Texas 2017 - 85th Regular

Texas Senate Bill SB1338 Compare Versions

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Version 2 (New)

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1	1	85R31367 MAW-F
2	2	By: Whitmire, et al. S.B. No. 1338
3	3	(Murr)
4	4	Substitute the following for S.B. No. 1338: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to bail and to judicial education regarding bail
10	10	practices.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 17, Code of Criminal Procedure, is
13	13	amended by adding Articles 17.027, 17.028, 17.029, and 17.034 to
14	14	read as follows:
15	15	Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of
16	16	the county courts, statutory county courts, and district courts
17	17	trying criminal cases in each county shall adopt an instrument to be
18	18	used in conducting a pretrial risk assessment of a defendant
19	19	charged with an offense in that county. The instrument adopted must
20	20	be the automated pretrial risk assessment system developed under
21	21	Section 72.032, Government Code, or another instrument that is:
22	22	(1) objective, validated for its intended use, and
23	23	standardized; and
24	24	(2) based on an analysis of empirical data and risk
25	25	factors relevant to:
26	26	(A) the risk of a defendant failing to appear in
27	27	court as required; and
28	28	(B) the safety of the community or the victim of
29	29	the alleged offense if the defendant is released.
30	30	(b) A magistrate considering the release on bail of a
31	31	defendant charged with an offense punishable as a Class B
32	32	misdemeanor or any higher category of offense shall order that:
33	33	(1) the personal bond office for the county in which
34	34	the defendant is being detained, or other suitably trained person,
35	35	use the instrument adopted under Subsection (a) to conduct a
36	36	pretrial risk assessment with respect to the defendant; and
37	37	(2) the results of the assessment be provided to the
38	38	magistrate without unnecessary delay to ensure that the magistrate
39	39	is able to make a bail decision under Article 17.028 within the
40	40	period required by Subsection (a) of that article.
41	41	(c) A magistrate may not, without the consent of the
42	42	sheriff, order a sheriff or sheriff's department personnel to
43	43	conduct a pretrial risk assessment under Subsection (b).
44	44	(d) Notwithstanding Subsection (b), a magistrate may
45	45	personally conduct a pretrial risk assessment using an instrument
46	46	adopted under Subsection (a).
47	47	(e) The magistrate must consider the results of the pretrial
48	48	risk assessment before making a bail decision under Article 17.028.
49	49	Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
50	50	but not later than 48 hours after a defendant is arrested, a
51	51	magistrate shall order, after considering all circumstances and the
52	52	results of the pretrial risk assessment conducted under Article
53	53	17.027, that, unless otherwise prohibited by law, the defendant be
54	54	released on:
55	55	(1) personal bond or monetary bail bond without
56	56	conditions; or
57	57	(2) personal bond or monetary bail bond with any
58	58	condition the magistrate determines necessary.
59	59	(b) A magistrate may release a defendant arrested pursuant
60	60	to a warrant that was issued in a county other than the county in
61	61	which the defendant was arrested if a bail decision has not
62	62	previously been made by another magistrate and if the magistrate
63	63	would have had jurisdiction over the matter had the warrant been
64	64	issued in the county of arrest. If applicable, the magistrate shall
65	65	forward a copy of the bail order to a personal bond office in the
66	66	county in which the arrest warrant was issued.
67	67	(c) In making a bail decision under this article, the
68	68	magistrate shall impose, as applicable, the conditions and amount
69	69	of bail, whether personal bond or monetary bail bond, necessary to
70	70	reasonably ensure the defendant's appearance in court as required
71	71	and the safety of the community and the victim of the alleged
72	72	offense.
73	73	(d) A magistrate may not require a defendant to provide a
74	74	monetary bail bond for the sole purpose of preventing the
75	75	defendant's release on bail.
76	76	(e) If the magistrate determines that a defendant is not
77	77	indigent and is able to pay any costs related to a condition of the
78	78	defendant's bail, the magistrate shall assess the costs as court
79	79	costs or order the costs to be paid directly by the defendant as a
80	80	condition of release.
81	81	(f) A judge may not adopt a bail schedule or enter a standing
82	82	order related to bail that:
83	83	(1) is inconsistent with this article; or
84	84	(2) authorizes a magistrate to make a bail decision
85	85	for a defendant without considering the results of the defendant's
86	86	pretrial risk assessment.
87	87	(g) This article does not prohibit a sheriff or other peace
88	88	officer, or a jailer licensed under Chapter 1701, Occupations Code,
89	89	from accepting bail under Article 17.20 or 17.22 before a pretrial
90	90	risk assessment has been conducted with respect to the defendant or
91	91	before a bail decision has been made by a magistrate under this
92	92	article.
93	93	Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION.
94	94	A defendant who appears before a magistrate as ordered by citation
95	95	may not be temporarily detained for purposes of conducting a
96	96	pretrial risk assessment or for a magistrate to issue a bail
97	97	decision. The magistrate, after performing the duties imposed by
98	98	Article 15.17, shall release the defendant on personal bond, unless
99	99	the defendant is lawfully detained on another matter.
100	100	Art. 17.034. RELEASE OF DEFENDANT ARRESTED FOR FAILURE TO
101	101	APPEAR. A magistrate shall release on personal bond a defendant who
102	102	was released on personal bond and subsequently arrested on a
103	103	warrant issued for the defendant's failure to appear as ordered if
104	104	the defendant shows good cause for the failure to appear. If good
105	105	cause is not shown, a magistrate may release the defendant in
106	106	accordance with Article 17.028.
107	107	SECTION 2. Section 4, Article 17.09, Code of Criminal
108	108	Procedure, is amended to read as follows:
109	109	Sec. 4. (a) Notwithstanding any other provision of this
110	110	article, the judge or magistrate in whose court a criminal action is
111	111	pending may not order the accused to be rearrested or require the
112	112	accused to give another bond in a higher amount because the accused:
113	113	(1) withdraws a waiver of the right to counsel; [or]
114	114	(2) requests the assistance of counsel, appointed or
115	115	retained; or
116	116	(3) is formally charged with the same offense for
117	117	which the accused was initially arrested and bond was given, except
118	118	as provided by Subsection (b).
119	119	(b) The judge or magistrate may order the accused to be
120	120	rearrested or require the accused to give another bond in a higher
121	121	amount based on the circumstance described by Subsection (a)(3)
122	122	only after providing notice to each party to the action and, on
123	123	request of any party, an opportunity for a hearing.
124	124	SECTION 3. Article 17.20, Code of Criminal Procedure, is
125	125	amended to read as follows:
126	126	Art. 17.20. BAIL IN MISDEMEANOR. In cases of misdemeanor
127	127	when the defendant is in the custody of the officer or jailer, the
128	128	sheriff or other peace officer[,] or a jailer licensed under
129	129	Chapter 1701, Occupations Code, may, whether during the term of the
130	130	court or in vacation, [where the officer has a defendant in
131	131	custody,] take [of] the bail of the defendant as the officer or
132	132	jailer may consider reasonable [a bail bond].
133	133	SECTION 4. Article 17.21, Code of Criminal Procedure, is
134	134	amended to read as follows:
135	135	Art. 17.21. BAIL IN FELONY. (a) In cases of felony, when
136	136	the defendant [accused] is in the custody of a [the] sheriff or
137	137	other peace officer or a jailer licensed under Chapter 1701,
138	138	Occupations Code, and the court before which the prosecution is
139	139	pending is in session in the county where the defendant [accused] is
140	140	in custody, the court shall make a bail decision in accordance with
141	141	Article 17.028. After approving the bail, the [fix the amount of
142	142	bail, if it is a bailable case and determine if the accused is
143	143	eligible for a personal bond; and the sheriff or other peace]
144	144	officer, unless it be the police of a city, or [a] jailer may
145	145	[licensed under Chapter 1701, Occupations Code, is authorized to]
146	146	take the [a] bail [bond] of the defendant [accused in the amount] as
147	147	ordered [fixed] by the court under Article 17.028. On taking the
148	148	bail, the[, to be approved by such] officer or jailer shall [taking
149	149	the same, and will thereupon] discharge the defendant [accused]
150	150	from custody.
151	151	(b) The defendant and the defendant's sureties are not
152	152	required to appear in court.
153	153	SECTION 5. Article 17.22, Code of Criminal Procedure, is
154	154	amended to read as follows:
155	155	Art. 17.22. MAY TAKE BAIL IN FELONY. In a felony case, if
156	156	the court before which the case [same] is pending is not in session
157	157	in the county where the defendant is in custody, the sheriff or
158	158	other peace officer[,] or a jailer licensed under Chapter 1701,
159	159	Occupations Code, who has the defendant in custody may take the
160	160	defendant's bail [bond in such amount] as ordered [may have been
161	161	fixed] by the court or magistrate under Article 17.028[,] or, if
162	162	bail [no amount] has not been ordered [fixed], [then in such amount]
163	163	as the [such] officer or jailer may consider reasonable.
164	164	SECTION 6. Chapter 17, Code of Criminal Procedure, is
165	165	amended by adding Article 17.251 to read as follows:
166	166	Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A
167	167	magistrate authorizing a defendant's release on bail shall, if
168	168	applicable, provide written notice to the defendant of:
169	169	(1) the conditions of the defendant's release; and
170	170	(2) the penalties of violating a condition of release,
171	171	including the defendant's arrest.
172	172	(b) The notice under Subsection (a) must be provided in a
173	173	manner that is sufficiently clear and specific to serve as a guide
174	174	for the defendant's conduct while released.
175	175	SECTION 7. Section 4, Article 17.42, Code of Criminal
176	176	Procedure, is amended by amending Subsection (a) and adding
177	177	Subsection (a-1) to read as follows:
178	178	(a) If a court releases a defendant [an accused] on personal
179	179	bond on the recommendation of a personal bond office, the court
180	180	shall assess a personal bond fee of $20 or three percent of the
181	181	amount of the bail fixed for the defendant [accused], whichever is
182	182	greater. The court may waive the fee or assess a lesser fee if the
183	183	court determines that the defendant is indigent or demonstrates an
184	184	inability to pay or if other good cause is shown. The court may
185	185	require that any fee assessed under this subsection be paid:
186	186	(1) before the defendant is released;
187	187	(2) as a condition of release; or
188	188	(3) as court costs.
189	189	(a-1) Notwithstanding Subsection (a), the court or jailer
190	190	may not refuse to release a defendant based solely on the
191	191	defendant's failure to pay a personal bond fee if the defendant is
192	192	indigent or demonstrates an inability to pay the fee.
193	193	SECTION 8. Article 17.43(a), Code of Criminal Procedure, is
194	194	amended to read as follows:
195	195	(a) A magistrate may require as a condition of release [on
196	196	personal bond] that the defendant submit to home curfew and
197	197	electronic monitoring under the supervision of an agency designated
198	198	by the magistrate.
199	199	SECTION 9. Article 17.44(e), Code of Criminal Procedure, is
200	200	amended to read as follows:
201	201	(e) The cost of electronic monitoring or testing for
202	202	controlled substances under this article may be assessed as court
203	203	costs or ordered paid directly by the defendant as a condition of
204	204	bond. A magistrate may reduce or waive a cost described by this
205	205	subsection if the magistrate determines that the defendant is
206	206	indigent or demonstrates an inability to pay.
207	207	SECTION 10. Section 54.737(c), Government Code, is amended
208	208	to read as follows:
209	209	(c) The rules must provide that a criminal law magistrate
210	210	judge may only release a defendant under Article 17.028(b)
211	211	[17.031], Code of Criminal Procedure, under guidelines established
212	212	by the council of judges.
213	213	SECTION 11. Section 56.003, Government Code, is amended by
214	214	adding Subsection (b-1) to read as follows:
215	215	(b-1) In addition to the uses described by Subsection (b),
216	216	funds appropriated for any fiscal year may be used to provide
217	217	continuing legal education regarding bail practices to any master,
218	218	magistrate, referee, or associate judge appointed pursuant to
219	219	Chapter 54 or 54A as required by the court of criminal appeals under
220	220	Section 74.025.
221	221	SECTION 12. Subchapter C, Chapter 72, Government Code, is
222	222	amended by adding Section 72.032 to read as follows:
223	223	Sec. 72.032. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
224	224	PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
225	225	17.027, Code of Criminal Procedure, the office shall develop an
226	226	automated pretrial risk assessment system and make the system
227	227	available to judges and other magistrates in this state at no cost
228	228	to a county, municipality, or magistrate. The office shall also
229	229	make available nonautomated pretrial risk assessment instruments
230	230	to judges and other magistrates in this state at no cost to a
231	231	county, municipality, or magistrate.
232	232	SECTION 13. The following provisions of the Code of
233	233	Criminal Procedure are repealed:
234	234	(1) Article 17.03(g);
235	235	(2) Article 17.031; and
236	236	(3) Sections 5(c) and 6(c), Article 17.42.
237	237	SECTION 14. Not later than January 1, 2019, the Office of
238	238	Court Administration of the Texas Judicial System shall develop the
239	239	automated pretrial risk assessment system and make available
240	240	automated or nonautomated pretrial risk assessment instruments as
241	241	required by Section 72.032, Government Code, as added by this Act.
242	242	SECTION 15. Not later than January 1, 2019, the judges of
243	243	the county courts, statutory county courts, and district courts
244	244	trying criminal cases in each county shall adopt a pretrial risk
245	245	assessment instrument as required by Article 17.027, Code of
246	246	Criminal Procedure, as added by this Act.
247	247	SECTION 16. The change in law made by this Act applies only
248	248	to a person who is arrested on or after January 1, 2019. A person
249	249	arrested before January 1, 2019, is governed by the law in effect
250	250	immediately before the effective date of this Act, and the former
251	251	law is continued in effect for that purpose.
252	252	SECTION 17. This Act takes effect September 1, 2017.