HB 2448- Passed with No Opposition, Vetoed by the Governor

 

In November 2016, Senator Perry filed SB 4 which was referred to the Texas Ban on Sanctuary Cities.  The purpose of the bill was to discourage Texas cities from declaring that they were a sanctuary for people who were in the United States without authorization.  The bill also contained certain penalties if a Texas city decided to become a so called "santuary city" anyway.

The original bill did not address or have any provision in the bill that addressed bail.  The original bill can be reviewed by CLICKING HERE.  The bill garnered a lot of debate in the Senate.  The version of the bill that passed the Senate was a much larger bill that it was originally.  But the final Senate engrossed version of the bill still did not have any provision that impacted bail.  You can see the version of the bill that passed the Senate by CLICKING HERE.  

When SB4 reached the House it was amended in committee to include the following language:

SECTION 4.01.  Article 17.16, Code of Criminal Procedure, is
	amended by amending Subsection (a) and adding Subsection (a-1) to
	read as follows:
	(a)  A surety may before forfeiture relieve the surety of the
	surety's undertaking by:
	(1)  surrendering the accused into the custody of the
	sheriff of the county where the prosecution is pending; or
	(2)  delivering to the sheriff of the county in which
	the prosecution is pending and to the office of the prosecuting
	attorney an affidavit stating that the accused is incarcerated in:
	(A)  federal custody, subject to Subsection
	(a-1);
	(B)  [in] the custody of any state;[,] or
	(C)  [in] any county of this state.
	(a-1)  For purposes of Subsection (a)(2), the surety may not
	be relieved of the surety's undertaking if the accused is in federal
	custody to determine whether the accused is lawfully present in the
	United States.

The speculation was that the amendment was added to the bill by a Democrat in the hopes that it would bring out the Texas Bail Industry to oppose the bill.  It was thought that this was an attempt by the Democrats to find partners to oppose the larger bill.  

Originally, the author of the amendment agreed to remove the amendment.  But the amendment was not removed when the bill was voted out of committee.  The author next agreed to remove the amendment with a floor amendment when the bill reached the floor of the House.  However, there were so many floor amendments filed regarding the bill that the House ultimately cut off debate further floor amendments as debate streached well into the early morning hours on the day it was considered by the House.  The House cut off further debate of floor amendments before the agreed floor amendment to remove the above language was reached.

Consequently, when the bill was ultimately passed into law, the ban on sanctuary cities in Texas also contained a limitation on the use of 17.16 affidavits.

A 17.16 affidavit is generally filed when a defendant is out on bail and is arrested on a new charge.  The surety notifies the sheriff where the defendant is in custody.  Once the sheriff verifies the incarceration, the surety is discharged from liability and a hold and warrant is issue for the return of the defendant.  Also, the surety is responsible for the costs of returning the defendant.

The language added by the sanctuary cities bill is imprecise and poorly drafted.  The counties in Texas have not been consistent in its interpretation.  The language says that a surety may not file a 17.16 affidavit when a defendnat is in ICE custody to determine his imigration status.  However, the defendant remains in ICE custody after their immigration status is resolved.  Therefore, some counties continue to allow sureties to files 17.16 affidavits and others do not allow sureties to file 17.16 affidavits when a defendant is in ICE custody.

This legislative session, HB 2448 was filed by Representative Canales.  The bill proposed repealing the limitation of the use of 17.16 affdavits that was added by SB4 in 2017.

The bill passed the House and the Senate with no opposition.  On June 18, 2021, Governor Abbott vetoed HB 2448.

In a proclamation regarding the veto, the Governor stated:

During the 85th Legislature, I signed Senate Bill 4 into law to help secure the border.  I have fought--and continute to fight--to protect all Texans from dangerous cartels, smuggleers, and human traffickers.  Because the federal government has failed to act during the ongoing border crisis, Texas has deployed numerous resources to combat the dangers faced in the border communities.  House Bill 2448 would go in the wrong direction, reversing a good change made by Senate Bill 4 and facilitating the release of potentially dangerous criminals from jail.  That is an objective I cannot support.

 You can see the Governor's proclamation by CLICKING HERE.

While the Governor appears to have good intentions in his proclamation, the veto of HB 2448 actually has the opposite impact than he states.  When a surety posts a bond for a defendant, many times the defendant or the defendant's family will misrepresent whether a defendant is in the United States properly.  Therefore, the posting of the surety bond is what authorized the defendant for release.  Then once released, the defendant is turned over to ICE custody for possible deporation.  The 17.16 affidavit filed by the surety is the document that notifies the sheriff and the court that the defendant has been placed in ICE custody and a warrant is needed to get the defendant returned to the county's custody.  Without the use of the 17.16 affidavit the defendant may be deported out of the country and evade prosecution by the State of Texas and the victim does not receive justice.

Consequently, the limitation of the use of 17.16 affidavits for defendants who are put in the custody of ICE has had the opposite impact than anticipated.  This is the reason that HB 2448 proposed repeal of that previous amendment to article 17.16 of the Texas Code of Criminal Procedure.

Until this situation changes, sureties will have to continue to rely upon alternative ways to seek a warrant to return the defendant to custody to ensure that the defendant can be prosecuted for the crime charged and the victim can have justice.