New Attorney General Opinion Interprets Portion of SB 6- Who Can Deny Bail?



On August 8, 2023, the Texas Attorney General's office issued Atty Gen. Op. AC-002.  The Attorney General had been asked to interpret article 27.027 of the Texas Code of Criminal Procedure which was enacted as a part of SB 6.  

The article applies when a defendant is charged with committing an offense that is a felony while they are currently out on bail in a pending case for another offense which is also a felony.  If the two cases are in different counties, then SB6 requires notification to be sent to the other court.  If the two offenses are in the same county, then only the judge over the first court can magistrate the defendant on the new charge.

The statute contains an exception which allows the court to designate another court to perform the magistration.

The question that the Attorney General's office was asked to address was if the court designated to perform the magistration on behalf of the district court is not also a district court judge would the magistrate or the justice of the peace have the authority to deny bail.  The issue dates back to an earlier opinion which took the position that only a district court judge could deny bail.  These authorities stem from the fact that the Texas Constitution in its Bill of Rights, limits who may deny bail providing the following:

                [a]ny person . . . accused of a felony less than capital in this State,
                committed while on bail for a prior felony for which he has been
                indicted . . . after a hearing, and upon evidence substantially showing
                the guilt of the accused . . . of the offense committed while on
                bail . . . may be denied bail pending trial, by a district judge in this
                State[.]

Tex. Const. art. I, Sec. 11a (a).

The Texas Attorney General's office concluded article 27.027 of the Texas Code of Criminal Procedure did not change the constitutional requirements.  This means that a district court judge may designate another court to conduct the magistration that the district court is required to perform.  However, if the judge in the designation is not also a district court judge, then the designated judge possesses only the authority to set bail and not the authority to deny bail.

If you would like to see the Attorney General Opinion CLICK HERE.

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