BAIL ‑- RIGHT OF SHERIFF TO GO BEHIND JUSTICE OF THE PEACE'S APPROVAL OF BAIL BOND FOR PURPOSE OF EXAMINING SUFFICIENCY OF SURETIES
1. The justice of the peace issuing a warrant is the proper justice of the peace to approve the bail bond fixed by him.
2. A sheriff has no authority to examine a recognizance as to its sufficiency which has been approved by the justice of the peace fixing the bail.
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March 31, 1955
Honorable Arnold R. Zempel
Everett, Washington Cite as: AGO 55-57 No. 50
You ask the following questions:
Can a justice of the peace of the same county, other than the one issuing the warrant, approve the bail bond?
May the sheriff go behind the justice of the peace's approval of the bail bond and examine the recognizance as to its sufficiency?
Our answer to both questions is "No".
You cite RCW 10.19.040 which, insofar as it is applicable to your questions, provides:
[[Orig. Op. Page 2]]
"The justice of the peace who committed the person, or the judge of the superior court to which he is held to answer, may admit to bail in the amount required, and approve the sureties.
"Every officer authorized to execute a warrant in a criminal action may take the bail bond, and justify and approve the sureties." (Emphasis supplied)
Also, to be considered in connection with your question are RCW 10.04.030 and RCW 10.04.040 dealing with the justice court procedure on the return of a warrant issued by the justice. The first section provides that
"On the return of any warrant issued by him, * * *" (Emphasis supplied)
the justice may, under the second section
"* * * accept money as bail for the appearance of persons charged with bailable offenses, * * *"
A critical examination of RCW 10.19.040 and the sections from which it is derived will disclose that it is primarily concerned with situations involving committing magistrates, while RCW 10.04.030 and 10.04.040 deal with justice court procedure generally in criminal actions of which the justice has jurisdiction. Although your questions do not indicate in which capacity the justice of the peace was acting, we are of the opinion that in both instances it seems clear that the words "the justice of the peace who committed the person" and "any warrant issued by him" refer to the particular justice who initiated the proceeding.
Consequently, we conclude that the justice of the peace issuing a warrant is the proper justice to approve the bail bond fixed by him.
Although your second question is predicated on an affirmative answer to the first question, we are disposed to make a general observation that the sheriff [[Orig. Op. Page 3]] has no authority to go behind any approval of any bond by any judicial officer for the purpose of examining the recognizance as to its sufficiency.
The power to fix bail is a judicial prerogative which RCW 10.04.040 specifically states
"* * * shall be determined by the court in its discretion, and may from time to time be increased or decreased as circumstances may justify. * * *"
We trust the foregoing will prove helpful to you in the disposition of your problem.
Very truly yours,
Assistant Attorney General