Bill Text: TX HB2077 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to bail proceedings and related duties of a magistrate in a criminal case.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2021-04-06 - Left pending in committee [HB2077 Detail]

Download: Texas-2021-HB2077-Introduced.html
  87R5813 ADM-F
 
  By: Reynolds H.B. No. 2077
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  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 [All prisoners] shall be
  eligible for bail, [bailable] unless the person is accused of a
  [for] capital offense for which [offenses when] the proof is
  evident. This provision shall not be [so] construed [as] to prevent
  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 72.036, 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; [or]
               (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 [FIXING] AMOUNT OF BAIL. (a) 
  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 [;
  they are to be] governed [in the exercise of this discretion] by the
  Constitution and [by] the following rules:
               (1) [1.]  The bail shall be sufficiently high to give
  reasonable assurance that the undertaking will be complied with.
               (2) [2.]  The power to require bail is not to be so used
  as to make it an instrument of oppression.
               (3) [3.]  The nature of the offense, [and] the
  circumstances under which the offense [it] was committed, and the
  defendant's criminal history, including any prior offenses
  involving peace officers or family violence, are to be considered.
               (4) [4.]  The ability to make bail is to be considered
  [regarded], and proof shall [may] be taken upon this point before a
  bail decision is made under Article 17.028.
               (5) [5.]  The future safety of the community and of any
  person, including a victim of the alleged offense, [and the
  community] shall be considered.
               (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 [an accused] on personal bond on the
  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 [fixed] for the defendant [accused],
  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 72.036 to read as follows:
         Sec. 72.036.  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 January 1, 2022.
         SECTION 12.  Not later than January 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 72.036, Government Code, as added by this Act.
         SECTION 13.  Not later than January 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 January 1, 2022. A person
  arrested before January 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 September 1, 2021.
         (b)  Section 2 of this Act takes effect December 1, 2021, but
  only if the constitutional amendment proposed by the 87th
  Legislature, Regular Session, 2021, authorizing the denial of bail
  to an accused person if necessary to ensure the person's appearance
  in court and the safety of the community and 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.
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