Opinion
December 8, 1998
8 BONDS — Surety 16-A CRIMINAL LAW PROCEDURE 57 JUSTICES OF THE PEACE
Justices of the Peace, throughout their territorial jurisdiction, may fix bail for offenses not capital or necessarily punishable by hard labor. Furthermore, that once formal charges are filed and the case is allotted to a section of the court the Justice of the Peace no longer has jurisdiction over the matter.
Honorable Kevin J. Centanni Justice of the Peach 1942 Williams Boulevard, Suite 1 Kenner, Louisiana 70062
Honorable Eugene Fitchue Justice of the Peace 405 George Street Avondale, LA 70094
Dear Judges Centanni and Fitchue:
Your request for an Attorney General's Opinion was forwarded to me for research and reply. You asked the following: What is the scope of the Justice of the Peace's bail authority, as set forth in the Code of Criminal Procedure articles 333 and 342, and more specifically, how do the new policies of the District Attorney's Office of Jefferson Parish correlate to such authority?
Louisiana Code of Criminal Procedure Article 333 provides that Justices of the Peace, throughout their territorial jurisdiction, shall have the authority to fix bail in "cases not capital or necessarily punishable at hard labor." Paul D. Connick, Jr., District Attorney for the Parish of Jefferson, informed you that "a Justice of the Peace is lawfully authorized to fix bail only in those cases not capital and not necessarily punishable at hard labor," pursuant to LA C.Cr.P. art. 333. Harry Lee, Sheriff for the Parish of Jefferson, stated that "Parish Court Judges do not have authority to fix bail in cases outside their territorial jurisdiction." The above excerpts from Mr. Connick and Mr. Lee's correspondences are consistent with LA C.Cr.P. art. 333. See Attorney General Opinion No. 86-126 (LA C.Cr.P. art. 315 is now LA C.Cr.P. art. 333).
In summary, as a Justice of the Peace you are only authorized to set a bond in non-capital cases that are not necessarily punishable at hard labor that are within your territorial jurisdiction, and then only if no bond previously has been set by a District Court Judge or magistrate.
Additionally, Louisiana Code of Criminal Procedure Article 342 states, in pertinent part:
The court having trial jurisdiction over the offense charged, on its own motion or on motion of the state or defendant, for good cause may either increase or reduce the amount of bail, or require new or additional security.
Connick further stated that, "once a charge has been accepted for prosecution and allotted to a division of court, only the Judge to whom the case has been allotted may adjudicate any matter regarding the bond of the defendant in that case," pursuant to LA C.Cr.P. art. 342. The above statute was explained in State v. Dupor, 623 So.2d 720, 721 (La.App. 4 Cir. 1993). It was held that "any motion to increase or reduce bail must be brought before the magistrate who set the original bond, as he retains exclusive jurisdiction over such matters until a formal charge is filed and the case allotted to a section of the court." See Attorney General Opinion No. 98-15.
In summary, once a bond is set, formal charges are filed, and the case is allotted to a section of the court, you are not lawfully authorized to alter that bond in any way.
In order to be consistent with existing statutory provisions, it is the opinion of this office that Justices of the Peace, throughout their territorial jurisdiction, may fix bail for offenses not capital or necessarily punishable by hard labor. Furthermore, once formal charges are filed and the case is allotted to a section of the court the Justice of the Peace no longer has jurisdiction over the matter.
I hope this information is helpful to you. If you need further assistance in this or any other matter, please do not hesitate to contact us.
Sincerely,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: __________________________ JAMES L. PIKER ASSISTANT ATTORNEY GENERAL
JLP:nap
Date Received:
Date Released:
JAMES L. PIKER ASSISTANT ATTORNEY GENERAL
Office of the Attorney General State of Louisiana
Opinion No. 86-126 April 9, 1986
JUSTICES OF THE PEACE . . . . . . . 50
R.S. 13:2584
Justices of the peace have authority to fix bail and discharge on recognizance persons arrested for offenses not capital or necessarily punishable by hard labor.
Honorable T.M. McBride, III Judge Division "A" Thirty-Fourth Judicial District Chalmette, Louisiana 70043
Dear Judge McBride:
Your request for the opinion of this office has been forwarded to the undersigned for disposition. As I appreciate it, your question concerns the authority of justices of the peace (1) to fix bail in non-capital cases, (2) to discharge on recognizance persons arrested by the sheriff upon warrant of the district judge for offenses not capital or necessarily punishable by hard labor. As you correctly noted in your letter, Louisiana Code of Criminal Procedure Art. 315 provides that justices of the peace, throughout their territorial jurisdiction, shall have the authority to fix bail in "cases not capital or necessarily punishable at hard labor."
LSA R.S. 13:2584 clarifies:
C. They shall have criminal jurisdiction as committing magistrates only, and shall have the power to bail or discharge, in cases not capital or necessarily punishable at hard labor, and may require bonds to keep the peace.
The statutory language clearly indicates that justices of the peace have authority to bail or discharge individuals who are arrested within the ward or parish constituting "their territorial jurisdiction."
Your inquiry, however, raises another question. Does this authority extend to those instances where a person is arrested by the sheriff upon warrant of a district judge?
In measuring the authority of justices of the peace, it is necessary to consider the provisions in our law which set out the rights of an accused to bail and/or discharge. Article 1, § 18 of the Louisiana Constitution establishes that "before and during trial, a persons shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great." This Section implicitly connects the right to bail with the before-trial presumption of innocence. Viewing the above-cited statutes in light of the constitutional guarantee of Art. 1, § 18 permits the inference that justices of the peace are authorized to facilitate the exercise of the accused's right to bail so long as the accused is within the territorial jurisdiction of the Justice of the Peace court.
Code of Criminal Procedure Art. 230.1 provides in pertinent part:
A. The sheriff or law enforcement officer having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein. The defendant shall appear in person unless the court by local rule provides for such appearance by telephone or audio-video electronic equipment.
B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail. (Emphasis added)
That the article as written calls for the prompt presentation of an accused before "a judge" suggests that any judge who has territorial jurisdiction would be appropriate for the purposes of the article, including the determination of the amount of bail.
In State v. Chaney, 384 So.2d 442 (La. 1980), the court considered the interpretation and application of Art. 230.1 and held that the article "had to be given effect as written." Strictly construing the wording of the article, then, it is the opinion of this office that a justice of the peace has authority to fix bail in all cases brought before him through arrest within his jurisdictional area for offenses not captial or necessarily punishable by hard labor.
This authority would extend to persons arrested by the sheriff upon warrant of a district judge. Code of Criminal Procedure Art. 232, relative to arrests by out-of-state peace officers for offenses committed out of state, provides that such officers "shall, without unnecessary delay, take the arrested person before a judge of the parish in which the arrest was made, . . . . If the judge determines that the arrest was lawful he shall, subject to the rights of bail as stated in Art. 271, commit the person arrested to jail . . . If the judge determines that the arrest was unlawful he shall discharge the person arrested." (emphasis added) This broad authorization to judges to bail or discharge out-of-state offenders arrested within the court's jurisdiction warrants the inference that the same authority would apply to the treatment of in-state offenders arrested within the court's jurisdiction.
Article 336 of the Code of Criminal Procedure specifically addresses release on recognizance and offers additional support for the conclusions drawn above:
A. A person in custody may be released by order of the court on his personal bail undertaking without the necessity of furnishing a surety, without meeting the requirements of Article 324 for a personal surety, and without depositing special security under Article 333.
This section establishes the general authorization for release on recognizance. Read together with R.S. 13:2584 cited above, the reasonable conclusion may be drawn that justices of the peace are authorized to release on recognizance in cases not capital or necessarily punishable at hard labor.
Article 336 goes on to establish a procedure for conditional release of recognizance relative to traffic charges pending in other parishes.
C. A person in custody for a criminal offense, for whose arrest a warrant of arrest has been issued in another parish for a traffic offense other than an offense defined in the Louisiana Criminal Code may be released by a judge issuing the warrant of arrest or by a judge of a court having criminal jurisdiction where he is in custody, as provided in Paragraph A of this Article, on the condition that he shall appear and surrender himself before the judge issuing the warrant. The judge may order such bail and release by telephone or other means of communication. (Emphasis added)
Thus the statute specifically provides for release on recognizance of traffic offenders arrested on out-of-parish warrants conditioned upon the accused's promise to surrender himself before the judge who issued the warrant. It is inferred that so long as a justice of the peace has criminal jurisdiction over such an offender, he is empowered to act in accordance with Art. 336(A) in regard to cases not capital or necessarily punishable at hard labor.
A re-examination of the applicable statutes indicates that (1) Justices of the peace have authority to bail or discharge in cases not capital or necessarily punishable at hard labor (R.S. 13:2584) throughout their territorial jurisdiction. (C.Cr.P. 315). (2) This authorization extends to include the bail or discharge of such offenders who are arrested on warrants issued outside the state (C.Cr.P. 232), and inferentially to arrests on warrants issued by a district judge (C.Cr.P. 232, 336). These conclusions are consistent with the apparent legislative intent to empower judges and, in their more limited capacity, justices of the peace to facilitate the prompt bail or discharge of any person arrested in their jurisdiction who merits such treatment, in compliance with the dictates of the Louisiana Constitution. In keeping with this intent and the statutes cited above, it is the opinion of this office that justices of the peace, throughout their territorial jurisdiction, may fix bail or discharge on recognizance persons arrested by the sheriff upon warrant of the district judge for offenses not capital or necessarily punishable by hard labor.
I hope this information is helpful to you. If you need further assistance in this or any other matter, please do not hesitate to call on this office.
Sincerely,
William J. Guste, Jr. Attorney General
By: Rene Salomon Assistant Attorney General
Office of the Attorney General State of Louisiana
Opinion No. 98-15 April 1, 1998
8 Bonds 56 Judges La. C.Cr.P. art. 342 La. C.Cr.P. art. 338
This opinion clarifies the Louisiana law on bond setting and reduction, and sets forth that, under La. C.Cr.P. art. 338, bond reduction orders must be in writing when bond reduction hearings are mandatory under La. C.Cr.P. art. 342.
Mr. C.J. Cazes Chief of Police Plaquemine City Police Department P.O. Box 329 Plaquemine, LA 70765
Dear Mr. Cazes,
Your request for an Attorney General's Opinion was forwarded to me for research and reply. You asked four questions, which I will answer in order. Your first question is as follows:
When City Court and District Court judges set bonds, can the bonds be reduced by another Judge without having a hearing? Louisiana Code of Criminal Procedure Article 342 addresses this question. It states, in pertinent part:
The court having trial jurisdiction over the offense charged, on its own motion or on motion of the state or defendant, for good cause may either increase or reduce the amount of bail, or require new or additional security. State v. Dupor, 623 So.2d 720, 721 (La.App. 4 Cir. 1993), clarified La. C.Cr.P. Art. 342 by holding that "any motion to increase or reduce bail must be brought before the magistrate who set the original bond, as he retains exclusive jurisdiction over such matters until a formal charge is filed and the case allotted to a section of the court." Therefore, it is the opinion of this office that once the court with trial jurisdiction determines the amount of the bond, only that judge can reduce it.
Your second question asks whether a bond reduction hearing is mandatory. Again, La. C.Cr.P. Art. 342 addresses your question. It states:
in a parish with a population in excess of four hundred ninety thousand, the district court shall hold a contradictory hearing prior to the modification of the bail order.
Because the population in Plaquemine Parish does not exceed this amount, a bond reduction hearing is not necessary.
Your third question is . . .
Can the bond be reduced over the telephone verbally by a judge or is it necessary for the judge to put something in writing, dated and signed by that judge, before the bond can be reduced by the Police Department?
Louisiana Code of Criminal Procedure Article 338 states "An order fixing bail shall be in writing, specify the amount and the type of the bail, and shall be signed by the magistrate." Therefore, it is the opinion of this office that a reduction of bail is an order fixing bail that must be in writing and signed by the magistrate.
Your fourth and final question is . . .
Can the Police Department require the judge to put his reduction request in writing in order to protect us from acting on inaccurate information? The response to this question is the same as the response to your third question. La. C.Cr.P. art. 338 requires that the bail order be in writing.
I hope this opinion has adequately addressed your question. If this office may be of further assistance, please do not hesitate to contact us. With warmest regards, I remain
Sincerely,
Richard P. Ieyoub Attorney General
Robert L. Odinet Assistant Attorney General