By: Whitmire, Zaffirini S.B. No. 1338
A BILL TO BE ENTITLED
AN ACT
relating to bail and to judicial education regarding bail
practices.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.027, 17.028, 17.029, and 17.034 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 72.032, 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:
(A) the risk of a defendant failing to appear in
court as required;
(B) the safety of the community or the victim of
the alleged offense if the defendant is released; and
(C) the lawful immigration status of the
defendant.
(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 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 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 order, after considering all circumstances and the
results of the pretrial risk assessment conducted under Article
17.027, that, unless otherwise prohibited by law, the defendant be
released on:
(1) personal bond or monetary bail bond without
conditions; or
(2) personal bond or monetary bail bond with any
condition the magistrate determines necessary.
(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 a bail decision has not
previously been made by another magistrate and 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 bail order to a personal bond office in the
county in which the arrest warrant was issued.
(c) In making a bail decision under this article, the
magistrate shall impose, as applicable, the least restrictive
conditions and the 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
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 release on bail.
(e) 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.
(f) 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 to make a bail decision
for a defendant without considering the results of the defendant's
pretrial risk assessment.
(g) 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. RELEASE OF DEFENDANT ARRESTED FOR FAILURE TO
APPEAR. A magistrate shall release on personal bond a defendant who
was released on personal bond and subsequently 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.
SECTION 2. Section 4, Article 17.09, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4. (a) 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, except
as provided by Subsection (b).
(b) The judge or magistrate may order the accused to be
rearrested or require the accused to give another bond in a higher
amount based on the circumstance described by Subsection (a)(3)
only after providing notice to each party to the action and, on
request of any party, an opportunity for a hearing.
SECTION 3. Article 17.20, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.20. BAIL IN MISDEMEANOR. 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, 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 as the officer or
jailer may consider reasonable [a bail bond].
SECTION 4. Article 17.21, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.21. BAIL IN FELONY. (a) 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 bail 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 under Article 17.028. 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.
SECTION 5. 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 may take the
defendant's bail [bond in such amount] as ordered [may have been
fixed] by the court or magistrate under Article 17.028[,] or, if
bail [no amount] has not been ordered [fixed], [then in such amount]
as the [such] officer or jailer may consider reasonable.
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) 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 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 or if other good cause is shown. The court may
require that any fee assessed under this subsection be paid:
(1) before the defendant is released;
(2) as a condition of release; or
(3) 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 fee if the defendant is
indigent or demonstrates an inability to pay the fee.
SECTION 8. Article 17.43(a), Code of Criminal Procedure, is
amended to read as follows:
(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.
SECTION 9. Article 17.44(e), Code of Criminal Procedure, is
amended to read as follows:
(e) The cost of electronic monitoring or testing for
controlled substances under this article may be assessed as court
costs or ordered paid directly by the defendant as a condition of
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 10. 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 11. Section 56.003, Government Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) In addition to the uses described by Subsection (b),
funds appropriated for any fiscal year may be used to provide
continuing legal education regarding bail practices to any master,
magistrate, referee, or associate judge appointed pursuant to
Chapter 54 or 54A as required by the court of criminal appeals under
Section 74.025.
SECTION 12. 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;
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 13. The following provisions of the Code of
Criminal Procedure are repealed:
(1) Article 17.03(g);
(2) Article 17.031; and
(3) Sections 5(c) and 6(c), Article 17.42.
SECTION 14. Not later than January 1, 2019, 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 72.032, Government Code, as added by this Act.
SECTION 15. Not later than January 1, 2019, 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 16. The change in law made by this Act applies only
to a person who is arrested on or after January 1, 2019. A person
arrested before January 1, 2019, 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 17. This Act takes effect September 1, 2017.