Texas 2019 - 86th Regular

Texas House Bill HB1323 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	86R28632 MAW-D
2		-	By: Murr, Anderson, Coleman, et al. H.B. No. 1323
3		-	Substitute the following for H.B. No. 1323:
4		-	By: Hunter C.S.H.B. No. 1323
	1	+	86R7495 MAW-D
	2	+	By: Murr H.B. No. 1323
5	3
6	4
7	5		A BILL TO BE ENTITLED
8	6		AN ACT
9	7		relating to bail proceedings and related duties of a magistrate in a
10	8		criminal case.
11	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12		-	SECTION 1. Article 1.07, Code of Criminal Procedure, is
	10	+	SECTION 1. This Act may be cited as the Damon Allen Act.
	11	+	SECTION 2. Article 1.07, Code of Criminal Procedure, is
13	12		amended to read as follows:
14	13		Art. 1.07. RIGHT TO BAIL. (a) Except as provided by
15	14		Subsection (b) or Chapter 17, any person [All prisoners] shall be
16	15		eligible for bail, [bailable] unless the person is accused of a
17	16		[for] capital offense for which [offenses when] the proof is
18	17		evident. This provision shall not be [so] construed [as] to prevent
19	18		bail after indictment found upon examination of the evidence, in
20	19		such manner as may be prescribed by law.
21		-	(b) A person ~~charged with an offense listed in Article~~
22		-	~~42A.054 may be denied bail pending trial if a judge or~~ magistrate
23		-	~~determines by clear and convincing evidence that~~ requiring bail and
24		-	~~conditions of release is insufficient to~~ reasonably ensure:
	20	+	(b) A person may be denied bail pending trial if a judge or
	21	+	magistrate determines by clear and convincing evidence that
	22	+	requiring bail and conditions of release is insufficient to
	23	+	reasonably ensure:
25	24		(1) the person's appearance in court as required; or
26	25		(2) the safety of the community or the victim of the
27	26		alleged offense.
28		-	SECTION 2. Chapter 17, Code of Criminal Procedure, is
29		-	amended by adding Articles 17.027, 17.028, 17.034, 17.035, 17.036,
30		-	and 17.037 to read as follows:
31		-	Art. 17.027. DENIAL OF BAIL. A magistrate who denies a
32		-	defendant's bail as authorized by Article 1.07(b) shall inform the
33		-	defendant that the defendant is entitled to a bail review hearing
34		-	under Article 17.034 and, as soon as practicable but not later than
35		-	24 hours after denying bail, issue a written order of denial that
36		-	includes findings of fact and a statement of the magistrate's
37		-	reasons for the denial.
38		-	Art. 17.028. BAIL SCHEDULE. A judge may not adopt a bail
39		-	schedule or enter a standing order related to bail that is
40		-	inconsistent with the laws of this state.
	27	+	SECTION 3. Chapter 17, Code of Criminal Procedure, is
	28	+	amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035,
	29	+	17.036, and 17.037 to read as follows:
	30	+	Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of
	31	+	the county courts, statutory county courts, and district courts
	32	+	trying criminal cases in each county shall adopt an instrument to be
	33	+	used in conducting a pretrial risk assessment of a defendant
	34	+	charged with an offense in that county. The instrument adopted must
	35	+	be the automated pretrial risk assessment system developed under
	36	+	Section 72.033, Government Code, or another instrument that is:
	37	+	(1) objective, validated for its intended use, and
	38	+	standardized; and
	39	+	(2) based on an analysis of empirical data and risk
	40	+	factors relevant to:
	41	+	(A) the risk of a defendant failing to appear in
	42	+	court as required; and
	43	+	(B) the safety of the community or the victim of
	44	+	the alleged offense if the defendant is released.
	45	+	(b) A magistrate considering the release on bail of a
	46	+	defendant charged with an offense punishable as a Class B
	47	+	misdemeanor or any higher category of offense shall order that:
	48	+	(1) the personal bond office established under Article
	49	+	17.42 for the county in which the defendant is being detained, or
	50	+	other suitably trained person, use the instrument adopted under
	51	+	Subsection (a) to conduct a pretrial risk assessment with respect
	52	+	to the defendant; and
	53	+	(2) the results of the assessment be provided to the
	54	+	magistrate without unnecessary delay to ensure that the magistrate
	55	+	is able to make a bail decision under Article 17.028 within the
	56	+	period required by Subsection (a) of that article.
	57	+	(c) A magistrate may not, without the consent of the
	58	+	sheriff, order a sheriff or sheriff's department personnel to
	59	+	conduct a pretrial risk assessment under Subsection (b).
	60	+	(d) Notwithstanding Subsection (b), a magistrate may
	61	+	personally conduct a pretrial risk assessment using an instrument
	62	+	adopted under Subsection (a).
	63	+	(e) The magistrate must consider the results of the pretrial
	64	+	risk assessment before making a bail decision under Article 17.028.
	65	+	Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
	66	+	but not later than 48 hours after a defendant is arrested, a
	67	+	magistrate shall order, after considering all circumstances and the
	68	+	results of the pretrial risk assessment conducted under Article
	69	+	17.027, that the defendant be:
	70	+	(1) released on personal bond or monetary bail bond
	71	+	without conditions;
	72	+	(2) released on personal bond or monetary bail bond
	73	+	with any condition the magistrate determines necessary; or
	74	+	(3) denied bail in accordance with this chapter and
	75	+	other law.
	76	+	(b) In making a bail decision under this article, the
	77	+	magistrate shall impose, as applicable, the least restrictive
	78	+	conditions and minimum amount of bail, whether personal bond or
	79	+	monetary bail bond, necessary to reasonably ensure the defendant's
	80	+	appearance in court as required and the safety of the community and
	81	+	the victim of the alleged offense.
	82	+	(c) In each criminal case, there is a rebuttable presumption
	83	+	that monetary bail, conditions of release, or both monetary bail
	84	+	and conditions of release are sufficient to reasonably ensure the
	85	+	defendant's appearance in court as required and the safety of the
	86	+	community and the victim of the alleged offense. For purposes of
	87	+	rebutting the presumption established by this subsection, the court
	88	+	may consider the results of the defendant's pretrial risk
	89	+	assessment and other information as applicable.
	90	+	(d) A magistrate may not require a defendant to provide a
	91	+	monetary bail bond for the sole purpose of preventing the
	92	+	defendant's release on bail.
	93	+	(e) A magistrate who denies a defendant's bail shall inform
	94	+	the defendant that the defendant is entitled to a bail review
	95	+	hearing under Article 17.034 and, as soon as practicable but not
	96	+	later than 24 hours after denying bail, issue a written order of
	97	+	denial that includes findings of fact and a statement of the
	98	+	magistrate's reasons for the denial.
	99	+	(f) If the magistrate determines that a defendant is not
	100	+	indigent and is able to pay any costs related to a condition of the
	101	+	defendant's bail, the magistrate shall assess the costs as court
	102	+	costs or order the costs to be paid directly by the defendant as a
	103	+	condition of release.
	104	+	(g) A judge may not adopt a bail schedule or enter a standing
	105	+	order related to bail that:
	106	+	(1) is inconsistent with this article; or
	107	+	(2) authorizes a magistrate to make a bail decision
	108	+	for a defendant without considering the results of the defendant's
	109	+	pretrial risk assessment.
	110	+	(h) This article does not prohibit a sheriff or other peace
	111	+	officer, or a jailer licensed under Chapter 1701, Occupations Code,
	112	+	from accepting bail under Article 17.20 or 17.22 before a pretrial
	113	+	risk assessment has been conducted with respect to the defendant or
	114	+	before a bail decision has been made by a magistrate under this
	115	+	article.
	116	+	Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION.
	117	+	A defendant who appears before a magistrate as ordered by citation
	118	+	may not be temporarily detained for purposes of conducting a
	119	+	pretrial risk assessment or for a magistrate to issue a bail
	120	+	decision. The magistrate, after performing the duties imposed by
	121	+	Article 15.17, shall release the defendant on personal bond, unless
	122	+	the defendant is lawfully detained on another matter.
41	123		Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as
42		-	practicable after a defendant's bail is denied, but not later than
43		-	the 10th day after the date the magistrate issues the written order
44		-	denying bail as described by Article 17.027, the court in which the
45		-	defendant's case is pending shall conduct a hearing regarding
46		-	whether to detain the defendant pending the trial of the offense.
	124	+	practicable after a defendant's bail is denied under Article
	125	+	17.028, but not later than the 10th day after the date the
	126	+	magistrate issues the written order denying bail, the court in
	127	+	which the defendant's case is pending shall conduct a hearing
	128	+	regarding whether to detain the defendant pending the trial of the
	129	+	offense.
47	130		(b) A defendant may voluntarily and intelligently waive in
48	131		writing the defendant's right to a bail review hearing. The court
49	132		or the attorney representing the state may not direct or encourage
50	133		the defendant to waive the defendant's right to a bail review
51	134		hearing. A waiver under this subsection shall be filed with and
52	135		become part of the record of the proceedings. A waiver obtained in
53	136		violation of this subsection is presumed invalid. A defendant may
54	137		withdraw a waiver under this subsection at any time.
55	138		(c) A defendant is entitled to be represented by counsel at
56	139		a bail review hearing, and an indigent defendant is entitled to have
57	140		counsel appointed to represent the defendant for that purpose.
58	141		(d) The defendant may present any relevant information at
59	142		the bail review hearing, including by testifying, presenting
60	143		witnesses, and cross-examining witnesses presented by the attorney
61	144		representing the state.
62	145		(e) The rules of evidence applicable to criminal trials do
63	146		not apply to a bail review hearing. The defendant or the attorney
64	147		representing the state may request a proffer of a witness's
65	148		testimony before the witness is presented.
66	149		(f) A defendant may not use a bail review hearing to:
67	150		(1) seek discovery or conduct an examining trial; or
68	151		(2) harass a victim of or witness to the alleged
69	152		offense.
70	153		(g) At any time during the period occurring after the bail
71	154		review hearing concludes and before the trial of the offense
72	155		commences, and regardless of whether the defendant was released or
73	156		confined as a result of that hearing, the court may reopen the bail
74	157		review hearing based on new information that the court determines
75	158		is material to the issue of whether monetary bail or conditions of
76	159		release will reasonably ensure the defendant's appearance in court
77	160		as required and the safety of the community and the victim of the
78	161		alleged offense.
79	162		Art. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a)
80	163		In a bail review hearing, the court shall consider:
81	164		(1) the nature and circumstances of the offense
82	165		charged;
83	166		(2) the weight of the evidence against the defendant,
84	167		including whether the evidence is likely to be admissible in the
85	168		trial of the offense;
86	169		(3) the history and characteristics of the defendant,
87	170		including:
88	171		(A) the defendant's character, physical and
89	172		mental condition, family ties, employment, financial resources,
90	173		length of residence in and other ties to the community, past
91	174		conduct, criminal history including any prior offenses involving
92	175		peace officers, history relating to drug or alcohol abuse, and
93	176		history of attendance at court proceedings; and
94	177		(B) whether, at the time of the offense, the
95	178		defendant was on community supervision, parole, or mandatory
96	179		supervision or was otherwise released pending trial, sentencing,
97	180		or appeal for any offense, including an offense under federal law or
98	181		the law of another state;
99	182		(4) the nature and seriousness of the danger to the
100	183		community or the victim of the alleged offense as a result of the
101	184		defendant's release on bail, if applicable;
102	185		(5) the nature and seriousness of the risk of
103	186		obstruction to the criminal justice process as a result of the
104	187		defendant's release on bail, if applicable;
105		-	(6) the results of ~~any~~ pretrial risk ~~assessment of the~~
106		-	~~defendant~~; and
	188	+	(6) the results of the defendant's pretrial risk
	189	+	assessment; and
107	190		(7) any other relevant information.
108		-	(b) ~~After the bail review hearing,~~ the judge shall ~~authorize~~
109		-	~~the defendant's release on bail~~ unless the judge finds by clear and
	191	+	(b) The judge shall order the defendant to be released in
	192	+	accordance with Article 17.028 unless the judge finds by clear and
110	193		convincing evidence that requiring bail and conditions of release
111	194		is insufficient to reasonably ensure the defendant's appearance in
112	195		court as required or the safety of the community or the victim of
113	196		the alleged offense. If the judge makes the finding described by
114	197		this subsection, the judge shall:
115	198		(1) deny the defendant's bail; and
116	199		(2) issue a written order of denial that includes
117	200		findings of fact and a statement of the judge's reasons for the
118	201		denial.
119	202		Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for
120	203		good cause shown, the court may not authorize a continuance for more
121	204		than five days, excluding weekends and legal holidays.
122	205		Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is
123	206		entitled to appeal a denial of bail. The defendant shall be
124	207		detained in jail pending the appeal. The court of criminal appeals
125	208		shall adopt rules accelerating the disposition by the appellate
126	209		court and the court of criminal appeals of an appeal under this
127	210		article.
128		-	SECTION 3. Chapter 17, Code of Criminal Procedure, is
	211	+	SECTION 4. Section 4, Article 17.09, Code of Criminal
	212	+	Procedure, is amended to read as follows:
	213	+	Sec. 4. Notwithstanding any other provision of this
	214	+	article, the judge or magistrate in whose court a criminal action is
	215	+	pending may not order the accused to be rearrested or require the
	216	+	accused to give another bond in a higher amount because the accused:
	217	+	(1) withdraws a waiver of the right to counsel; [or]
	218	+	(2) requests the assistance of counsel, appointed or
	219	+	retained; or
	220	+	(3) is formally charged with the same offense for
	221	+	which the accused was initially arrested and bond was given.
	222	+	SECTION 5. Article 17.15, Code of Criminal Procedure, is
	223	+	amended to read as follows:
	224	+	Art. 17.15. RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a)
	225	+	The amount of bail to be required in any case is to be regulated by
	226	+	the court, judge, magistrate, or officer taking the bail and is [;
	227	+	they are to be] governed [in the exercise of this discretion] by the
	228	+	Constitution and [by] the following rules:
	229	+	(1) [1.] The bail shall be sufficiently high to give
	230	+	reasonable assurance that the undertaking will be complied with.
	231	+	(2) [2.] The power to require bail is not to be so used
	232	+	as to make it an instrument of oppression.
	233	+	(3) [3.] The nature of the offense, [and] the
	234	+	circumstances under which the offense [it] was committed, and the
	235	+	defendant's criminal history, including any prior offenses
	236	+	involving peace officers or family violence, are to be considered.
	237	+	(4) [4.] The ability to make bail is to be considered
	238	+	[regarded], and proof may be taken upon this point.
	239	+	(5) [5.] The future safety of a victim of the alleged
	240	+	offense and the community shall be considered.
	241	+	(6) The results of a pretrial risk assessment shall be
	242	+	considered.
	243	+	(b) In this article, "family violence" has the meaning
	244	+	assigned by Section 71.004, Family Code.
	245	+	SECTION 6. Chapter 17, Code of Criminal Procedure, is
129	246		amended by adding Article 17.251 to read as follows:
130	247		Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A
131	248		magistrate authorizing a defendant's release on bail shall, if
132	249		applicable, provide written notice to the defendant of:
133	250		(1) the conditions of the defendant's release; and
134	251		(2) the penalties of violating a condition of release,
135	252		including the defendant's arrest.
136	253		(b) The notice under Subsection (a) must be provided in a
137	254		manner that is sufficiently clear and specific to serve as a guide
138	255		for the defendant's conduct while released.
139		-	SECTION 4. The change in law made by this Act applies only
	256	+	SECTION 7. Section 4, Article 17.42, Code of Criminal
	257	+	Procedure, is amended by amending Subsection (a) and adding
	258	+	Subsection (a-1) to read as follows:
	259	+	(a) Except as otherwise provided by this subsection, if a
	260	+	court releases a defendant [an accused] on personal bond on the
	261	+	recommendation of a personal bond office, the court shall assess a
	262	+	personal bond fee of $20 or three percent of the amount of the bail
	263	+	fixed for the defendant [accused], whichever is greater. The court
	264	+	may waive the fee or assess a lesser fee if the court determines
	265	+	that the defendant is indigent or demonstrates an inability to pay
	266	+	the fee or if other good cause is shown. A court that requires a
	267	+	defendant to give a personal bond under Article 45.016 may not
	268	+	assess a personal bond fee under this subsection. A court may
	269	+	require that a personal bond fee assessed under this subsection be
	270	+	paid:
	271	+	(1) before the defendant is released;
	272	+	(2) as a condition of release; or
	273	+	(3) as court costs.
	274	+	(a-1) Notwithstanding Subsection (a), the court or jailer
	275	+	may not refuse to release a defendant based solely on the
	276	+	defendant's failure to pay a personal bond fee if the defendant is
	277	+	indigent or demonstrates an inability to pay the fee.
	278	+	SECTION 8. Section 27.005(a), Government Code, is amended
	279	+	to read as follows:
	280	+	(a) For purposes of removal under Chapter 87, Local
	281	+	Government Code, "incompetency" in the case of a justice of the
	282	+	peace includes the failure of the justice to successfully complete:
	283	+	(1) within one year after the date the justice is first
	284	+	elected, an 80-hour course in the performance of the justice's
	285	+	duties, including not less than four hours of instruction regarding
	286	+	the justice's duties:
	287	+	(A) under Article 15.17, Code of Criminal
	288	+	Procedure; and
	289	+	(B) with respect to setting bail in criminal
	290	+	cases; and
	291	+	(2) each following year, a 20-hour course in the
	292	+	performance of the justice's duties, including not less than:
	293	+	(A) two hours of instruction regarding the
	294	+	justice's duties:
	295	+	(i) under Article 15.17, Code of Criminal
	296	+	Procedure; and
	297	+	(ii) with respect to setting bail in
	298	+	criminal cases; and
	299	+	(B) 10 hours of instruction regarding
	300	+	substantive, procedural, and evidentiary law in civil matters.
	301	+	SECTION 9. Subchapter C, Chapter 72, Government Code, is
	302	+	amended by adding Section 72.033 to read as follows:
	303	+	Sec. 72.033. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
	304	+	PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
	305	+	17.027, Code of Criminal Procedure, the office shall develop an
	306	+	automated pretrial risk assessment system and make the system
	307	+	available to judges and other magistrates in this state at no cost
	308	+	to a county, municipality, or magistrate. The office shall also
	309	+	make available nonautomated pretrial risk assessment instruments
	310	+	to judges and other magistrates in this state at no cost to a
	311	+	county, municipality, or magistrate.
	312	+	SECTION 10. The following provisions of the Code of
	313	+	Criminal Procedure are repealed:
	314	+	(1) Article 17.03(g); and
	315	+	(2) Sections 5(c) and 6(c), Article 17.42.
	316	+	SECTION 11. (a) Section 27.005(a)(1), Government Code, as
	317	+	amended by this Act, applies only to a justice of the peace who is
	318	+	first elected or appointed on or after the effective date of this
	319	+	Act. A justice of the peace who is first elected or appointed
	320	+	before the effective date of this Act is governed by the law in
	321	+	effect on the date the justice was first elected or appointed, and
	322	+	the former law is continued in effect for that purpose.
	323	+	(b) A justice of the peace serving on the effective date of
	324	+	this Act must complete the justice's initial two hours of
	325	+	instruction required by Section 27.005(a)(2)(A), Government Code,
	326	+	as added by this Act, not later than September 1, 2020.
	327	+	SECTION 12. Not later than September 1, 2020, the Office of
	328	+	Court Administration of the Texas Judicial System shall develop the
	329	+	automated pretrial risk assessment system and make available
	330	+	automated or nonautomated pretrial risk assessment instruments as
	331	+	required by Section 72.033, Government Code, as added by this Act.
	332	+	SECTION 13. Not later than September 1, 2020, the judges of
	333	+	the county courts, statutory county courts, and district courts
	334	+	trying criminal cases in each county shall adopt a pretrial risk
	335	+	assessment instrument as required by Article 17.027, Code of
	336	+	Criminal Procedure, as added by this Act.
	337	+	SECTION 14. The change in law made by this Act applies only
140	338		to a person who is arrested on or after September 1, 2020. A person
141	339		arrested before September 1, 2020, is governed by the law in effect
142	340		immediately before the effective date of this Act, and the former
143	341		law is continued in effect for that purpose.
144		-	SECTION 5. (a) Except as provided by Subsection (b) of ~~this~~
145		-	section, this Act takes effect September 1, 2019.
146		-	(b) ~~Sections 1 and~~ 2 of this Act ~~take~~ effect December 1,
147		-	~~2019, but~~ only if the constitutional amendment proposed by the 86th
	342	+	SECTION 15. (a) Except as provided by Subsection (b) of
	343	+	this section, this Act takes effect September 1, 2019.
	344	+	(b) Section 2 of this Act takes effect December 1, 2019, but
	345	+	only if the constitutional amendment proposed by the 86th
148	346		Legislature, Regular Session, 2019, is approved by the voters to
149	347		authorize the denial of bail to an accused person if necessary to
150	348		ensure the person's appearance in court and the safety of the
151	349		community and the victim of the alleged offense. If that amendment
152		-	is not approved by the voters, Sections 1 and 2 of this Act have no
153		-	effect.
	350	+	is not approved by the voters, Section 2 of this Act has no effect.