Are Bondsmen the Cause of Increasing Crime?

 

    In Harris County, law enforcement blames bad bail reforms for increasing crime.  The district attorney's office has issued a report agreeing.  You can see the report HERE.  Crime Stoppers has compiled a list of over 150 individuals who have been killed  by people some of whom were already out on bond for murder.  This has lead some to argue that in Harris County you get one free murder before you will be denied bail for murder.  The district attorneys' office blames the courts for not denying bail and the judges blame the district attorneys' office for filing motion to set high bail, but not setting the motion for a hearing.  The only thing that everyone can agree on is that crime is increasing.  Recently, the commissioners court passed a resolution asking the Harris County Bail Bond Board to pass a local rule regulating what bondsmen charge arguing that the bondsmen's failure to charge a high enough fee was the cause of increased crime 

Four years ago, Harris County settled a lawsuit entitled Odonnell v. Harris County and the settlement fundamentally broke the criminal justice system in Harris County.  We know this because the District Attorney’s office has issued a report stating that crime has increased, in part, because of the misdemeanor bail reform that was adopted causing recidivism (the number of crimes committed by the same defendant) to increase.  The Odonnell case was allowed to go forward because the Honorable Lee Rosenthal ruled that the county court at law judges were county policy makers when they established a bail schedule; and therefore, we not exempt from being sued under 42 USC §1983.  As a result of this ruling the case proceeded and was ultimately settled.  In the settlement the county tied the hands of judges.  The misdemeanor judges are required to release a defendant on a $100 PR bond without ever seeing a judge unless they are charged with one of seven carve out misdemeanor offenses.  Additionally, a judge cannot issue a failure to appear or a warrant for the arrest of the defendant until the defendant has missed court more than three times.  

On January 7, 2022, the United State Court of Appeals for the Fifth Circuit issued an en banc opinion in Daves v. Dallas County (an opinion from all the judges on the court of appeals made up of approximatly 16 judges).  In this opinion it specifically reversed Judge Rosenthal’s holding in Odonnell regarding the county court at law judges.  The Fifth Circuit held that county court judges were state actors when they set bail; and therefore, were exempt from being sued in lawsuit brought pursuant to 42 USC §1983.  This is an important decision because if Judge Rosenthal lacked jurisdiction, the court should never have entered the consent decree and would lack the authority to hold any judge in contempt for failing to follow it.  Therefore, the Dave opinion set out  a pathway for Harris County to vacate the failed reforms which the district attorney’s office have identified as causing crime to increase.  

However, Harris County has done nothing to address these failed or bad bail reforms for the misdemeanor cases.  Additionally, the State of Texas has passed major bail reform litigation in its most recent legislative session.  The legislation goes into effect in three phases and final part of the legislation goes into effect on April 1, 2022.  This final phase requires judges and magistrates to review criminal histories before setting bail.  Under these changes, the Harris County misdemeanor reforms cannot continue as currently constituted.  But once Harris County does not appear to be doing anything to comply with these changes in Texas law.  Currently, no one reviews the criminal history before the bond is set in misdemeanor cases.  Nothing is being done to prepare to comply with the new Texas law going into effect April 1, 2022.  

Instead of seeking to comply with Texas law, Harris County has spent untold sums of money to set up a “dashboard.”  The county asked the county attorney to issue an opinion in November 2021 regarding whether the county could require either defendants or bondsmen to disclose information to be included on the dashboard.  The opinion from the county attorney concluded that the court could not require defendants or bondsmen to disclose information to be included on the dashboard.  Further, the letter stated that even if the Texas legislature enacted a new law, there would remain privacy issues to overcome before the information could be included.  

It would appear to the bail industry that the county and the bail bond board’s time would be better spent focusing on ensuring that Harris County comes into compliance with Texas law before it seeks to step into unchartered territory and attempt to regulate something that it in all likelihood lacks the authority to do. 

Over the last four years the bail bond industry in Harris County has written fewer and fewer bonds.  At the same time the use of personal bonds has skyrocketed.  The increased use of the personal bonds  correlates with the increase in crime rates.  Additionally, the settlement in Odonnell has tied the hands of judges to prevent them from holding defendants accountable for missing court.  The report issued by the district attorneys’ office maintains that crime has increased, in part, because of the misdemeanor reforms.  Therefore, logic should dictate agreement that the bonding community has not contributed to the rise in crime identified by the district attorneys’ office regarding misdemeanor bail reform.

    To support their resolution, Harris County maintains that bondsmen are posting bonds for dangerout individuals without collecting a sufficient payment before posting the bond.  There were even allegations made that several bondsmen were only charging 1%, 2% or 3% for a bond.  The problem is that these allegations turned out not to be true.  The sheriff's office investigated these allegations and determined that they were not true and that no bonds were being posted for a fee of 1%, 2% or 3%.  Additionally, the law if verly clear that a private industry cannot get together and agree to price fixing.  The Sherman Act makes such actions illegal on the federal level and these same actions are illegal at the state level purusant to the Texas Fair Enterprise & Antitrust Act of 1983.

    Under the Texas statute the definition of person (who cannot engage in price fixing) is so broad that the only exclusions are for the State of Texas and a state agency.  It appears that the county is putting all their eggs in the argument that the bail bond board is a quasi-state agency; and therefore, also exempt from the requirements of the act.  Otherwise, the actions of the board would clearly violate the statute and would subject the county to significant exposure.

    Bondsmen do not set bail.  The courts set bail.  If a court fails to deny a bond to a defendant when authorized by the Texas Consitution, the bonding community believes in good faith that the trial court has done its job and determined that the defendant is safe to be released on bond.  

    So what is really going on in Harris County?  Harris County opposed SB6.  They are taking no actions to comply with the new law.  The final portion of the bill goes into effect on April 1st and the county and the judges have not made any plans to prepare for the new rules.  Instead, the county is set on this path to make it more difficult to release individuals from jail.  It appears that the county wants to increase an already crowded jail and blame the increase on SB6.  Then Harris County can demand that changes must be made to SB6.