Special Session Starts July 8th- Will Bail Reform Be on the Agenda?

 

The Texas Governor has announced a Special Session will begin on July 8, 2021, but has not announced the agenda. Will bail reform be on it? Although as of today, the Governor has not announced the topics for the Special Session, there are many rumors in the wind and the Governor strongly has hinted that bail reform may be included.

If bail reform is on the agenda, it is anticipated that the House and the Senate may start where they left off which would be the conference committee report regarding HB 20 that passed the Senate and was to be considered in the House several hours before the deadline only to not be reached when the Democrats abandoned the House floor over the Election Integrity Bill.

Therefore, it is important to understand what was up for consideration in the conference committee report.  What follows is a summary of the report:

Summary of Conference Committee Report for HB 20

Section 1- Referred to as the Damon Allen Act

Section 2-  Amends Article 1.07 of the Texas Code of Criminal Procedure right to bail. 

Any person shall be eligible for bail unless denial is expressly permitted by the Texas Constitution or by Chapter 17.

Section 3- Amends Article 17.02 of the Texas Code of Criminal Procedue.  The Definition of Bail Bond is changed regarding cash bonds to address the deduction of a fee from the cash bond upon return.  Cannot be done with the defendant is found not guilty after trial or appeal.  Also, sets out situation where the fee can be refunded by request.

Section 4-

A.        Creates 17.021. Public Safety Report System. 

• must state the requirements for setting bail pursuant to 17.15
• incorporate a form that must be signed by the person setting bail and that lists each factor provided by article 17.15 and requires certification on the form that the person considered each of those factors
• provide information on the eligibility of the defendant for a personal bond 
• provide in summary form the criminal history for the defendant
• provide information regarding any required or discretionary bond conditions
• collect information on the bail decision
• The office shall provide access to the public safety report system to the appropriate official in each county at no cost.
• The public safety report system may not
• be the only item relied upon by a judge or magistrate; or
• include a score, rating or assessment of a defendant’s risk or make any recommendation regarding the appropriate bail for the defendant.
• OCA shall electronically collect each form completed under this section and shall use these forms to collect data regarding the number of defendants for whom bail was set during the preceding state fiscal year, including:
• the number of each category of offense
• the number of personal bonds
• the number of monetary bonds.
• By December 1^st of each year, the office shall submit a report containing the data collected from the public safety report system to the governor, the lt. Governor and speaker of the house and presiding officers of the stating committees of each house of the leg.

B.      Creates 17.022 of the Texas Code of Criminal Procedure- Public Safety Report.  A magistrate considering the release on bail charged with a Class B misdemeanor or any higher category of offense shall order that

• the personal bond office, if one exists, shall prepare a public safety report with respect to the defendant; and
• shall be provided to the magistrate as soon a practicable but not later than 48 hours after the defendant’s arrest.
• cannot order the sheriff’s department to prepare report unless the sheriff’ consents.
• A magistrate may personally prepare a public safety report before or while making a bail decision, using the public safety report system.
• The magistrate shall consider the public safety report before setting bail.

C.     Creates 17.023- Authority to release on bail in certain cases.  This section applies to:

• defendant charged with a felony;
• misdemeanor punishable by confinement.
• These defendants may be released only by a magistrate who is
• A resident of this state and one of the counties served by the magistrate; and
• in compliance with the training requirement of article 17.024
• The magistrate is not eligible to release on bail one of these defendants if
• removed from office by impeachment by the supreme court, the governor, by a tribunal, or by the legislature’s abolition of the magistrate’s court.
•  has resigned from office after receiving notice of a formal proceeding.

C.      Creates 17.024- Training.  OCA shall in consultation with the court of criminal appeals develop or approve training courses regarding a magistrates duties including duties with respect to setting bail in criminal cases. 

            Courses must include:

•  an 8 hour initial training course; and
• a two hour continuing education course.

            OCA shall

•  provide a method of certifying that a magistrate has successfully completed a training course required and has demonstrated competency of the course content in a manner acceptable to the office.

            A magistrate is in compliance with the training requirements

• if not later that the 90^th day after the date the magistrate takes office, the magistrate successfully competes the course and completes the two hour course in each subsequent state fiscal biennium; and demonstrates competency in a manner acceptable to the office.
• Existing magistrates will be considered in compliance if they complete the training course not later than June 1, 2022.  This section expires January 1, 2023.
• Courses developed or approved may be administered by the Texas Justice Court Training Center, the Texas Municipal Courts Education Center, the Texas Association of Counties, the Texas Center for the Judiciary or a similar entity.

D.      Creates 17.027.  Release on Bail of Defendant charged with offense committed while on bail.  If the defendant is charged with committing an offense.  Only the court before whom the case for the previous offense is pending may release the defendant on bail.  The notice of the charge must be given promptly to that court and must be presented within the time required by 15.17.

E.       Creates 17.028 Bail Decision.  Without unnecessary delay but not later than 48 hours after the defendant is arrested, a magistrate shall order after individualized consideration of all circumstances and of the factors required by Article 17.15 (a) that defendant shall be released on a personal bond without or without conditions or on a monetary bond with or without conditions or denied bail in accordance with the Texas Constitution and other law.

Lease restrictive conditions, if any and the personal bond or monetary bond necessary to reasonable ensure the defendant’s appearance in court as required and the safety of the community, law enforcement and the victim of the alleged offense.

There is a rebuttable presumption that bail, conditions of release or both bail and conditions of release are sufficient to reasonably ensure the defendant’s appearance in court as required and the safety of the community, law enforcement and the victim of the alleged offense.  For the purposes of rebutting the presumption, the court shall not be required to consider testimonial evidence.

A judge may not adopt a bail schedule or enter a standing order related to bail that is inconsistent with this article or authorize a magistrate to make a bail decision for a defendant without considering each of the factors in Article 17.15.

•  A defendant who is denied bail or is unable to give bail in the amount required by any bail schedule or standing order shall be provided the warnings described by article 15.17.
•  A defendant who claims to be unable to give bail as described may file a sworn affidavit using a form that includes many factors set out in the statute.
• A hearing on the affidavit is required within 48 hours of arrest.
• If the magistrate does not reduce the bond, then the judge shall issue written findings of fact supporting the bail decision.
• The courts are required to report to OCA any hearings that were not held within 48 hours.
•  If there is a delay, then the court is required to notify the defendant’s counsel of the delay.
• May enter an order as to the mental competence of the defendant.
• This article does not require the filing of any affidavit before a magistrate consider the defendant’s ability to make bail.

Section 5.  Amends article 17.03 of the Texas Code of Criminal Procedure

• This is the section that says only the court with jurisdiction over the case can grant a PR bond for a list of offenses.  The following offenses are deleted:
• Capital Murde
• Aggravated Sexual Assault
• Deadly Assault on Law Enforcement or Corrections Officer, Member or Employee of Board of Pardons and Paroles or Court Participant.
• Continuous Sexual Abuse of Young Child or Children
• Continuous Trafficking of Persons.

• A new list is created.  Defendant’s charged with the following offenses cannot be released on a PR bond:
• Murder
• Capital Murder
•  Trafficking of persons
• continuous trafficking of persons
• continuous sexual abuse of young child or children
• Indecency with a child
• assault if the offense if a felony of the second degree under (b-2) of Section 22.01 (a) (1).
• Aggravated assault
• aggravated sexual assault.
• repeat violation certain court orders or conditions of bond in family violence, child abuse or neglect, sexual assault or abuse, indecent assault, stalking or trafficking case.
• continuous violence against the family.
• taking or attempting to take weapon from peace officer, federal special investigator, employee or official of correctional facility, parole officer, community supervision and corrections department officer or commissioned security officer.
•  aggravated promotion of prostitution
• compelling prostitution
• sexual performance by a child

• Not entitled to a PR bond if they are on bail or community supervision and are charged with a new crime involving:
• assault
• deadly conduct
• terroristic threat
• disorderly conduct involving firearm
• any crime offense punishable as a felony.

Section 6-

A.      Creates 17.0501 DPS training related to statewide telecommunications system

B.      Regulations for Charitable Bail Organizations- substantially the same as in Senate Bill

• Does not apply to:
• nonprofit corporation that is for religious worship.
• a charitable bail organization that files a bail bond not more than 3 defendants in any 180 day period.
• Must file an affidavit designating the individuals authorized to pay bond on behalf of the organization
• May only pay bail for indigent defendants who are indigent and who are not charged with an offense under article 17.03 (b-2) (1) and have not previously been convicted of an offense in article 17.03 (b-2) (1).
• the organization must report on the 10^th day of each month to the sheriff of each county in which the organization files an affidavit a report listing each defendant from who the organization paid a bail bond in the preceding calendar month including the name of the defendant, the cause number, the county in which the charge is pending; and any dates on which the defendant has failed to appear for court.
• If out of compliance, the charitable bail fund cannot post bonds.
•  The sheriff may suspend the organizations ability to pay bail bond for one year if the sheriff determines the organization has paid bonds in violation of this article.
• Chapter 22 applies to bonds posted by bail funds.
• a bail fund cannot accept a premium.

Section 7.- Amendments to Article 17.15 of the Texas Code of Criminal Procedure

• (a) (1) bail and associated conditions hall be sufficient (deleted sufficient high) to give reasonable assurance that the undertaking will be complied with.
• (a) (3) the nature of the offense must now consider whether the offense is listed in Article 17.03 (b-2) (1) and whether the offense involves violence directed against a peace officer.
• (a) (4) the ability to make bail shall be considered (instead of “is to be regarded”).
• (a) (5) safety of the victim includes law enforcement.
• (a) (6) the criminal history for the defendant including information obtained through the statewide telecommunications system maintained by DPS and through the public report system developed under article 17.021 shall be considered including any acts of family violence, other pending criminal charges and any instances in which the defendant failed to appear in court following release on bail.
• (a) (7) citizenship.
• added section (b) regarding constitution requirement.

Section 8-

Amendment to article 17.20 of the Texas Code of Criminal Procedure (Bail in Misdemeanor regarding the taking of bail during the term of the court or in vacation.  Before the sheriff, peace officer or jailer may take bail, they shall obtain the defendant’s criminal history record.  If the defendant is charged with an offense listed in article 17.03 (b-2) (1) or has previously been convicted of an offense listed in Article 17.03 (b-2) (1), the sheriff and others may not set the amount of bail, but may take the defendant’s bail in the amount set by the court.

Section 9-

Amendment of article 17.22 of the Texas Code of Criminal Procedure regarding taking bail in Felony.  Adds the same limitations set out in section 8 regarding misdemeanors.

Section 10-

A.      Creates article 17.50 of the Texas Code of Criminal Procedure regarding providing notice of conditions. (This has been pushed by Murr for several sessions).

• within a business day after the magistrate issues an order imposing a condition of release the clerk shall send a copy to the attorney for the state, and either, the chief of police if the defendant resides in a municipality, or the sheriff of the county.
• There can be a delay only if the clerk lacks information necessary to ensure service.
• If the order prohibits approach to a child care facility or school, the clerk shall send a copy to the child care facility and the school.  It can be sent electronically or some other manner.
• The magistrate shall provide written notice to the defendant of the condition of release and the penalties for violating a condition.
• The magistrate shall make a record of the notice.
• OCA shall promulgate a form for use by a magistrate in providing notice.
• The form must include the relevant statutory language from the provisions o this chapter under which a condition of release on bond may be imposed on a defendant.
• No notice is required if OCA sets up a process of providing electronic delivery to the parties.        

B.      Creates article 17.52 of the Texas Code of Criminal Procedure requires OCA to develop a statewide procedure for the refund of cash bonds (it says monetary bond), but it clearly refers to cash bonds.  Refunding to the person on the receipt and the application of a monetary bond paid by a person other than a defendant and the possible application of the cash bond amount to the defendants’s outstanding court costs and fee.

Section 11-

A.      Article 66.102 of the Code of Criminal Procedure is amended to include the requirement that reporting must include for a offender released on bail whether a warrant was issued for any subsequent failure of the offender to appear in court.

Section 12-

A.      Section 27.005 regarding education requirements in the Local Government Code is amended to include the 8 hour and 2 hour classes shall be included in the total number of hours currently required for judges.

Section 13-

A.      Creates section 17.0351 of the Texas Government Code regarding information that must be reported monthly to OCA.  Must include:

• number of defendant who posted bail.
• number of defendants released on bail who subsequently failed to appear or violated a condition of release and
• the number of defendant released on bail who committed an offense while released on bail or community service.
• this information shall be posted by OCA on a publicly assessable place on the agency’s internet website without disclosing personal information about the defendant, judge or magistrate.

When parts of the law go into effect.

Section 14-  Public safety report by December 1, 2021 and can be sooner.

Section 15-  As soon as practicable OCA shall develop the forms required by no later than December 1, 2021 and can be sooner.

Section 16-  Changes made in the law apply only to a person who is arrested on or after the effective date of this act.  Anyone arrested before that date is governed by the law in effect at the time of the arrest.

Section 17-  In general the bill goes into effect December 1, 2021.  The change set out in 17.15 (b) only goes into effect if the constitutional amendment passes.  Section 17.021 and 17.024 and Section 3, 14, and 15 take effect September 1, 2021.

 If you would like to view the conference committee report CLICK HERE.