“How long am I going to be in jail?” is, by far, the most common question that I get from people who are in jail after having been arrested under suspicion of having committed an offense. (An understandable question, to be certain.) If the Accused can make bail, then the answer is “as soon as bail is posted.”
Bail
“Bail” is a security given by the Accused person that he will appear in court and answer for the accusation brought against him. CCP art. 17.01. The purpose of bail is secure the presence of the Accused in court. See Trummel v. State, 529 S.W.2d 528, 529-30 (Tex.Crim.App. 1975). Suppose bail is set at $2,500. This amount is set to secure the Accused’s presence in Court—the thought is that, after having paid money to be released from jail, the Accused will likely appear in Court, versus losing his money, and, ultimately his freedom (after a warrant is issued for his failure to appear in Court.)
Setting Bail
But who decides what the amount of bail will be, and when? After a person is arrested, the person who has custody of the Accused shall “without unnecessary delay, but not later than 48 hours after the person is arrested” take the person before a magistrate. CCP art. 15.17(a). A bail bond is generally set at this time. See CCP art. 17.05. (Note: there are some situations where a judge does not have to set bond.
So, after bail has been set, the Accused can post bond either himself (i.e. a cash bond) or through a bond company. Once bond is posted, the Accused is released from jail.
Where Accused Cannot Make Bail
However, even though a judge or magistrate has set bond, the Accused is often unable to make bail. Luckily, the Code of Criminal Procedure provides an answer to “how long am I going to be in here?” even where the Accused cannot make bail.
Simplified, Article 17.151 provides that an accused person must be released either on a personal recognizance bond, or by reducing the amount of bail to an amount the Accused is able to pay if the State is not ready for trial within a certain period of time.
State Not Ready For Trial
Article 17.151 says that the Accused “must be released on a personal recognizance bond or by reducing the amount of bail required, if the State is not ready for trial” within a specified time. How do you know if the State is ready for trial? “Readiness for trial should be determined by the existence of a charging instrument.” Ex parte McNeil, 772 S.W.2d 488, 489 (Tex.App.—Houston [1st Dist.] 1989, original proceeding.) So, if the State has filed a complaint (on misdemeanors) or an indictment (on felonies), the State is presumed to be ready for trial.
How Long Does the State Have to Get “Ready”?
The amount of time the State has to get ready for trial depends on the level of the offense. This makes sense, as felonies generally require more investigation and preparatory work than misdemeanors on the State’s part. The clock on the amount of time begins to run from the date the Accused is jailed on the offense.
The State has 90 days from the date the Accused was jailed on a felony to file and indictment.
The State has 30 days from the date the Accused was jailed on a Class A Misdemeanor to file a complaint.
The State has 15 days from the date the Accused was jailed on a Class B misdemeanor to file a complaint.
The State has 5 days from the date the Accused was jailed on a Class C misdemeanor to file a complaint.
If the State fails to timely file an information or complaint during the time-table specified above, the personal recognizance/lowered bail provision of 17.151 kicks in.
Exceptions
Article 17.151 does not apply if (1) the accused is already serving a sentence for another offense; (2) the accused is being detained on another accusation for which the time period has not run (e.g. Accused arrested for Class B offense and for Felony offense, Accused is not entitled to release in 15 days); (3) the Accused is incompetent to stand trial (the period in which Accused was declared to be incompetent does not count towards deadline); and (4) if the Accused is being detained for a violation of the condition of a previous release related to the safety of the victim of the alleged offense or to the safety of the community.
Lower Bail or Personal Recognizance Bond?
A “personal recognizance bond” permits the Accused person to be released from jail on his promise to appear in court—no money required. More often than not, if the Accused is unable to make bail, having spent a week or so in jail has not aided his financial situation, so a personal recognizance bond—and not simply lowering the amount of bail—is the proper remedy.