Texas 2019 - 86th Regular

Texas Senate Bill SB628 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R7495 MAW-D
2	2	By: Whitmire S.B. No. 628
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to bail proceedings and related duties of a magistrate in a
8	8	criminal case.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. This Act may be cited as the Damon Allen Act.
11	11	SECTION 2. Article 1.07, Code of Criminal Procedure, is
12	12	amended to read as follows:
13	13	Art. 1.07. RIGHT TO BAIL. (a) Except as provided by
14	14	Subsection (b) or Chapter 17, any person [All prisoners] shall be
15	15	eligible for bail, [bailable] unless the person is accused of a
16	16	[for] capital offense for which [offenses when] the proof is
17	17	evident. This provision shall not be [so] construed [as] to prevent
18	18	bail after indictment found upon examination of the evidence, in
19	19	such manner as may be prescribed by law.
20	20	(b) A person may be denied bail pending trial if a judge or
21	21	magistrate determines by clear and convincing evidence that
22	22	requiring bail and conditions of release is insufficient to
23	23	reasonably ensure:
24	24	(1) the person's appearance in court as required; or
25	25	(2) the safety of the community or the victim of the
26	26	alleged offense.
27	27	SECTION 3. Chapter 17, Code of Criminal Procedure, is
28	28	amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035,
29	29	17.036, and 17.037 to read as follows:
30	30	Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of
31	31	the county courts, statutory county courts, and district courts
32	32	trying criminal cases in each county shall adopt an instrument to be
33	33	used in conducting a pretrial risk assessment of a defendant
34	34	charged with an offense in that county. The instrument adopted must
35	35	be the automated pretrial risk assessment system developed under
36	36	Section 72.033, Government Code, or another instrument that is:
37	37	(1) objective, validated for its intended use, and
38	38	standardized; and
39	39	(2) based on an analysis of empirical data and risk
40	40	factors relevant to:
41	41	(A) the risk of a defendant failing to appear in
42	42	court as required; and
43	43	(B) the safety of the community or the victim of
44	44	the alleged offense if the defendant is released.
45	45	(b) A magistrate considering the release on bail of a
46	46	defendant charged with an offense punishable as a Class B
47	47	misdemeanor or any higher category of offense shall order that:
48	48	(1) the personal bond office established under Article
49	49	17.42 for the county in which the defendant is being detained, or
50	50	other suitably trained person, use the instrument adopted under
51	51	Subsection (a) to conduct a pretrial risk assessment with respect
52	52	to the defendant; and
53	53	(2) the results of the assessment be provided to the
54	54	magistrate without unnecessary delay to ensure that the magistrate
55	55	is able to make a bail decision under Article 17.028 within the
56	56	period required by Subsection (a) of that article.
57	57	(c) A magistrate may not, without the consent of the
58	58	sheriff, order a sheriff or sheriff's department personnel to
59	59	conduct a pretrial risk assessment under Subsection (b).
60	60	(d) Notwithstanding Subsection (b), a magistrate may
61	61	personally conduct a pretrial risk assessment using an instrument
62	62	adopted under Subsection (a).
63	63	(e) The magistrate must consider the results of the pretrial
64	64	risk assessment before making a bail decision under Article 17.028.
65	65	Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
66	66	but not later than 48 hours after a defendant is arrested, a
67	67	magistrate shall order, after considering all circumstances and the
68	68	results of the pretrial risk assessment conducted under Article
69	69	17.027, that the defendant be:
70	70	(1) released on personal bond or monetary bail bond
71	71	without conditions;
72	72	(2) released on personal bond or monetary bail bond
73	73	with any condition the magistrate determines necessary; or
74	74	(3) denied bail in accordance with this chapter and
75	75	other law.
76	76	(b) In making a bail decision under this article, the
77	77	magistrate shall impose, as applicable, the least restrictive
78	78	conditions and minimum amount of bail, whether personal bond or
79	79	monetary bail bond, necessary to reasonably ensure the defendant's
80	80	appearance in court as required and the safety of the community and
81	81	the victim of the alleged offense.
82	82	(c) In each criminal case, there is a rebuttable presumption
83	83	that monetary bail, conditions of release, or both monetary bail
84	84	and conditions of release are sufficient to reasonably ensure the
85	85	defendant's appearance in court as required and the safety of the
86	86	community and the victim of the alleged offense. For purposes of
87	87	rebutting the presumption established by this subsection, the court
88	88	may consider the results of the defendant's pretrial risk
89	89	assessment and other information as applicable.
90	90	(d) A magistrate may not require a defendant to provide a
91	91	monetary bail bond for the sole purpose of preventing the
92	92	defendant's release on bail.
93	93	(e) A magistrate who denies a defendant's bail shall inform
94	94	the defendant that the defendant is entitled to a bail review
95	95	hearing under Article 17.034 and, as soon as practicable but not
96	96	later than 24 hours after denying bail, issue a written order of
97	97	denial that includes findings of fact and a statement of the
98	98	magistrate's reasons for the denial.
99	99	(f) If the magistrate determines that a defendant is not
100	100	indigent and is able to pay any costs related to a condition of the
101	101	defendant's bail, the magistrate shall assess the costs as court
102	102	costs or order the costs to be paid directly by the defendant as a
103	103	condition of release.
104	104	(g) A judge may not adopt a bail schedule or enter a standing
105	105	order related to bail that:
106	106	(1) is inconsistent with this article; or
107	107	(2) authorizes a magistrate to make a bail decision
108	108	for a defendant without considering the results of the defendant's
109	109	pretrial risk assessment.
110	110	(h) This article does not prohibit a sheriff or other peace
111	111	officer, or a jailer licensed under Chapter 1701, Occupations Code,
112	112	from accepting bail under Article 17.20 or 17.22 before a pretrial
113	113	risk assessment has been conducted with respect to the defendant or
114	114	before a bail decision has been made by a magistrate under this
115	115	article.
116	116	Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION.
117	117	A defendant who appears before a magistrate as ordered by citation
118	118	may not be temporarily detained for purposes of conducting a
119	119	pretrial risk assessment or for a magistrate to issue a bail
120	120	decision. The magistrate, after performing the duties imposed by
121	121	Article 15.17, shall release the defendant on personal bond, unless
122	122	the defendant is lawfully detained on another matter.
123	123	Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as
124	124	practicable after a defendant's bail is denied under Article
125	125	17.028, but not later than the 10th day after the date the
126	126	magistrate issues the written order denying bail, the court in
127	127	which the defendant's case is pending shall conduct a hearing
128	128	regarding whether to detain the defendant pending the trial of the
129	129	offense.
130	130	(b) A defendant may voluntarily and intelligently waive in
131	131	writing the defendant's right to a bail review hearing. The court
132	132	or the attorney representing the state may not direct or encourage
133	133	the defendant to waive the defendant's right to a bail review
134	134	hearing. A waiver under this subsection shall be filed with and
135	135	become part of the record of the proceedings. A waiver obtained in
136	136	violation of this subsection is presumed invalid. A defendant may
137	137	withdraw a waiver under this subsection at any time.
138	138	(c) A defendant is entitled to be represented by counsel at
139	139	a bail review hearing, and an indigent defendant is entitled to have
140	140	counsel appointed to represent the defendant for that purpose.
141	141	(d) The defendant may present any relevant information at
142	142	the bail review hearing, including by testifying, presenting
143	143	witnesses, and cross-examining witnesses presented by the attorney
144	144	representing the state.
145	145	(e) The rules of evidence applicable to criminal trials do
146	146	not apply to a bail review hearing. The defendant or the attorney
147	147	representing the state may request a proffer of a witness's
148	148	testimony before the witness is presented.
149	149	(f) A defendant may not use a bail review hearing to:
150	150	(1) seek discovery or conduct an examining trial; or
151	151	(2) harass a victim of or witness to the alleged
152	152	offense.
153	153	(g) At any time during the period occurring after the bail
154	154	review hearing concludes and before the trial of the offense
155	155	commences, and regardless of whether the defendant was released or
156	156	confined as a result of that hearing, the court may reopen the bail
157	157	review hearing based on new information that the court determines
158	158	is material to the issue of whether monetary bail or conditions of
159	159	release will reasonably ensure the defendant's appearance in court
160	160	as required and the safety of the community and the victim of the
161	161	alleged offense.
162	162	Art. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a)
163	163	In a bail review hearing, the court shall consider:
164	164	(1) the nature and circumstances of the offense
165	165	charged;
166	166	(2) the weight of the evidence against the defendant,
167	167	including whether the evidence is likely to be admissible in the
168	168	trial of the offense;
169	169	(3) the history and characteristics of the defendant,
170	170	including:
171	171	(A) the defendant's character, physical and
172	172	mental condition, family ties, employment, financial resources,
173	173	length of residence in and other ties to the community, past
174	174	conduct, criminal history including any prior offenses involving
175	175	peace officers, history relating to drug or alcohol abuse, and
176	176	history of attendance at court proceedings; and
177	177	(B) whether, at the time of the offense, the
178	178	defendant was on community supervision, parole, or mandatory
179	179	supervision or was otherwise released pending trial, sentencing,
180	180	or appeal for any offense, including an offense under federal law or
181	181	the law of another state;
182	182	(4) the nature and seriousness of the danger to the
183	183	community or the victim of the alleged offense as a result of the
184	184	defendant's release on bail, if applicable;
185	185	(5) the nature and seriousness of the risk of
186	186	obstruction to the criminal justice process as a result of the
187	187	defendant's release on bail, if applicable;
188	188	(6) the results of the defendant's pretrial risk
189	189	assessment; and
190	190	(7) any other relevant information.
191	191	(b) The judge shall order the defendant to be released in
192	192	accordance with Article 17.028 unless the judge finds by clear and
193	193	convincing evidence that requiring bail and conditions of release
194	194	is insufficient to reasonably ensure the defendant's appearance in
195	195	court as required or the safety of the community or the victim of
196	196	the alleged offense. If the judge makes the finding described by
197	197	this subsection, the judge shall:
198	198	(1) deny the defendant's bail; and
199	199	(2) issue a written order of denial that includes
200	200	findings of fact and a statement of the judge's reasons for the
201	201	denial.
202	202	Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for
203	203	good cause shown, the court may not authorize a continuance for more
204	204	than five days, excluding weekends and legal holidays.
205	205	Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is
206	206	entitled to appeal a denial of bail. The defendant shall be
207	207	detained in jail pending the appeal. The court of criminal appeals
208	208	shall adopt rules accelerating the disposition by the appellate
209	209	court and the court of criminal appeals of an appeal under this
210	210	article.
211	211	SECTION 4. Section 4, Article 17.09, Code of Criminal
212	212	Procedure, is amended to read as follows:
213	213	Sec. 4. Notwithstanding any other provision of this
214	214	article, the judge or magistrate in whose court a criminal action is
215	215	pending may not order the accused to be rearrested or require the
216	216	accused to give another bond in a higher amount because the accused:
217	217	(1) withdraws a waiver of the right to counsel; [or]
218	218	(2) requests the assistance of counsel, appointed or
219	219	retained; or
220	220	(3) is formally charged with the same offense for
221	221	which the accused was initially arrested and bond was given.
222	222	SECTION 5. Article 17.15, Code of Criminal Procedure, is
223	223	amended to read as follows:
224	224	Art. 17.15. RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a)
225	225	The amount of bail to be required in any case is to be regulated by
226	226	the court, judge, magistrate, or officer taking the bail and is [;
227	227	they are to be] governed [in the exercise of this discretion] by the
228	228	Constitution and [by] the following rules:
229	229	(1) [1.] The bail shall be sufficiently high to give
230	230	reasonable assurance that the undertaking will be complied with.
231	231	(2) [2.] The power to require bail is not to be so used
232	232	as to make it an instrument of oppression.
233	233	(3) [3.] The nature of the offense, [and] the
234	234	circumstances under which the offense [it] was committed, and the
235	235	defendant's criminal history, including any prior offenses
236	236	involving peace officers or family violence, are to be considered.
237	237	(4) [4.] The ability to make bail is to be considered
238	238	[regarded], and proof may be taken upon this point.
239	239	(5) [5.] The future safety of a victim of the alleged
240	240	offense and the community shall be considered.
241	241	(6) The results of a pretrial risk assessment shall be
242	242	considered.
243	243	(b) In this article, "family violence" has the meaning
244	244	assigned by Section 71.004, Family Code.
245	245	SECTION 6. Chapter 17, Code of Criminal Procedure, is
246	246	amended by adding Article 17.251 to read as follows:
247	247	Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A
248	248	magistrate authorizing a defendant's release on bail shall, if
249	249	applicable, provide written notice to the defendant of:
250	250	(1) the conditions of the defendant's release; and
251	251	(2) the penalties of violating a condition of release,
252	252	including the defendant's arrest.
253	253	(b) The notice under Subsection (a) must be provided in a
254	254	manner that is sufficiently clear and specific to serve as a guide
255	255	for the defendant's conduct while released.
256	256	SECTION 7. Section 4, Article 17.42, Code of Criminal
257	257	Procedure, is amended by amending Subsection (a) and adding
258	258	Subsection (a-1) to read as follows:
259	259	(a) Except as otherwise provided by this subsection, if a
260	260	court releases a defendant [an accused] on personal bond on the
261	261	recommendation of a personal bond office, the court shall assess a
262	262	personal bond fee of $20 or three percent of the amount of the bail
263	263	fixed for the defendant [accused], whichever is greater. The court
264	264	may waive the fee or assess a lesser fee if the court determines
265	265	that the defendant is indigent or demonstrates an inability to pay
266	266	the fee or if other good cause is shown. A court that requires a
267	267	defendant to give a personal bond under Article 45.016 may not
268	268	assess a personal bond fee under this subsection. A court may
269	269	require that a personal bond fee assessed under this subsection be
270	270	paid:
271	271	(1) before the defendant is released;
272	272	(2) as a condition of release; or
273	273	(3) as court costs.
274	274	(a-1) Notwithstanding Subsection (a), the court or jailer
275	275	may not refuse to release a defendant based solely on the
276	276	defendant's failure to pay a personal bond fee if the defendant is
277	277	indigent or demonstrates an inability to pay the fee.
278	278	SECTION 8. Section 27.005(a), Government Code, is amended
279	279	to read as follows:
280	280	(a) For purposes of removal under Chapter 87, Local
281	281	Government Code, "incompetency" in the case of a justice of the
282	282	peace includes the failure of the justice to successfully complete:
283	283	(1) within one year after the date the justice is first
284	284	elected, an 80-hour course in the performance of the justice's
285	285	duties, including not less than four hours of instruction regarding
286	286	the justice's duties:
287	287	(A) under Article 15.17, Code of Criminal
288	288	Procedure; and
289	289	(B) with respect to setting bail in criminal
290	290	cases; and
291	291	(2) each following year, a 20-hour course in the
292	292	performance of the justice's duties, including not less than:
293	293	(A) two hours of instruction regarding the
294	294	justice's duties:
295	295	(i) under Article 15.17, Code of Criminal
296	296	Procedure; and
297	297	(ii) with respect to setting bail in
298	298	criminal cases; and
299	299	(B) 10 hours of instruction regarding
300	300	substantive, procedural, and evidentiary law in civil matters.
301	301	SECTION 9. Subchapter C, Chapter 72, Government Code, is
302	302	amended by adding Section 72.033 to read as follows:
303	303	Sec. 72.033. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
304	304	PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
305	305	17.027, Code of Criminal Procedure, the office shall develop an
306	306	automated pretrial risk assessment system and make the system
307	307	available to judges and other magistrates in this state at no cost
308	308	to a county, municipality, or magistrate. The office shall also
309	309	make available nonautomated pretrial risk assessment instruments
310	310	to judges and other magistrates in this state at no cost to a
311	311	county, municipality, or magistrate.
312	312	SECTION 10. The following provisions of the Code of
313	313	Criminal Procedure are repealed:
314	314	(1) Article 17.03(g); and
315	315	(2) Sections 5(c) and 6(c), Article 17.42.
316	316	SECTION 11. (a) Section 27.005(a)(1), Government Code, as
317	317	amended by this Act, applies only to a justice of the peace who is
318	318	first elected or appointed on or after the effective date of this
319	319	Act. A justice of the peace who is first elected or appointed
320	320	before the effective date of this Act is governed by the law in
321	321	effect on the date the justice was first elected or appointed, and
322	322	the former law is continued in effect for that purpose.
323	323	(b) A justice of the peace serving on the effective date of
324	324	this Act must complete the justice's initial two hours of
325	325	instruction required by Section 27.005(a)(2)(A), Government Code,
326	326	as added by this Act, not later than September 1, 2020.
327	327	SECTION 12. Not later than September 1, 2020, the Office of
328	328	Court Administration of the Texas Judicial System shall develop the
329	329	automated pretrial risk assessment system and make available
330	330	automated or nonautomated pretrial risk assessment instruments as
331	331	required by Section 72.033, Government Code, as added by this Act.
332	332	SECTION 13. Not later than September 1, 2020, the judges of
333	333	the county courts, statutory county courts, and district courts
334	334	trying criminal cases in each county shall adopt a pretrial risk
335	335	assessment instrument as required by Article 17.027, Code of
336	336	Criminal Procedure, as added by this Act.
337	337	SECTION 14. The change in law made by this Act applies only
338	338	to a person who is arrested on or after September 1, 2020. A person
339	339	arrested before September 1, 2020, is governed by the law in effect
340	340	immediately before the effective date of this Act, and the former
341	341	law is continued in effect for that purpose.
342	342	SECTION 15. (a) Except as provided by Subsection (b) of
343	343	this section, this Act takes effect September 1, 2019.
344	344	(b) Section 2 of this Act takes effect December 1, 2019, but
345	345	only if the constitutional amendment proposed by the 86th
346	346	Legislature, Regular Session, 2019, is approved by the voters to
347	347	authorize the denial of bail to an accused person if necessary to
348	348	ensure the person's appearance in court and the safety of the
349	349	community and the victim of the alleged offense. If that amendment
350	350	is not approved by the voters, Section 2 of this Act has no effect.