Everyone arrested in Texas has to be magistrated by a judge. This is a right provided for by the Constitution and the actual Code of Criminal Procedure. “Magistration” is the process in which a judge informs the accused what he has been charged with by the arresting officer, the legal rights to which the individual has, and the amount at which the judge has decided to set his bond.
A police officer in Texas has to file a probable cause affidavit (aka P.C. Affidavit) in which he justifies the legal reason (called probable cause) he had to believe a crime had been committed or was about to be committed. The Magistrate (judge) then reviews this arrest affidavit to verify that it meets the legal standard for being a legal arrest (finding there was probable cause to make the arrest). If the judge agrees the officer had probable cause, the judge will sign the affidavit agreeing it meets to the legal standard for the criminal case to proceed. At this point the arrest has been upheld but no charges have been formally filed. Charges are filed either by the prosecutor filing a charging document called an information or by the prosecutor indicting the accused.
If the charge the officer is accusing is a misdemeanor, the police officer has 24 hours from the time the accused is booked into the jail to file his P.C. Affidavit with the judge. If the charge the officer is accusing is a felony, the police officer has 48 hours from the time the accused is booked into the jail to file his affidavit. If the affidavit is not filed within these time periods, the arrested person must be released by the jail. If the arrest was made by a previously signed arrest warrant, probable cause was already previously determined and the inmate merely need be given his warnings and admonitions of his rights by the magistrate.
Anyone charged with a crime in Texas should have an experienced Austin criminal defense attorney to represent them as soon after the arrest is made as possible. A skilled lawyer may be able to convince the magistrate that no probable cause existed, or could possibly help prevent a costly bail amount and beginning working on a successful case from the very beginning. This attorney can also help the accused get release on bond as soon as possible.
If you are being arrested, know that Texas courts consider five main things when setting the amount of bail:
- the amount should be high enough “to give reasonable assurance” that the person will appear for his or her court dates,
- the power to set bail may not be used to oppress others,
- the judge must consider the nature of the crime charged and the circumstances under which it was allegedly committed,
- the ability of the charged person to pay bail should be taken into account, and
- the future safety of others must be considered (which includes consideration of the criminal history of the individual).
There are 4 types of bonds one may potentially seek:
- Personal Bond – a person may qualify for this on their own, or an attorney may be needed to convince a judge to let the person out on this type of bond.
- Surety Bond, aka Bail Bond – Bail bond companies can be hired to post the bond, and they charge on a case by case basis due to the risk, but usually will charge near 10% of the bond amount.
- Cash Bond – The person can pay the bond in its entirety in cash. The county will hold the bail money to assure the person returns for all of his or her court dates. If the person does not miss any court dates, the bail money is returned at the end of the case (minus a small transactional fee). If the person misses a court date without permission from the judge, the bail money may be forfeited, a warrant for their arrest is issued, and other penalties may be imposed including a lawsuit seeking to keep the entire cash bond amount on deposit (Note you can also be sued for missing court – called a bond forfeiture- on a personal bond or surety bond as well).
- Cash Deposit Personal Bond – This is a hybrid bond between a personal bond and cash bond (not practiced by every county) in which a judge can make one of the conditions of a personal bond that the accused deposit a certain amount with the County.
The best advice is to immediately call an experienced criminal defense attorney like those at Peek & Toland before doing anything else so that we can advise you on the fastest way to be released as well as protect your rights from the beginning.