By: Murr H.B. No. 3738
A BILL TO BE ENTITLED
AN ACT
relating to the pretrial release of a defendant.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 1.07, Code of Criminal Procedure, is
amended to read as follows:
Art. 1.07. RIGHT TO PRETRIAL RELEASE [BAIL]. (a) Except as
provided by Subsection (b) or Chapter 17, any person [All
prisoners] shall be eligible for pretrial release, whether on a
bail bond or a personal bond, [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 pretrial release [bail] after indictment found upon
examination of the evidence, in such manner as may be prescribed by
law.
(b) A person may be denied pretrial release if a judge or
magistrate determines by clear and convincing evidence that
requiring bail and conditions of pretrial release are insufficient
to reasonably ensure:
(1) the person's appearance in court as required; or
(2) the safety of the community or the victim of the
alleged offense.
SECTION 2. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.021, 17.027, 17.028, and 17.029 to
read as follows:
Art. 17.021. DEFINITION OF "PERSONAL BOND OFFICE". (a) A
"personal bond office" means an office established under Article
17.42 to:
(1) gather and review any information that may have a
bearing on whether a defendant charged with an offense will comply
with the conditions of a personal bond; and
(2) report any findings to the court before which the
defendant's case is pending.
(b) The term "personal bond office" includes a pretrial
services office or a pretrial release office.
Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The district
judges with criminal jurisdiction in each judicial district shall
adopt an instrument to be used in conducting a pretrial risk
assessment of a defendant charged with an offense in that district.
The instrument adopted must be the automated pretrial risk
assessment system developed under Section 72.032, Government Code,
or another instrument that is:
(1) objective, validated for its intended use, and
standardized; and
(2) based on an analysis of empirical data and risk
factors relevant to the risk of:
(A) a defendant failing to appear in court as
required; and
(B) danger to the community or the victim of the
alleged offense as a result of the defendant's pretrial release.
(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 for the county in which
the defendant is being detained, or other suitable 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 pretrial release decision under Article 17.028
within the period required by Subsection (a) of that article.
(c) The magistrate must consider the results of the pretrial
risk assessment before making a pretrial release decision under
Article 17.028.
Art. 17.028. PRETRIAL RELEASE DECISION. (a) Without
unnecessary delay but not later than 48 hours after a defendant is
arrested, a magistrate shall order, after considering all
circumstances, the results of the pretrial risk assessment
conducted under Article 17.027, and any credible information
provided by the defendant or the attorney representing the state,
that the defendant be:
(1) released on personal bond without conditions;
(2) released on personal bond with any condition the
magistrate determines necessary;
(3) released on a monetary bail bond without
conditions;
(4) released on a monetary bail bond with any
condition the magistrate determines necessary; or
(5) denied pretrial release in accordance with this
chapter.
(b) A magistrate may release a defendant arrested pursuant
to a warrant that was issued in a county other than the county in
which the defendant was arrested if the magistrate would have had
jurisdiction over the matter had the warrant been issued in the
county of arrest. If applicable, the magistrate shall forward a
copy of the pretrial release order to a personal bond office in the
county in which the arrest warrant was issued.
(c) In making a decision under this article, the magistrate
shall impose, as applicable, the least restrictive conditions and
the minimum amount or type of bail necessary to reasonably ensure
the defendant's appearance in court as required and the safety of
the community and the victim of the alleged offense.
(d) A magistrate may not require a defendant to provide a
monetary bail bond for the sole purpose of preventing the
defendant's pretrial release.
(e) A magistrate who denies a defendant's pretrial release
shall inform the defendant that the defendant is entitled to a
pretrial detention hearing under Article 17.035 and, as soon as
practicable but not later than 24 hours after denying the release,
issue a written order of denial that includes findings of fact and a
statement of the magistrate's reasons for denying the release.
(f) Any costs related to a condition of a defendant's
pretrial release shall be assessed as court costs or ordered paid
directly by a defendant as a condition of release, unless the
magistrate determines that the defendant is indigent or
demonstrates an inability to pay.
(g) A judge may not adopt a bail schedule or enter a standing
order related to bail that:
(1) is inconsistent with this article; or
(2) authorizes a magistrate or other officer to make a
pretrial release decision for a defendant without considering the
results of the defendant's pretrial risk assessment.
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 pretrial
release 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.
SECTION 3. Articles 17.032(a), (b), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) In this article, "violent offense" means an offense
under the following sections of the Penal Code:
(1) Section 19.02 (murder);
(2) Section 19.03 (capital murder);
(3) Section 20.03 (kidnapping);
(4) Section 20.04 (aggravated kidnapping);
(5) Section 21.11 (indecency with a child);
(6) Section 22.01(a)(1) (assault), if the offense
involves family violence as defined by Section 71.004, Family Code;
(7) Section 22.011 (sexual assault);
(8) Section 22.02 (aggravated assault);
(9) Section 22.021 (aggravated sexual assault);
(10) Section 22.04 (injury to a child, elderly
individual, or disabled individual);
(11) Section 29.03 (aggravated robbery);
(12) Section 21.02 (continuous sexual abuse of young
child or children); or
(13) Section 20A.03 (continuous trafficking of
persons).
(b) Notwithstanding a bail schedule or any standing order
entered by a judge, a [A] magistrate shall release a defendant on
personal bond unless good cause is shown otherwise if [the]:
(1) the defendant is not charged with and has not been
previously convicted of a violent offense;
(2) the defendant is examined by the local mental
health [or mental retardation] authority, local intellectual and
developmental disability authority, or another mental health or
intellectual disability expert under Article 16.22 [of this code];
(3) the applicable expert, in a written assessment
submitted to the magistrate under Article 16.22,[:
[(A)] concludes that the defendant:
(A) has a mental illness or is a person with an
intellectual disability; [mental retardation] and
(B) requires treatment that is not available in
the jail [is nonetheless competent to stand trial]; [and
[(B) recommends mental health treatment for the
defendant; and]
(4) the magistrate determines, in consultation with
the local mental health [or mental retardation] authority or local
intellectual and developmental disability authority, that
appropriate community-based mental health or intellectual
disability [mental retardation] services for the defendant are
available in accordance with [through the Texas Department of
Mental Health and Mental Retardation under] Section 534.053 or
534.103, Health and Safety Code, or through a [another] mental
health or intellectual disability [mental retardation] services
provider as otherwise permitted by law; and
(5) the magistrate finds, after considering all the
circumstances, the results of the pretrial risk assessment
conducted under Article 17.027, and any other credible information
provided by the defendant or the attorney representing the state,
that release on personal bond would reasonably ensure the
defendant's appearance in court as required and the safety of the
community and the victim of the alleged offense.
(c) The magistrate, unless good cause is shown for not
requiring treatment, shall require as a condition of release [on
personal bond] under this article that the defendant submit to
outpatient or inpatient mental health or intellectual disability
[mental retardation] treatment as recommended by the local mental
health [or mental retardation] authority, local intellectual and
developmental disability authority, or another qualified mental
health or intellectual disability expert if the defendant's:
(1) mental illness or intellectual disability [mental
retardation] is chronic in nature; or
(2) ability to function independently will continue to
deteriorate if the defendant is not treated.
(d) In addition to a condition of release imposed under
Subsection (c) of this article, the magistrate may require the
defendant to comply with other conditions that are reasonably
necessary to ensure the defendant's appearance in court as required
and the safety of [protect] the community and the victim of the
alleged offense.
SECTION 4. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.034, 17.035, 17.036, 17.037, and
17.038 to read as follows:
Art. 17.034. RELEASE OF DEFENDANT ARRESTED FOR FAILURE TO
APPEAR. A magistrate shall release on personal bond a defendant
arrested on a warrant issued for the defendant's failure to appear
as ordered if the defendant shows good cause for the failure to
appear. If good cause is not shown, a magistrate may release the
defendant in accordance with Article 17.028. If the magistrate
releases the defendant on a monetary bail bond, the magistrate must
set the amount of bail at the minimum amount that the magistrate
determines is necessary to reasonably ensure the defendant's
appearance in court as required and the safety of the community and
the victim of the alleged offense.
Art. 17.035. PRETRIAL DETENTION HEARING REQUIRED. (a) As
soon as practicable after a defendant's pretrial release is denied
under Article 17.028, but not later than the 10th day after the date
the magistrate issues the written order denying the release, 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 and intelligently waive in
writing the defendant's right to a pretrial detention hearing. The
court or the attorney representing the state may not direct or
encourage the defendant to waive the defendant's right to a
pretrial detention 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. A defendant may withdraw a waiver under this subsection at
any time.
(c) The attorney representing the state must establish
probable cause that the defendant committed the offense for which
the defendant is being detained. The attorney representing the
state may satisfy the requirement of this subsection by providing
to the court an information or indictment for the offense.
(d) In each criminal case, there is a rebuttable presumption
that monetary bail, conditions of release, or both monetary bail
and conditions of release are sufficient to reasonably ensure the
defendant's appearance in court as required and the safety of the
community and 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 any other information presented during the hearing.
(e) A defendant is entitled to be represented by counsel at
a pretrial detention hearing, and an indigent defendant is entitled
to have counsel appointed to represent the defendant for that
purpose.
(f) The defendant may present any relevant information at
the pretrial detention hearing, including by testifying,
presenting witnesses, and cross-examining witnesses presented by
the attorney representing the state.
(g) The rules of evidence applicable to criminal trials do
not apply to a pretrial detention hearing. The defendant or the
attorney representing the state may request a proffer of a
witness's testimony before the witness is presented.
(h) A defendant may not use a pretrial detention hearing to:
(1) seek discovery or conduct an examining trial; or
(2) harass a victim of or witness to the alleged
offense.
(i) At any time during the period occurring after the
pretrial detention 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 pretrial detention hearing based on new information that
the court determines is material to the issue of whether monetary
bail or conditions of release will reasonably ensure the
defendant's appearance in court as required and the safety of the
community and the victim of the alleged offense.
Art. 17.036. PRETRIAL DETENTION HEARING: FINDING AND ORDER.
(a) In a pretrial detention 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
including criminal history, history relating to drug or alcohol
abuse, and history of attendance at court proceedings; 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 the victim of the alleged offense as a result of the
defendant's pretrial release, if applicable;
(5) the nature and seriousness of the risk of
obstruction to the criminal justice process as a result of the
defendant's pretrial release, if applicable;
(6) the results of the defendant's pretrial risk
assessment; and
(7) any other relevant information.
(b) The judge shall order the defendant to be released in
accordance with Article 17.028 unless the judge finds by clear and
convincing evidence that monetary bail and conditions of release
are insufficient to reasonably ensure the defendant's appearance in
court as required or the safety of the community or the victim of
the alleged offense. If the judge makes the finding described by
this subsection, the judge shall:
(1) order that the defendant be detained in jail
pending trial; and
(2) issue a written order that includes findings of
fact and a statement of the judge's reasons for ordering the
pretrial detention.
Art. 17.037. PRETRIAL DETENTION HEARING: CONTINUANCE. A
defendant may request a continuance of a pretrial detention
hearing. Except for good cause shown, the court may not, based on a
defendant's request, authorize a continuance for more than five
days, excluding weekends and legal holidays. The attorney
representing the state may not request a continuance of a pretrial
detention hearing.
Art. 17.038. PRETRIAL DETENTION HEARING: APPEAL. A
defendant is entitled to appeal an order requiring that the
defendant be detained in jail pending trial. 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 5. Section 3, Article 17.09, Code of Criminal
Procedure, is amended to read as follows:
Sec. 3. (a) Provided that whenever, during the course of
the action, the judge or magistrate in whose court the [such] action
is pending or a judge of a court in the county with jurisdiction
over the action finds that the bond is defective, excessive or
insufficient in amount, or that the sureties, if any, are not
acceptable, or for any other good and sufficient cause, the [such]
judge or magistrate may, either in term-time or in vacation, order
the defendant [accused] to be rearrested, and require the defendant
[accused] to give another bond in accordance with this chapter in an
[such] amount or under any conditions [as] the judge or magistrate
considers [may deem] proper. When the [such] bond is [so] given and
approved, the defendant shall be released from custody. At any time
before trial of the offense for which the defendant is released on
bail, the attorney representing the state may, for any good and
sufficient cause, file a motion to declare the bond defective or
insufficient.
(b) The judge or magistrate may order the defendant to be
rearrested and require the defendant to give another bond in a
higher amount only after providing notice to each party to the
action and, on request of a party, an opportunity for a hearing.
SECTION 6. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.142 and 17.1511 to read as follows:
Art. 17.142. APPLICATION FOR BAIL REDUCTION. A defendant
who is unable to give bail in the amount ordered under this chapter
may submit an application for a bail reduction to the judge in whose
court the action is pending or a judge of a court in the county with
jurisdiction over the action. The judge shall promptly hold a
hearing regarding the application.
Art. 17.1511. RELEASE OF DEFENDANT DETAINED LONGER THAN
POTENTIAL PUNISHMENT. Notwithstanding any other law, a defendant
may not be detained in jail pending trial for a cumulative period
that exceeds the maximum term of confinement that may be imposed on
conviction of the offense of which the defendant is accused.
SECTION 7. Article 17.20, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.20. BAIL IN MISDEMEANOR. Notwithstanding a bail
schedule or any standing order entered by a judge, in [In] cases of
misdemeanor when the defendant is in the custody of the officer or
jailer, the sheriff or other peace officer[,] or a jailer licensed
under Chapter 1701, Occupations Code, after considering the results
of the defendant's pretrial risk assessment, may, whether during
the term of the court or in vacation, [where the officer has a
defendant in custody,] take [of] the bail of the defendant in
accordance with Article 17.028 [a bail bond].
SECTION 8. Article 17.21, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.21. BAIL IN FELONY. (a) Notwithstanding a bail
schedule or any standing order entered by a judge, in [In] cases of
felony, when the defendant [accused] is in the custody of a [the]
sheriff or other peace officer or a jailer licensed under Chapter
1701, Occupations Code, and the court before which the prosecution
is pending is in session in the county where the defendant [accused]
is in custody, the court shall make a pretrial release decision in
accordance with Article 17.028. After approving the bail, the [fix
the amount of bail, if it is a bailable case and determine if the
accused is eligible for a personal bond; and the sheriff or other
peace] officer[, unless it be the police of a city,] or [a] jailer
may [licensed under Chapter 1701, Occupations Code, is authorized
to] take the [a] bail [bond] of the defendant [accused in the
amount] as ordered [fixed] by the court. On taking the bail, the[,
to be approved by such] officer or jailer shall [taking the same,
and will thereupon] discharge the defendant [accused] from custody.
(b) The defendant and the defendant's sureties are not
required to appear in court.
(c) This article does not apply to a peace officer employed
by a municipality.
SECTION 9. Article 17.22, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.22. MAY TAKE BAIL IN FELONY. In a felony case, if
the court before which the case [same] is pending is not in session
in the county where the defendant is in custody, the sheriff or
other peace officer[,] or a jailer licensed under Chapter 1701,
Occupations Code, who has the defendant in custody:
(1) may take the defendant's bail if bail has [bond in
such amount as may have] been ordered [fixed] by the court or
magistrate under Article 17.028;[,] or
(2) notwithstanding a bail schedule or any standing
order entered by a judge, may, after considering the results of the
defendant's pretrial risk assessment, take the defendant's bail in
accordance with Article 17.028 if bail [no amount] has not been
ordered [fixed, then in such amount as such officer may consider
reasonable].
SECTION 10. 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 11. Articles 17.41(b) and (c), Code of Criminal
Procedure, are amended to read as follows:
(b) Subject to Subsections (c) and (d), a magistrate shall
require as a condition of release [bond] for a defendant charged
with an offense described by Subsection (a) that the defendant not:
(1) directly communicate with the alleged victim of
the offense; or
(2) go near a residence, school, or other location, as
specifically described in the bond, frequented by the alleged
victim.
(c) A magistrate who imposes a condition of release [bond]
under this article may grant the defendant supervised access to the
alleged victim.
SECTION 12. Section 1, Article 17.42, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. Any county, or any judicial district with
jurisdiction in more than one county, with the approval of the
commissioners court of each county in the district, may establish a
personal bond office [to gather and review information about an
accused that may have a bearing on whether he will comply with the
conditions of a personal bond and report its findings to the court
before which the case is pending].
SECTION 13. 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) 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 fee of $20 or three percent of the
amount of the bail fixed for the 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 or if other good cause is shown. The court or
jailer may not refuse to release a defendant solely because the
defendant is unable to pay the fee if the court determines that the
defendant is indigent or demonstrates an inability to pay the fee.
(a-1) The court may require that any fee assessed under
Subsection (a) be paid:
(1) before the defendant is released;
(2) as a condition of release; or
(3) as court costs.
SECTION 14. Sections 5(a) and (b), Article 17.42, Code of
Criminal Procedure, are amended to read as follows:
(a) A personal bond [pretrial release] office established
under this article shall:
(1) prepare a record containing information about any
defendant [accused person] identified by case number only who,
after review by the office, is released by a court on personal bond;
(2) update the record on a monthly basis; and
(3) file a copy of the record with the district or
county clerk, as applicable based on court jurisdiction over the
categories of offenses addressed in the records, in any county
served by the office.
(b) In preparing a record under Subsection (a), the office
shall include in the record a statement of:
(1) the offense with which the defendant [person] is
charged;
(2) the dates of any court appearances scheduled in
the matter that were previously unattended by the defendant
[person];
(3) whether a summons or a warrant of arrest has been
issued as a result of [for] the defendant's [person's arrest for]
failure to appear in accordance with the terms of [the person's]
release;
(4) whether the defendant [person] has failed to
comply with conditions of release [on personal bond]; and
(5) the presiding judge or magistrate who authorized
the personal bond.
SECTION 15. Section 6(b), Article 17.42, Code of Criminal
Procedure, is amended to read as follows:
(b) In preparing an annual report under Subsection (a), the
office shall include in the report a statement of:
(1) the office's operating budget;
(2) the number of positions maintained for office
staff;
(3) the number of defendants [accused persons] who,
after review by the office, were released by a court on personal
bond; and
(4) the number of defendants [persons] described by
Subdivision (3):
(A) who were convicted of the same offense or of
any felony within the six years preceding the date on which charges
were filed in the matter pending during the defendant's [person's]
release;
(B) who failed to attend a scheduled court
appearance;
(C) for whom a summons or a warrant of arrest was
issued as a result of [for] the defendant's [person's arrest for]
failure to appear in accordance with the terms of [the person's]
release; or
(D) who were arrested for any other offense while
on the personal bond.
SECTION 16. Article 17.43, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.43. HOME CURFEW AND ELECTRONIC MONITORING AS
CONDITION. (a) A magistrate may require as a condition of release
[on personal bond] that the defendant submit to home curfew and
electronic monitoring under the supervision of an agency designated
by the magistrate.
(b) Cost of monitoring may be assessed as court costs or
ordered paid directly by the defendant as a condition of release
[bond].
SECTION 17. The heading to Article 17.44, Code of Criminal
Procedure, is amended to read as follows:
Art. 17.44. HOME CONFINEMENT, ELECTRONIC MONITORING,
ALCOHOL OR [AND] DRUG TESTING, OR TREATMENT AS CONDITION.
SECTION 18. Article 17.44, Code of Criminal Procedure, is
amended by amending Subsections (a), (c), and (e) and adding
Subsections (a-1) and (a-2) to read as follows:
(a) A magistrate may require as a condition of release [on
bond] that the defendant submit to [:
[(1)] home confinement and electronic monitoring
under the supervision of an agency designated by the magistrate.
(a-1) On reasonable belief that a defendant is under the
influence of alcohol or a controlled substance or on the finding
that alcohol or a controlled substance related to the offense for
which the defendant is charged, a magistrate may, if the magistrate
determines that the condition will serve to reasonably ensure the
defendant's appearance in court as required or the safety of the
community or the victim of the alleged offense, require as a
condition of release that the defendant:
(1) submit to testing for alcohol or a controlled
substance in the defendant's body; or
(2) participate in an alcohol or drug abuse treatment
or education program.
(a-2) The attorney representing the state may not use the
results of any test conducted under this chapter in a criminal
proceeding arising out of the offense for which the defendant is
charged [; or
[(2) testing on a weekly basis for the presence of a
controlled substance in the defendant's body].
(c) The magistrate may revoke the bond and order the
defendant arrested if the defendant:
(1) violates a condition of home confinement and
electronic monitoring;
(2) refuses to:
(A) submit to a test for alcohol or controlled
substances; or
(B) participate in an alcohol or drug abuse
treatment or education program;
(3) submits to a test for alcohol or controlled
substances and the test indicates the presence of alcohol or a
controlled substance in the defendant's body; or
(4) [(3)] fails to pay the costs of monitoring, [or]
testing for alcohol or controlled substances, or participating in a
treatment or education program, if payment is ordered under
Subsection (e) as a condition of release [bond] and the magistrate
determines that the defendant is not indigent and is financially
able to make the payments as ordered.
(e) The cost of electronic monitoring, [or] testing for
alcohol or controlled substances, or participating in a treatment
or education program under this article may be assessed as court
costs or ordered paid directly by the defendant as a condition of
release [bond]. A magistrate may reduce or waive a cost described by
this subsection if the magistrate determines that the defendant is
indigent or demonstrates an inability to pay.
SECTION 19. Article 17.441(a), Code of Criminal Procedure,
is amended to read as follows:
(a) Except as provided by Subsection (b), a magistrate shall
require as a condition of [on] release that a defendant charged with
a subsequent offense under Sections 49.04-49.06, Penal Code, or an
offense under Section 49.07 or 49.08 of that code:
(1) have installed on the motor vehicle owned by the
defendant or on the vehicle most regularly driven by the defendant,
a device that uses a deep-lung breath analysis mechanism to make
impractical the operation of a motor vehicle if ethyl alcohol is
detected in the breath of the operator; and
(2) not operate any motor vehicle unless the vehicle
is equipped with that device.
SECTION 20. Article 17.45, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.45. CONDITIONS REQUIRING AIDS AND HIV INSTRUCTION.
A magistrate may require as a condition of release [bond] that a
defendant charged with an offense under Section 43.02, Penal Code,
receive counseling or education, or both, relating to acquired
immune deficiency syndrome or human immunodeficiency virus.
SECTION 21. Article 17.46, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.46. CONDITIONS FOR A DEFENDANT CHARGED WITH
STALKING. (a) A magistrate may require as a condition of release
[on bond] that a defendant charged with an offense under Section
42.072, Penal Code, may not:
(1) communicate directly or indirectly with the
victim; or
(2) go to or near the residence, place of employment,
or business of the victim or to or near a school, day-care facility,
or similar facility where a dependent child of the victim is in
attendance.
(b) If the magistrate requires the prohibition contained in
Subsection (a)(2) of this article as a condition of release [on
bond], the magistrate shall specifically describe the prohibited
locations and the minimum distances, if any, that the defendant
must maintain from the locations.
SECTION 22. Article 17.47, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.47. CONDITIONS REQUIRING SUBMISSION OF SPECIMEN.
(a) A magistrate may require as a condition of release [on bail or
bond of a defendant] that a [the] defendant provide to a local law
enforcement agency one or more specimens for the purpose of
creating a DNA record under Subchapter G, Chapter 411, Government
Code.
(b) For [A magistrate shall require as a condition of
release on bail or bond of] a defendant described by Section
411.1471(a), Government Code, a magistrate shall require as a
condition of release that the defendant provide to a local law
enforcement agency one or more specimens for the purpose of
creating a DNA record under Subchapter G, Chapter 411, Government
Code.
SECTION 23. Articles 17.49(b), (d), (e), and (j), Code of
Criminal Procedure, are amended to read as follows:
(b) A magistrate may require as a condition of release [on
bond] that a defendant charged with an offense involving family
violence:
(1) refrain from going to or near a residence, school,
place of employment, or other location, as specifically described
in the bond, frequented by an alleged victim of the offense;
(2) carry or wear a global positioning monitoring
system device and, except as provided by Subsection (h), pay the
costs associated with operating that system in relation to the
defendant; or
(3) except as provided by Subsection (h), if the
alleged victim of the offense consents after receiving the
information described by Subsection (d), pay the costs associated
with providing the victim with an electronic receptor device that:
(A) is capable of receiving the global
positioning monitoring system information from the device carried
or worn by the defendant; and
(B) notifies the victim if the defendant is at or
near a location that the defendant has been ordered to refrain from
going to or near under Subdivision (1).
(d) Before imposing a condition described by Subsection
(b)(3), a magistrate must provide to an alleged victim information
regarding:
(1) the victim's right to participate in a global
positioning monitoring system or to refuse to participate in that
system and the procedure for requesting that the magistrate
terminate the victim's participation;
(2) the manner in which the global positioning
monitoring system technology functions and the risks and
limitations of that technology, and the extent to which the system
will track and record the victim's location and movements;
(3) any locations that the defendant is ordered to
refrain from going to or near and the minimum distances, if any,
that the defendant must maintain from those locations;
(4) any sanctions that the court may impose on the
defendant for violating a condition of release [bond] imposed under
this article;
(5) the procedure that the victim is to follow, and
support services available to assist the victim, if the defendant
violates a condition of release [bond] or if the global positioning
monitoring system equipment fails;
(6) community services available to assist the victim
in obtaining shelter, counseling, education, child care, legal
representation, and other assistance available to address the
consequences of family violence; and
(7) the fact that the victim's communications with the
court concerning the global positioning monitoring system and any
restrictions to be imposed on the defendant's movements are not
confidential.
(e) In addition to the information described by Subsection
(d), a magistrate shall provide to an alleged victim who
participates in a global positioning monitoring system under this
article the name and telephone number of an appropriate person
employed by a local law enforcement agency whom the victim may call
to request immediate assistance if the defendant violates a
condition of release [bond] imposed under this article.
(j) A magistrate that imposes a condition described by
Subsection (b)(1) or (2) shall order the entity that operates the
global positioning monitoring system to notify the court and the
appropriate local law enforcement agency if a defendant violates a
condition of release [bond] imposed under this article.
SECTION 24. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.50, 17.51, and 17.52 to read as
follows:
Art. 17.50. VIOLATION OF CONDITION OF RELEASE. (a) A court
may, on its own motion or on the motion of the attorney representing
the state, issue a summons or a warrant of arrest for a defendant if
there is reason to believe that the defendant has violated a
condition of release. A summons must order the defendant to appear
before the court for a hearing on the violation on the date
specified in the summons, which may not be later than the 30th day
after the date the summons is issued.
(b) An attorney representing the state may not file a motion
requesting the issuance of a summons or warrant under Subsection
(a) based solely on the defendant's alleged commission of an
offense punishable by a fine only.
Art. 17.51. HEARING ON VIOLATION OF CONDITION OF RELEASE.
(a) The court must hold a hearing on an alleged violation of a
condition of release before revoking a defendant's bail. The
hearing must be held not later than:
(1) the 10th day after the date the defendant is
arrested; or
(2) the 30th day after the date a summons is issued for
the defendant.
(b) If the court, on its own motion or on the motion of the
attorney representing the state, announces its intention to revoke
the bail of a defendant who is in custody on the underlying case,
the defendant is entitled to a hearing not later than the 10th day
after the date the court announces its intention.
(c) If a revocation hearing is held following the filing of
a motion by the attorney representing the state under Article
17.50(a), the attorney representing the state must establish by a
preponderance of the evidence that the defendant violated a
condition of release.
Art. 17.52. REVOCATION OF BAIL. (a) After a hearing under
Article 17.51, the court may revoke the defendant's bail if the
court finds:
(1) by a preponderance of the evidence that the
defendant violated a condition of release; and
(2) by clear and convincing evidence that, considering
all relevant circumstances, including the nature and seriousness of
the alleged violation, monetary bail and conditions of release are
insufficient to reasonably ensure the defendant's appearance in
court as required or the safety of the community or the victim of
the alleged offense.
(b) A court that revokes the defendant's bail shall order
that the defendant be immediately returned to custody. Once the
defendant is placed in custody, the revocation of the defendant's
bail discharges the sureties on the bail bond, if any, from any
future liability on the bond. A discharge under this subsection
from any future liability on the bail bond does not discharge any
surety from liability for previous forfeitures on the bond.
SECTION 25. Subchapter B, Chapter 22, Government Code, is
amended by adding Section 22.113 to read as follows:
Sec. 22.113. DUTIES REGARDING BAIL. The court of criminal
appeals may adopt rules as necessary to implement Chapter 17, Code
of Criminal Procedure.
SECTION 26. Section 54.737(c), Government Code, is amended
to read as follows:
(c) The rules must provide that a criminal law magistrate
judge may only release a defendant under Article 17.028(b)
[17.031], Code of Criminal Procedure, under guidelines established
by the council of judges.
SECTION 27. Subchapter C, Chapter 72, Government Code, is
amended by adding Section 72.032 to read as follows:
Sec. 72.032. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM.
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 magistrates in this
state.
SECTION 29. The following provisions of the Code of
Criminal Procedure are repealed:
(1) Article 17.03;
(2) Article 17.031;
(3) Article 17.15;
(4) Article 17.33;
(5) Article 17.40; and
(6) Sections 5(c) and 6(c), Article 17.42.
SECTION 30. Not later than November 1, 2018, the Office of
Court Administration of the Texas Judicial System shall develop the
automated pretrial risk assessment system required by Section
72.032, Government Code, as added by this Act.
SECTION 31. Not later than November 1, 2018, each judicial
district shall adopt the pretrial risk assessment instrument
required by Article 17.027, Code of Criminal Procedure, as added by
this Act.
SECTION 32. The change in law made by this Act applies only
to a person who is arrested on or after November 1, 2018. A person
arrested before November 1, 2018, is governed by the law in effect
on the date the person was arrested, and the former law is continued
in effect for that purpose.
SECTION 33. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2017.
(b) Section 1 of this Act takes effect December 1, 2017, but
only if the constitutional amendment proposed by the 85th
Legislature, Regular Session, 2017, is approved by the voters to
authorize the denial of pretrial release of a person accused of a
noncapital offense if necessary to ensure the person's appearance
in court and the safety of the community and the victim of the
alleged offense. If that amendment is not approved by the voters,
Section 1 of this Act has no effect.