By Collin County Criminal Defense Lawyer Jeremy Rosenthal
A felony bond in Collin County, Texas, is set by a magistrate judge in all cases (unlike misdemeanor cases where there may be a schedule of bonds for certain situations).
Previously, I’ve discussed when a person is entitled to a bond and when they’re not. Today I’ll discuss what to do when the bond which is set is ridiculously high and your loved one is jailed.
Texas Code of Criminal Procedure 17.15 guides the setting of bail and it reads as follows:
“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
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 main problem I generally see with magistrates is the highly subjective nature of the statute. Some magistrates get what I call “sticker-shock” when they see a person just arrested for a serious felony like aggravated assault, sex offenses, or even DWI 3rd. They hear and see only the police initial version of the facts and then the judge slaps a $100,000 bond on the Defendant without regard to the person’s income, local family ties, or lack of criminal record.
What Can be Done
After an excessive bond is set an attorney can file a Writ of Habeas Corpus (or a motion for bond reduction – same thing only it’s done after an indictment has been handed down) with the proper court of jurisdiction. This accomplishes several important things. First is that it will usually allow a different judge — normally the elected district judge — to begin to exercise control in the case. Second is it allows a person to trigger an evidentiary hearing where they can (1) learn underlying information about the case from the prosecutor; and (2) present evidence that a lower bond is sufficient to secure the defendant’s appearance in Court.
A Hearing to Lower Bond
Once the lawyer files a motion for a felony bond reduction, it should be set for a hearing with the district judge. The State is only entitled to reasonable notice for certain serious offenses listed in the code of criminal procedure.
At the hearing the State will generally present as little evidence as possible to avoid giving the defendant additional discovery or allowing the defense a free-crack at one of their witnesses. There are informal rules, so often the prosecutor may simply let the judge read the offense report. The defense can put on evidence of the financial capabilities of the defendant and/or his family and show the court the accused isn’t a flight risk nor a risk to the community.
Though it sounds simple, you have to have an experienced criminal defense attorney guide someone through this process. Criminal defendants can badly mis-judge these proceedings and tend to lose vision of the bigger picture of the case to get out of jail quickly. Though someone always wants to get out of jail quickly, it has to be weighed against the possibility of giving the prosecutor evidence they can spin against them at a later point in the case.
Depending on the facts the judge can drastically lower the bond in any case or remove difficult restrictions.
*Jeremy Rosenthal is a criminal defense attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly. Communications and posting to blog is not considered privileged nor confidential. Contacting the attorney through this forum does not constitute an attorney client relationship.