86R28632 MAW-D
By: Murr, Anderson, Coleman, et al. H.B. No. 1323
Substitute the following for H.B. No. 1323:
By: Hunter C.S.H.B. No. 1323
A BILL TO BE ENTITLED
AN ACT
relating to bail proceedings and related duties of a magistrate in a
criminal case.
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 BAIL. (a) Except as provided by
Subsection (b) or Chapter 17, any person [All prisoners] shall be
eligible for bail, [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
bail after indictment found upon examination of the evidence, in
such manner as may be prescribed by law.
(b) A person charged with an offense listed in Article
42A.054 may be denied bail pending trial if a judge or magistrate
determines by clear and convincing evidence that requiring bail and
conditions of release is 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 17.027, 17.028, 17.034, 17.035, 17.036,
and 17.037 to read as follows:
Art. 17.027. DENIAL OF BAIL. A magistrate who denies a
defendant's bail as authorized by Article 1.07(b) shall inform the
defendant that the defendant is entitled to a bail review hearing
under Article 17.034 and, as soon as practicable but not later than
24 hours after denying bail, issue a written order of denial that
includes findings of fact and a statement of the magistrate's
reasons for the denial.
Art. 17.028. BAIL SCHEDULE. A judge may not adopt a bail
schedule or enter a standing order related to bail that is
inconsistent with the laws of this state.
Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as
practicable after a defendant's bail is denied, but not later than
the 10th day after the date the magistrate issues the written order
denying bail as described by Article 17.027, 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 bail review hearing. The court
or the attorney representing the state may not direct or encourage
the defendant to waive the defendant's right to a bail review
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) A defendant is entitled to be represented by counsel at
a bail review hearing, and an indigent defendant is entitled to have
counsel appointed to represent the defendant for that purpose.
(d) The defendant may present any relevant information at
the bail review hearing, including by testifying, presenting
witnesses, and cross-examining witnesses presented by the attorney
representing the state.
(e) The rules of evidence applicable to criminal trials do
not apply to a bail review hearing. The defendant or the attorney
representing the state may request a proffer of a witness's
testimony before the witness is presented.
(f) A defendant may not use a bail review hearing to:
(1) seek discovery or conduct an examining trial; or
(2) harass a victim of or witness to the alleged
offense.
(g) At any time during the period occurring after the bail
review 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 bail
review 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. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a)
In a bail review 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, criminal history including any prior offenses involving
peace officers, 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 release on bail, if applicable;
(5) the nature and seriousness of the risk of
obstruction to the criminal justice process as a result of the
defendant's release on bail, if applicable;
(6) the results of any pretrial risk assessment of the
defendant; and
(7) any other relevant information.
(b) After the bail review hearing, the judge shall authorize
the defendant's release on bail unless the judge finds by clear and
convincing evidence that requiring bail and conditions of release
is 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) deny the defendant's bail; and
(2) issue a written order of denial that includes
findings of fact and a statement of the judge's reasons for the
denial.
Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for
good cause shown, the court may not authorize a continuance for more
than five days, excluding weekends and legal holidays.
Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is
entitled to appeal a denial of bail. 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 3. 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 4. The change in law made by this Act applies only
to a person who is arrested on or after September 1, 2020. A person
arrested before September 1, 2020, is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 5. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2019.
(b) Sections 1 and 2 of this Act take effect December 1,
2019, but only if the constitutional amendment proposed by the 86th
Legislature, Regular Session, 2019, is approved by the voters to
authorize the denial of bail to an accused person 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, Sections 1 and 2 of this Act have no
effect.