When you get arrested you have the right to see a judge within 24 to 48 hours (depending on the offense). However, arresting officers can “trick the system” and change that to be more like 48 to 72 hours. In essence, they can add almost an entire day to your initial jail time after arrest before you can bond out. Here’s how they trick the system.
The Texas Code of Criminal Procedure provides that a person who is arrested without a warrant must be released on bond not later than 24 hours post arrest for a misdemeanor or 48 hours post arrest for a felony if the magistrate has been unable to determine whether probable cause exists to believe the person has committed an offense. (See link below.)
You’re probably thinking this sounds like legal mumbo jumbo and wondering why I’m bringing this up. This often applies when you are arrested by the cops, like for driving while intoxicated (DWI/DUI), and you are taken to jail and the arresting cop must file a document called a probable cause affidavit (PC Affidavit). The magistrate, or judge on duty, needs this document in order to determine whether there is enough information to believe a crime has been committed and if so, at what amount to set your bail.
The judge cannot set your bail or bond amount without this information and this is how the cops “punish you” by waiting to file this document. You would think that if there is no warrant for your arrest, (warrants require a PC Affidavit to issue them) and a cop hauls you to jail and accuses you of a crime, that they at least would have to leave paperwork with the sheriff and/or judge before leaving you there, right? Nope!
This issue comes up time and time again where a client has been arrested and calls my office for a jail release and is prevented from being released because there is no PC Affidavit on file. This generally happens because the officer drops said client off at the jail, goes back on duty or home if it is the end of his shift, and then waits until the beginning of his next shift to file the PC Affidavit. He knows he has “24 hours to do it” (or 48 if a felony charge) and therefore the client sits in jail unable to be released.
So for example, a person may be arrested and go into jail at 12:00am. The cop may be working a shift from 10pm-6am. He fails to provide the PC Affidavit to the jail until after he goes back on duty at 10 pm the next night. So under that scenario, the arrested person sits in jail from midnight, all day long and generally is there for more than 24 hours before he or she is released. (It can generally take 30 minutes to 6 hours to be released after a person’s bond is posted, but the bond can be posted by an attorney pretty quickly after arrest and booking if there is a PC Affidavit on file.)
Fortunately, many officers seem to drop off the PC Affidavit paperwork at the time the person is booked into jail. However, I frequently see the “delay” in cases where the cop was very unhappy with my client and waited to file the paperwork, effectively preventing the client from being able to post bond and be released.
See CODE OF CRIMINAL PROCEDURE, TITLE 1. CODE OF CRIMINAL PROCEDURE, CHAPTER 17. BAIL;