Bill Text: TX HB170 | 2021 | 87th Legislature 1st Special Session | Introduced
Bill Title: Relating to bail proceedings and related duties of a magistrate in a criminal case.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-07-09 - Referred to Constitutional Rights & Remedies [HB170 Detail]
Download: Texas-2021-HB170-Introduced.html
| 87S10167 MEW-F | ||
| By: Reynolds | H.B. No. 170 | |
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| relating to bail proceedings and related duties of a magistrate in a | ||
| criminal case. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. This Act may be cited as the Damon Allen Act. | ||
| SECTION 2. Article 1.07, Code of Criminal Procedure, is | ||
| amended to read as follows: | ||
| Art. 1.07. RIGHT TO BAIL. (a) Except as provided by | ||
| Subsection (b) or Chapter 17, any person [ |
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| eligible for bail, [ |
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| [ |
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| evident. This provision shall not be [ |
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| bail after indictment found upon examination of the evidence, in | ||
| such manner as may be prescribed by law. | ||
| (b) A person who is charged with a felony offense involving | ||
| the use or exhibition of a deadly weapon or who is charged with an | ||
| offense listed in Article 42A.054(a) other than a nonviolent drug | ||
| offense under Chapter 481, Health and Safety Code, may be denied | ||
| bail pending trial if a judge or magistrate determines by clear and | ||
| convincing evidence that requiring bail and conditions of release | ||
| is insufficient to reasonably ensure: | ||
| (1) the person's appearance in court as required; or | ||
| (2) the safety of the community or of any person, | ||
| including the victim of the alleged offense. | ||
| SECTION 3. Chapter 17, Code of Criminal Procedure, is | ||
| amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035, | ||
| 17.036, and 17.037 to read as follows: | ||
| Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of | ||
| the county courts, statutory county courts, and district courts | ||
| trying criminal cases in each county shall adopt an instrument to be | ||
| used in conducting a pretrial risk assessment of a defendant | ||
| charged with an offense in that county. The instrument adopted must | ||
| be the automated pretrial risk assessment system developed under | ||
| Section 72.038, Government Code, or another instrument that is: | ||
| (1) objective, validated for its intended use, and | ||
| standardized; | ||
| (2) based on an analysis of empirical data and risk | ||
| factors relevant to: | ||
| (A) the risk of a defendant failing to appear in | ||
| court as required; and | ||
| (B) the safety of the community or of any person, | ||
| including the victim of the alleged offense, if the defendant is | ||
| released; | ||
| (3) transparent and available for review by the | ||
| public; and | ||
| (4) designed to reduce the likelihood of bail | ||
| decisions being affected by bias based on sex, race, or other | ||
| protected classifications. | ||
| (b) A magistrate considering the release on bail of a | ||
| defendant charged with an offense punishable as a Class B | ||
| misdemeanor or any higher category of offense shall order that: | ||
| (1) the personal bond office established under Article | ||
| 17.42 for the county in which the defendant is being detained, or | ||
| other suitably trained person, use the instrument adopted under | ||
| Subsection (a) to conduct a pretrial risk assessment with respect | ||
| to the defendant; and | ||
| (2) the results of the assessment be provided to the | ||
| magistrate without unnecessary delay to ensure that the magistrate | ||
| is able to make a bail decision under Article 17.028 within the | ||
| period required by Subsection (a) of that article. | ||
| (c) A magistrate may not, without the consent of the | ||
| sheriff, order a sheriff or sheriff's department personnel to | ||
| conduct a pretrial risk assessment under Subsection (b). | ||
| (d) Notwithstanding Subsection (b), a magistrate may | ||
| personally conduct a pretrial risk assessment using an instrument | ||
| adopted under Subsection (a). | ||
| (e) The results of any pretrial risk assessment conducted | ||
| under this article must be promptly provided to the defendant and | ||
| the attorney representing the state. | ||
| (f) The magistrate must consider the results of the pretrial | ||
| risk assessment before making a bail decision under Article 17.028. | ||
| Art. 17.028. BAIL DECISION. (a) Without unnecessary delay | ||
| but not later than 48 hours after a defendant is arrested, a | ||
| magistrate shall hold a proceeding open to the public and, after | ||
| considering all circumstances and the results of the pretrial risk | ||
| assessment conducted under Article 17.027, shall order that the | ||
| defendant be: | ||
| (1) released on personal bond without conditions; | ||
| (2) released on personal bond or monetary bail bond | ||
| with any condition the magistrate determines necessary to | ||
| reasonably ensure the defendant's appearance in court as required | ||
| and the safety of the community and of any person, including the | ||
| victim of the alleged offense; or | ||
| (3) denied bail in accordance with this chapter and | ||
| other law. | ||
| (b) In making a bail decision under this article, the | ||
| magistrate shall impose, as applicable, the least restrictive | ||
| conditions and minimum amount of bail, whether personal bond or | ||
| monetary bail bond, necessary to reasonably ensure the defendant's | ||
| appearance in court as required and the safety of the community and | ||
| of any person, including the victim of the alleged offense. | ||
| (c) In each criminal case, there is a rebuttable presumption | ||
| that personal bond, conditions of release, or both personal bond | ||
| and conditions of release are sufficient to reasonably ensure the | ||
| defendant's appearance in court as required and the safety of the | ||
| community and of any person, including the victim of the alleged | ||
| offense. For purposes of rebutting the presumption established by | ||
| this subsection, the court may consider the results of the | ||
| defendant's pretrial risk assessment and other information as | ||
| applicable. | ||
| (d) A magistrate may not require a defendant to provide a | ||
| monetary bail bond for the sole purpose of preventing the | ||
| defendant's release on bail. A defendant who remains in custody for | ||
| more than 48 hours after a magistrate enters an order requiring the | ||
| defendant to provide a monetary bail bond is entitled to a bail | ||
| review hearing under Article 17.034. | ||
| (e) A magistrate who denies a defendant's bail shall inform | ||
| the defendant that the defendant is entitled to a bail review | ||
| hearing under Article 17.034 and, as soon as practicable but not | ||
| later than 24 hours after denying bail, issue a written order of | ||
| denial that includes findings of fact and a statement of the | ||
| magistrate's reasons for the denial. | ||
| (f) If the magistrate determines that a defendant is not | ||
| indigent and is able to pay any costs related to a condition of the | ||
| defendant's bail, the magistrate shall assess the costs as court | ||
| costs or order the costs to be paid directly by the defendant as a | ||
| condition of release. | ||
| (g) A judge may enter a standing order to release defendants | ||
| charged with specified offenses on personal bond before a pretrial | ||
| risk assessment has been conducted, but may not otherwise adopt a | ||
| bail schedule or enter a standing order related to bail that: | ||
| (1) is inconsistent with this article; or | ||
| (2) authorizes a magistrate to make a bail decision | ||
| for a defendant without considering the results of the defendant's | ||
| pretrial risk assessment or the ability of the defendant to pay a | ||
| monetary bail bond. | ||
| (h) This article does not prohibit a sheriff or other peace | ||
| officer, or a jailer licensed under Chapter 1701, Occupations Code, | ||
| from accepting bail under Article 17.20 or 17.22 before a pretrial | ||
| risk assessment has been conducted with respect to the defendant or | ||
| before a bail decision has been made by a magistrate under this | ||
| article. | ||
| Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION. | ||
| A defendant who appears before a magistrate as ordered by citation | ||
| may not be temporarily detained for purposes of conducting a | ||
| pretrial risk assessment or for a magistrate to issue a bail | ||
| decision. The magistrate, after performing the duties imposed by | ||
| Article 15.17, shall release the defendant on personal bond, unless | ||
| the defendant is lawfully detained on another matter. | ||
| Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as | ||
| practicable after a defendant's bail is denied under Article 17.028 | ||
| or after the defendant becomes eligible for a bail review hearing | ||
| under Article 17.028(d), but not later than the third day after the | ||
| date the magistrate issues the written order denying or setting | ||
| bail, as applicable, the court in which the defendant's case is | ||
| pending shall conduct a hearing regarding whether to detain the | ||
| defendant pending the trial of the offense. | ||
| (b) A defendant may voluntarily waive in writing the | ||
| defendant's right to a bail review hearing. The court or the | ||
| attorney representing the state may not direct or encourage the | ||
| defendant to waive the defendant's right to a bail review hearing. A | ||
| waiver under this subsection shall be filed with and become part of | ||
| the record of the proceedings. A waiver obtained in violation of | ||
| this subsection is presumed invalid. At any time, a defendant may | ||
| withdraw a waiver under this subsection and request a bail review | ||
| hearing, which must be held not later than the third day after the | ||
| date of the withdrawal. | ||
| (c) A defendant is entitled to be represented by counsel at | ||
| a bail review hearing, and an indigent defendant is entitled to have | ||
| counsel appointed to represent the defendant for that purpose. | ||
| (d) The defendant may present any relevant information at | ||
| the bail review hearing, including by testifying, presenting | ||
| witnesses, and cross-examining witnesses presented by the attorney | ||
| representing the state. | ||
| (e) The rules of evidence applicable to criminal trials do | ||
| not apply to a bail review hearing. The defendant or the attorney | ||
| representing the state may request a proffer of a witness's | ||
| testimony before the witness is presented. | ||
| (f) A defendant may not use a bail review hearing to: | ||
| (1) seek discovery or conduct an examining trial; or | ||
| (2) harass a victim of or witness to the alleged | ||
| offense. | ||
| (g) At any time during the period occurring after the bail | ||
| review hearing concludes and before the trial of the offense | ||
| commences, and regardless of whether the defendant was released or | ||
| confined as a result of that hearing, the court may reopen the bail | ||
| review hearing based on new information that the court determines | ||
| is material to the bail decision made with respect to the defendant. | ||
| Art. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a) | ||
| In a bail review hearing, the court shall consider: | ||
| (1) the nature and circumstances of the offense | ||
| charged; | ||
| (2) the weight of the evidence against the defendant, | ||
| including whether the evidence is likely to be admissible in the | ||
| trial of the offense; | ||
| (3) the history and characteristics of the defendant, | ||
| including: | ||
| (A) the defendant's character, physical and | ||
| mental condition, family ties, employment, financial resources, | ||
| length of residence in and other ties to the community, past | ||
| conduct, criminal history including any prior offenses involving | ||
| peace officers, history relating to drug or alcohol abuse, and | ||
| history of attendance at court proceedings related to a charge for a | ||
| Class B misdemeanor or any higher category of offense; and | ||
| (B) whether, at the time of the offense, the | ||
| defendant was on community supervision, parole, or mandatory | ||
| supervision or was otherwise released pending trial, sentencing, | ||
| or appeal for any offense, including an offense under federal law or | ||
| the law of another state; | ||
| (4) the nature and seriousness of the danger to the | ||
| community or to any person, including the victim of the alleged | ||
| offense as a result of the defendant's release on bail, if | ||
| applicable; | ||
| (5) the nature and seriousness of the risk of | ||
| obstruction to the criminal justice process as a result of the | ||
| defendant's release on bail, if applicable; | ||
| (6) the results of the defendant's pretrial risk | ||
| assessment; and | ||
| (7) any other relevant information. | ||
| (b) The judge shall reduce any applicable amount of monetary | ||
| bail in accordance with the defendant's ability to pay and shall | ||
| order the defendant to be released in accordance with Article | ||
| 17.028 unless the judge finds by clear and convincing evidence that | ||
| requiring bail and conditions of release is insufficient to | ||
| reasonably ensure the defendant's appearance in court as required | ||
| or the safety of the community or of any person, including the | ||
| victim of the alleged offense. If the judge makes the finding | ||
| described by this subsection, the judge shall: | ||
| (1) deny the defendant's bail; and | ||
| (2) issue a written order of denial that includes: | ||
| (A) findings of fact; | ||
| (B) a statement of the judge's reasons for the | ||
| denial; and | ||
| (C) an explanation of how the denial was | ||
| supported by the results of the defendant's pretrial risk | ||
| assessment. | ||
| Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for | ||
| good cause shown, the court may not authorize a continuance for more | ||
| than five days, excluding weekends and legal holidays. | ||
| Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is | ||
| entitled to appeal a denial of bail. The defendant shall be | ||
| detained in jail pending the appeal. The court of criminal appeals | ||
| shall adopt rules accelerating the disposition by the appellate | ||
| court and the court of criminal appeals of an appeal under this | ||
| article. | ||
| SECTION 4. Section 4, Article 17.09, Code of Criminal | ||
| Procedure, is amended to read as follows: | ||
| Sec. 4. Notwithstanding any other provision of this | ||
| article, the judge or magistrate in whose court a criminal action is | ||
| pending may not order the accused to be rearrested or require the | ||
| accused to give another bond in a higher amount because the accused: | ||
| (1) withdraws a waiver of the right to counsel; [ |
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| (2) requests the assistance of counsel, appointed or | ||
| retained; or | ||
| (3) is formally charged with the same offense for | ||
| which the accused was initially arrested and bond was given. | ||
| SECTION 5. Article 17.15, Code of Criminal Procedure, is | ||
| amended to read as follows: | ||
| Art. 17.15. RULES FOR SETTING [ |
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| The amount of bail to be required in any case is to be regulated by | ||
| the court, judge, magistrate, or officer taking the bail and is [ |
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| Constitution and [ |
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| (1) [ |
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| reasonable assurance that the undertaking will be complied with. | ||
| (2) [ |
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| as to make it an instrument of oppression. | ||
| (3) [ |
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| circumstances under which the offense [ |
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| defendant's criminal history, including any prior offenses | ||
| involving peace officers or family violence, are to be considered. | ||
| (4) [ |
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| [ |
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| bail decision is made under Article 17.028. | ||
| (5) [ |
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| person, including a victim of the alleged offense, [ |
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| (6) The results of a pretrial risk assessment shall be | ||
| considered. | ||
| (b) In this article, "family violence" has the meaning | ||
| assigned by Section 71.004, Family Code. | ||
| SECTION 6. Chapter 17, Code of Criminal Procedure, is | ||
| amended by adding Article 17.251 to read as follows: | ||
| Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A | ||
| magistrate authorizing a defendant's release on bail shall, if | ||
| applicable, provide written notice to the defendant of: | ||
| (1) the conditions of the defendant's release; and | ||
| (2) the penalties of violating a condition of release, | ||
| including the defendant's arrest. | ||
| (b) The notice under Subsection (a) must be provided in a | ||
| manner that is sufficiently clear and specific to serve as a guide | ||
| for the defendant's conduct while released. | ||
| SECTION 7. Section 4, Article 17.42, Code of Criminal | ||
| Procedure, is amended by amending Subsection (a) and adding | ||
| Subsection (a-1) to read as follows: | ||
| (a) Except as otherwise provided by this subsection, if a | ||
| court releases a defendant [ |
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| recommendation of a personal bond office, the court shall assess a | ||
| personal bond reimbursement fee of $20 or three percent of the | ||
| amount of the bail set [ |
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| whichever is greater. The court may waive the fee or assess a | ||
| lesser fee if the court determines that the defendant is indigent or | ||
| demonstrates an inability to pay the fee or if other good cause is | ||
| shown. A court that requires a defendant to give a personal bond | ||
| under Article 45.016 may not assess a personal bond reimbursement | ||
| fee under this subsection. A court may require that a personal bond | ||
| reimbursement fee assessed under this subsection be paid as court | ||
| costs. | ||
| (a-1) Notwithstanding Subsection (a), the court or jailer | ||
| may not refuse to release a defendant based solely on the | ||
| defendant's failure to pay a personal bond reimbursement fee if the | ||
| defendant is indigent or demonstrates an inability to pay the fee. | ||
| SECTION 8. Section 27.005(a), Government Code, is amended | ||
| to read as follows: | ||
| (a) For purposes of removal under Chapter 87, Local | ||
| Government Code, "incompetency" in the case of a justice of the | ||
| peace includes the failure of the justice to successfully complete: | ||
| (1) within one year after the date the justice is first | ||
| elected, an 80-hour course in the performance of the justice's | ||
| duties, including not less than four hours of instruction regarding | ||
| the justice's duties: | ||
| (A) under Article 15.17, Code of Criminal | ||
| Procedure; and | ||
| (B) with respect to setting bail in criminal | ||
| cases; and | ||
| (2) each following year, a 20-hour course in the | ||
| performance of the justice's duties, including not less than: | ||
| (A) two hours of instruction regarding the | ||
| justice's duties: | ||
| (i) under Article 15.17, Code of Criminal | ||
| Procedure; and | ||
| (ii) with respect to setting bail in | ||
| criminal cases; and | ||
| (B) 10 hours of instruction regarding | ||
| substantive, procedural, and evidentiary law in civil matters. | ||
| SECTION 9. Subchapter C, Chapter 72, Government Code, is | ||
| amended by adding Section 72.038 to read as follows: | ||
| Sec. 72.038. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM; | ||
| PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article | ||
| 17.027, Code of Criminal Procedure, the office shall develop an | ||
| automated pretrial risk assessment system and make the system | ||
| available to judges and other magistrates in this state at no cost | ||
| to a county, municipality, or magistrate. The office shall also | ||
| make available nonautomated pretrial risk assessment instruments | ||
| to judges and other magistrates in this state at no cost to a | ||
| county, municipality, or magistrate. | ||
| SECTION 10. The following provisions of the Code of | ||
| Criminal Procedure are repealed: | ||
| (1) Article 17.03(g); and | ||
| (2) Sections 5(c) and 6(c), Article 17.42. | ||
| SECTION 11. (a) Section 27.005(a)(1), Government Code, as | ||
| amended by this Act, applies only to a justice of the peace who is | ||
| first elected or appointed on or after the effective date of this | ||
| Act. A justice of the peace who is first elected or appointed | ||
| before the effective date of this Act is governed by the law in | ||
| effect on the date the justice was first elected or appointed, and | ||
| the former law is continued in effect for that purpose. | ||
| (b) A justice of the peace serving on the effective date of | ||
| this Act must complete the justice's initial two hours of | ||
| instruction required by Section 27.005(a)(2)(A), Government Code, | ||
| as added by this Act, not later than March 1, 2022. | ||
| SECTION 12. Not later than March 1, 2022, the Office of | ||
| Court Administration of the Texas Judicial System shall develop the | ||
| automated pretrial risk assessment system and make available | ||
| automated or nonautomated pretrial risk assessment instruments as | ||
| required by Section 72.038, Government Code, as added by this Act. | ||
| SECTION 13. Not later than March 1, 2022, the judges of the | ||
| county courts, statutory county courts, and district courts trying | ||
| criminal cases in each county shall adopt a pretrial risk | ||
| assessment instrument as required by Article 17.027, Code of | ||
| Criminal Procedure, as added by this Act. | ||
| SECTION 14. The change in law made by this Act applies only | ||
| to a person who is arrested on or after March 1, 2022. A person | ||
| arrested before March 1, 2022, is governed by the law in effect | ||
| immediately before the effective date of this Act, and the former | ||
| law is continued in effect for that purpose. | ||
| SECTION 15. (a) Except as provided by Subsection (b) of | ||
| this section, this Act takes effect on the 91st day after the last | ||
| day of the legislative session. | ||
| (b) Section 2 of this Act takes effect December 1, 2021, but | ||
| only if the constitutional amendment proposed by the 87th | ||
| Legislature, 1st Called Session, 2021, authorizing the denial of | ||
| bail to an accused person if a judge or magistrate determines by | ||
| clear and convincing evidence that requiring bail and conditions of | ||
| release is insufficient to reasonably ensure the person's | ||
| appearance in court or the safety of the community or of any person, | ||
| including the victim of the alleged offense, is approved by the | ||
| voters. If that amendment is not approved by the voters, Section 2 | ||
| of this Act has no effect. | ||
