Priority Bail Reform Legislation Is Underway

March 19, 2021

Legislative News

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Bail reform is a top priority for both the House and Senate as Senate Bill 21 by Sen. Joan Huffman (R-Houston) and House Bill 20 by Rep. Andrew Murr (R-Kerrville) are on the move. On Thursday, the Senate Committee on Jurisprudence heard public testimony on SB 21. Harris County District Attorney Kim Ogg began testimony by giving an overview of the current state of Harris County’s criminal justice system and the numerous problems the county has had with offenders who have committed additional crimes while out on bond. 72 homicides were committed in the county in 2020 by offenders out on bond, compared to 37 in 2015. She emphasized that “repeated criminal conduct must be stopped.” Ogg pointed out that a new development in Harris County since 2018 is that they have been seeing sequential multiple bonds granted to offenders, regardless of their previous criminal history. For example, 74 individuals in Harris County were on eight or more sequential bonds. One individual defendant had 18 sequential bonds. Ogg testified that the Harris County jails are approaching capacity and are full of violent and repeat offenders. She stated, “I believe in the concept and the constitutional right of an individual to be free, but it has to be balanced with the public’s safety.” She said she supported the spirit of SB 21 and is looking forward to working with Chair Huffman on additional changes to the bill.  

The president of the Justices of the Peace and Constables Association of Texas, Judge Rick Hill also testified on the bill. He stated that bail reform hinges on three ideas for a safer Texas; the first being training “…every magistrate in the state should be continuously trained on the magistration process”, the second, information “…magistrates need easy and readily accessible information on criminal history and a validated safety assessment of risk,” lastly, increased authority “magistrates need broader authority to deny bail to violent and/or repeat offenders.” He emphasized that justices of the peace are the most trained magistrates. He emphasized that “justices of the peace are the most trained and best qualified magistrates”. Moreover, he noted that in Harris County, the magistrates are not justices of the peace, but hired magistrates with little to no training.

HB 20 has been referred to the House Committee on Criminal Jurisprudence. Many county associations are providing information to the members of the Legislature about this very important topic. While these bills are moving, we expect there to be changes as the session progresses. Although both bills address bail reform, they differ in many ways:

SB 21 by Sen. Huffman

SB 21 allows only the trial court with jurisdiction over the case to release the defendant on a personal bond when they are charged with certain serious offenses. This changes the current magistration process.

SB 21 drastically limits the number of defendants who would be eligible for a personal bond. The bill lays out nine additional provisions under which no judge or magistrate could release a defendant without a monetary bond.

Additionally, the bill sets limitations on personal bonds. It mandates that when setting bail, a magistrate must consider the defendant’s criminal history and immigration status, plus any prior offenses committed against a public servant or involving family violence. Currently, many magistrates do not have access to this information and the bill does not create a pathway through which they might obtain it.

Furthermore, SB 21 adds a section permitting criminal trial courts to issue a standing order setting out a bail schedule for offenses within their jurisdiction. This section creates guidelines if the defendant cannot give bail in the amount set by the schedule. A defendant unable to make bail may file an affidavit of indigency and be entitled to a hearing within 48 hours of either his or her arrest or charges being filed, whichever is later.

Regardless of whether an affidavit is filed, if a defendant has not given bail before the fourth business day after the bail was set, he or she must be taken before the court where the case is pending for a hearing to reconsider the bail amount.

SB 21 mandates that education requirements for justices of the peace must include at least four hours of instruction on magistration when first elected and an additional two hours of instruction each year as a refresher course. Other magistrates such as appointed magistrates, municipal magistrates, district judges, or county judges have no educational requirements in this bill.

The bill requires additional reporting requirements for the Office of Court Administration (OCA). Lastly, it creates a new section in Chapter 17 of the Code of Criminal Procedure (CCP) regarding charitable bail organizations and county authority over those organizations.

HB 20 by Rep. Murr

HB 20 amends the Texas Code of Criminal Procedure (CCP), Art. 1.07 to provide methods and requirements for denial of bail under certain circumstances. The bill directs OCA to create a validated safety assessment of risk tool and make it available free of charge to all counties. This tool must be utilized by magistrates in determining bail amounts. In cases involving defendants charged with a Class B misdemeanor or higher, magistrates would be required to order the personal bond office or other suitably trained person to use the tool. The results must be given to the magistrate within 48 hours and they must be used when making a bail decision. OCA is required to collect data relating to the use and efficiency of the tool.

HB 20 also sets out requirements for magistration training. For example, only a magistrate who has two years of experience as a magistrate, and who has completed training approved by OCA, may release a defendant charged with a felony or a Class B misdemeanor or higher sexual offense or aggravated sexual assault. Additionally, magistrates who are licensed attorneys are required under the bill to complete four hours of magistration training. Magistrates without a law license would be required to complete 16 hours. Refresher courses are required for all magistrates every fiscal biennium after Sept. 1, 2023. Training must be provided or approved by OCA.

HB 20 creates CCP Art. 17.028, mandating a 48-hour time limit for a magistrate to deny bail, grant personal bond or monetary bond with conditions, or grant personal bond or monetary bond without conditions. Under this provision, the magistrate would be required to impose the least restrictive conditions and minimum amount of bail necessary to ensure the defendant’s appearance in court and the safety of the community, law enforcement and the victim. A magistrate may not adopt a bail schedule or enter a standing order that is inconsistent with Art. 17.028. This does not prohibit a sheriff or other peace officers and certain jailers from accepting bail under CCP Art. 17.20 and 17.22 before a validated safety assessment of risk has been conducted or before a bail decision has been made.

The bill also amends CCP Art. 17.03(b) to prohibit a defendant’s release on personal bond for certain serious offenses including a felony committed while participating in a riot as defined by Section 42.02 of the Penal Code. Lastly, it amends certain notices of conditions and reporting requirements.

For more information on this article please contact Kelsey Bernstein or Amy Befeld.