Bail in Texas is meant to act as an assurance that a suspect of a crime will not flee if released from custody. The Eighth Amendment prohibits bail that is excessive, but excessive is not the same as unaffordable. Typically, the bail amount is high (where it is often unaffordable), so the defendant is tied to the jurisdiction and will appear at trial if they want their bail money back.
At The Law Offices of Steven Clary, our criminal defense lawyer in your County will negotiate the bail amount so that even if it is high, it can still be obtained. Having the ability to be out on bail during a pending criminal case can help relieve some of the stress and let you go about your daily life while we work on your behalf to get you the best outcome possible. Contact us at (972) 722-0887 to schedule a free phone consultation and to find out how we can help your criminal case.
What is Bail?
Bail is a sum of money a defendant pays to be released from custody to remain in the community while their criminal matter is finalized. It is a form of pretrial release.
Bail acts as a deposit to ensure a defendant attends their court hearings. A defendant posts bail by paying the required amount to the court. The court holds this money until the court hearing.
If the defendant fails to attend a court date, they forfeit the money and may be sent back to jail. If a defendant complies with bail, the court returns their money at the conclusion of their case. In Texas, after you conclude the case, you will get your money back less 5% (up to a $50 maximum) in most counties. You do save money by being able to put the money up yourself.
Bail Eligibility in Texas
No eligibility requirements exist as to whom may request bail. Any person who has been charged with a non-capital crime is entitled, in most situations, to bail. Capital crimes are those crimes punishable by death.
Most states that have a bail system have their own laws that may impact eligibility. Most states want to prevent violent offenders from returning to the streets until they are determined not to be a threat to the public and are not a flight risk. So, state and local laws may be more restrictive when the alleged crime is a violent one. For everyone else accused of a crime, bail should be set and granted.
However, if you are arrested on a probation violation after being convicted, you may be given a bond amount, but you are not constitutionally eligible. If you are given a bond, it will usually be about double of what your original bond was before you were put or probation.
What is the Difference between Bail, Bond, and Surety Bond?
‘Bail' and ‘bond' are often used interchangeably. Both allow a defendant to be released from custody while their charges are pending, but there is an important distinction between them.
As mentioned above, bail is the amount the judge sets so that you can be released from custody. You can pay this out of your own financial resources. If you don't have the cash, you can sell your car or other property to get the cash. You could also try to borrow the money from friends or family.
When you cannot come up with the cash on your own, you are still not out of luck. A bond acts as a guarantee, rather than a deposit. It's a promise made to the court by a third party, usually a bond company, to pay the bail amount on the defendant's behalf if they fail to attend court or breach another condition of their release. In return, the defendant pays the bond company a service fee, usually around 10 to 20% of the bail amount.
Another name for getting a bond through a bond company is termed getting a Surety Bond. If a Judge has said the bail can be cash or surety, that means you can pay your own bail or go through a bond company. If the Judge says cash only bail, then you have to come up with cash and can't go through a bond company.
Determining the Bail Amount in Texas
Some jurisdictions have preset, non-negotiable bail schedules for common offenses. This allows defendants to post bail directly from custody, without the need for a court hearing.
Otherwise, bail is decided by a judge or court officer. A bail hearing usually – but not always – occurs within 48 hours of a defendant being charged.
When deciding bail, a judge will consider factors like:
- The seriousness and circumstances of the allegations
- The defendant's criminal history and risk of reoffending
- The defendant's flight risk, including their ties to the community
Although there are guidelines, a judge can set any amount of bail they see fit, as long as it is not objectively excessive.
Note that in some counties, the courts will allow a defendant to "sign" the cash money given the Sheriff's office for bail over to his attorney to help get started on his case. This is termed assigning the right to the cash over to the attorney. This would allow, for example, a defendant to put up $5000 to bond out and then sign that money over the attorney he hires. This helps the defendant because he does not have to come up with $5000 for the bail money and additionally $5000 for his attorney; the same $5000 has a dual purpose. You cannot, of course, do this with a surety bond since the money you paid the bond company is for their service in guaranteeing your bail and getting you released. When the case is concluded, the attorney will go the county or district clerk and get his money. There is a risk to the attorney because he loses the bond money if the defendant skips town and disappears. Call us for more information on using the bond money to pay towards the attorney fee.
Possible Outcomes of a Bail Hearing
Three possible outcomes of a bail hearing exist, and they are:
- The court releases the defendant without bail (on their own recognizance).
- The court grants bail, setting the amount the defendant is required to pay and other possible conditions. The defendant must comply with these conditions or may be taken back into custody. If the defendant cannot post bail, they will remain in custody, but they can also ask family or friends to help them. Alternatively, they may be able to engage a bail bond company to post the bail on their behalf.
- The court denies bail and the defendant remains in custody until their court hearing. When bail is denied, it is almost always because the defendant is a flight risk and/or a danger to the public.
- The court denies bail and increases the amount. I have seen bond hearings result in bond increased from $20,000 to $100,000.
Types of Bail Bond in Texas
There are different ways you can post bail bond, and these briefly described here are the most common in states that have a bail system.
- Cash Bond. The cash bond is the most direct way to post bail. The defendant pays the full bail amount to the court in cash. Cash is most usually in the form of a check, but some courts will allow credit cards.
- Federal Bail Bond. Defendants accused of federal crimes (like kidnapping, hate crimes, and white-collar crimes) must pay a federal bail bond in order to be released. Federal bail bonds are typically accompanied by higher fees and require additional collateral.
- Immigration Bail Bond. Immigration bail bonds only apply in immigration cases. They work the same way surety bonds do, meaning a company promises to pay if the defendant fails to show up in court. The only real difference is that immigration bail bonds may carry higher bail amounts than surety bail bonds.
- Property Bond. A property bond involves property you or your family own. The defendant or family member puts up the property instead of cash to cover the bail. If the defendant fails to appear in court, the property is seized.
- Surety Bond. A surety bond refers to third-party bond companies that promise to pay the defendant's bail if they fail to appear in court.
The Role of a Criminal Defense Attorney in your County and Bail
When it comes to bail, the stakes could not be higher. If you are denied bail, you will remain in custody until your matter is heard. Likewise, if you are granted but cannot post bail, you will remain in custody. An experienced defense attorney can help you thoroughly prepare for your bail hearing to give you the best chance of release. When bail is set too high, our defense lawyer at The Law Offices of Steven Clary may be able to file a motion for reconsideration, arguing the bail amount is excessive and proving why that is.
Further, many criminal defense attorneys deal with bail bond agents on a regular basis. At The Law Offices of Steven Clary, we will assist defendants in contacting trustworthy agents of bond companies and will facilitate communications and transactions between the defendant and the agent. We understand how important it is to obtain release on bail if not on your own recognizance because it allows you to focus better on your defense.
Contact a Criminal Defense Lawyer in your County Today
A criminal defense attorney in Texas can offer you advice based on your specific circumstances, gather the relevant information needed for a bail hearing, and help you make arrangements if you are unable to personally post bail. Contact The Law Offices of Steven Clary today by filling out our online form, texting us at 972-814-7318, or calling us at (972) 722-0887 to schedule a free phone consultation.