking facility has a special room where officers can type out and turn in their reports (and even have senior officers their to review the affidavits before they go before the judge for review). In most simple cases (simple drug possession, DWI, etc) the report is simple. In other more complicated cases (multiple witnesses, evidence which was gathered that may be more loosely connected to the accused) the officer may need to take time in drafting it and have it reviewed by senior supervising officers, and sometimes even the District Attorney’s office. Which means it won’t get turned in until much later in the process.
Additionally there are some officers that if they make an arrest early in their shift prefer to get back out on the streets to patrol instead of being delayed in the arrest review office typing up their report. These officers come back at the end of their shifts or at the beginning of their next shift to turn in the arrest affidavit, which means the arrested individual could be jail up to 24-48 hours before he can post a bond (any bond).
State law mandates that a probable cause affidavit be turned in and that the magistrate determine that probable cause exists to make the arrest within 24 hours of arrest/booking on a misdemeanor, and 48 hours on a felony
(Texas Code of Criminal Procedure Sec. 17.033). If the probable cause affidavit is not turned in in time for the Judge to ascertain probable cause (or it is rejected for lack of probable cause) then the accused must be released from custody.