For most State drug offenses, a defendant is entitled to bond pending resolution of the case. Texas Code of Criminal Procedure Article 17.15 states the factors that courts must consider in setting a bond:
- The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
- The power to require bail is not to be so used as to make it an instrument of oppression.
- The nature of the offense and the circumstances under which it was committed are to be considered.
- The ability to make bail is to be regarded, and proof may be taken upon this point.
- The future safety of a victim of the alleged offense and the community shall be considered.
Texas appeals courts have held that other factors can be considered. These factors include the defendant’s work record, community ties, family ties, length of residency, prior criminal history, conformity with any prior bonds, and the existence of any outstanding bond.
The trial court must set a reasonable bond. If the bond is unreasonable, then the defendant can appeal. Some courts, such as those in Harris County, typically set a bond amount that is double the street value of the drugs. These are frequently successfully appealed.
Defendants usually hire a bonding company to post the bond. Bonding companies typically require that the defendant pay ten percent of the total bond amount, and put up some collateral to make sure the defendant does not jump bond (e.g., fail to appear in court). For example, if the trial court sets a $20,000 bond, a bonding company would charge $2,000 and require the remaining bond amount to be secured by property, such as a house. A defendant should not just hire any bonding company. Like any business, some bonding companies are reputable and some are not.
In setting a bond, a court may impose certain bond conditions over and above the amount of bond a defendant must post to be released. A defendant charged with drugs, for example, may be required to turn in his passport, have an electronic monitor or curfews, and take drug tests, depending on the seriousness of the offense. An expert defense lawyer will often be able to successfully negotiate minimal conditions of bond so that a defendant is not unduly restricted while his case is pending.
Unlike in State court, defendants facing drug charges in federal courts are usually presumptively detained under 18 U.S.C. 3142. This means they do NOT receive a bond in a federal court.