By: Murr, et al. H.B. No. 20
Substitute the following for H.B. No. 20:
By: Vasut C.S.H.B. No. 20
A BILL TO BE ENTITLED
AN ACT
relating to the release of defendants on bail.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Damon Allen Act.
SECTION 2. Article 1.07, Code of Criminal Procedure, is
amended to read as follows:
Art. 1.07. RIGHT TO BAIL. (a) Except as provided by this
article or by Chapter 17, any person [All prisoners] shall be
eligible for bail [bailable] unless the person is accused of
committing 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 accused of committing a violent or sexual
offense, as defined by Section 11a, Article I, Texas Constitution,
may be denied bail pending trial if a judge or magistrate determines
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, law enforcement, or
the victim of the alleged offense.
(c) A person accused of committing an offense under Section
19.03, Penal Code, shall be denied bail pending trial unless a judge
or magistrate determines by clear and convincing evidence that,
based on the existence of extraordinary circumstances, the judge or
magistrate is able to set bail and conditions of release sufficient
to reasonably ensure:
(1) the person's appearance in court as required; and
(2) the safety of the community and of law
enforcement.
(d) A person accused of committing a sexual offense, as
defined by Section 11a, Article I, Texas Constitution, involving a
victim younger than 17 years of age, shall be denied bail pending
trial unless a judge or magistrate determines by clear and
convincing evidence that, based on the existence of extraordinary
circumstances, the judge or magistrate is able to set bail and
conditions of release sufficient to reasonably ensure:
(1) the person's appearance in court as required; and
(2) the safety of the community, law enforcement, and
the victim of the alleged offense.
(e) A judge or magistrate who denies bail under Subsection
(c) or (d) must prepare a written order that includes findings of
fact and a statement explaining the judge or magistrate's reason
for the denial.
SECTION 3. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.021, 17.022, 17.023, 17.024, and
17.028 to read as follows:
Art. 17.021. PRETRIAL PUBLIC SAFETY ASSESSMENT. (a) The
Office of Court Administration of the Texas Judicial System shall
develop and maintain a validated pretrial public safety assessment
that is standardized for statewide use, that is available for use
for purposes of Article 17.15, and that:
(1) is objective, validated for its intended use, and
standardized;
(2) is based on an analysis of empirical data and risk
factors relevant to:
(A) the risk of a defendant intentionally failing
to appear in court as required; and
(B) the safety of the community, law enforcement,
and the victim of the alleged offense if the defendant is released;
(3) does not consider factors that disproportionately
affect persons who are members of racial or ethnic minority groups
or who are socioeconomically disadvantaged;
(4) has been demonstrated to produce results that are
unbiased with respect to the race or ethnicity of defendants and
does not produce a disproportionate outcome; and
(5) is designed to function in a transparent manner
with respect to the public and each defendant to whom the assessment
is applied.
(b) The office shall provide access to the pretrial public
safety assessment to the appropriate officials in each county at no
cost. This subsection may not be construed to require the office to
provide a county official or magistrate with any equipment or
support related to accessing or using the pretrial public safety
assessment.
(c) The office shall collect data relating to the use and
efficiency of the pretrial public safety assessment. The office
shall consider that data, along with other relevant information,
and shall, not later than November 1 of each even-numbered year,
make appropriate changes or updates to the pretrial public safety
assessment to ensure compliance with this article. Not later than
December 1 of each even-numbered year, the office shall submit a
report containing the data collected and describing any changes or
updates made to the pretrial public safety assessment to the
governor, the lieutenant governor, the speaker of the house of
representatives, and the presiding officers of the standing
committees of each house of the legislature with jurisdiction over
the judiciary.
(d) The office shall create and post on the office's public
Internet website a sample result that could occur through the use of
the pretrial public safety assessment and shall include an
explanation of the data relied on by the assessment.
Art. 17.022. PRETRIAL PUBLIC SAFETY ASSESSMENT. (a) 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 established under Article
17.42 for the county in which the defendant is being detained, or
other suitably trained person, use the validated pretrial public
safety assessment developed under Article 17.021 to conduct a
pretrial public safety assessment with respect to the defendant;
and
(2) the results of the assessment conducted under
Subdivision (1) be provided to the magistrate within 48 hours of the
defendant's arrest.
(b) A magistrate may not, without the consent of the
sheriff, order a sheriff or sheriff's department personnel to
conduct a pretrial public safety assessment under Subsection (a).
(c) Notwithstanding Subsection (a), a magistrate may
personally conduct a pretrial public safety assessment using the
validated pretrial public safety assessment developed under
Article 17.021.
(d) The magistrate shall consider the results of the
pretrial public safety assessment before making a bail decision.
Art. 17.023. AUTHORITY TO RELEASE ON BAIL IN CERTAIN CASES.
(a) This article applies only to a defendant charged with an
offense that is:
(1) punishable as a felony; or
(2) a misdemeanor punishable by confinement.
(b) Notwithstanding any other law, a defendant to whom this
article applies may be released on bail only by a magistrate who is:
(1) a resident of this state and one of the counties
served by the magistrate; and
(2) in compliance with the training requirements of
Article 17.024.
(c) A magistrate is not eligible to release on bail a
defendant described by Subsection (a) if the magistrate:
(1) has been removed from office by impeachment, by
the supreme court, by the governor on address to the legislature, by
a tribunal reviewing a recommendation of the State Commission on
Judicial Conduct, or by the legislature's abolition of the
magistrate's court; or
(2) has resigned from office after having received
notice that formal proceedings by the State Commission on Judicial
Conduct have been instituted as provided by Section 33.022,
Government Code, and before final disposition of the proceedings.
Art. 17.024. TRAINING ON DUTIES REGARDING BAIL. (a) The
Office of Court Administration of the Texas Judicial System shall
develop or approve training courses regarding a magistrate's duties
under Article 17.022 and duties with respect to setting bail in
criminal cases. The courses developed must include:
(1) a four-hour training course for a magistrate who
is licensed to practice law in this state;
(2) a 16-hour training course for a magistrate who is
not licensed to practice law in this state; and
(3) a four-hour continuing education course for all
magistrates.
(b) The office shall provide for a method of certifying that
a magistrate has successfully completed a training course required
under this article and has demonstrated competency of the course
content in a manner acceptable to the office.
(c) A magistrate is in compliance with the training
requirements of this article if:
(1) the magistrate is licensed to practice law in this
state and:
(A) not later than the 90th day after the date the
magistrate takes office, the magistrate successfully completes the
course described by Subsection (a)(1);
(B) successfully completes the course described
by Subsection (a)(3) in each subsequent state fiscal biennium in
which the magistrate serves; and
(C) demonstrates competency in a manner
acceptable to the office; or
(2) the magistrate is not licensed to practice law in
this state and:
(A) not later than the 90th day after the date the
magistrate takes office, the magistrate successfully completes the
course described by Subsection (a)(2);
(B) successfully completes the course described
by Subsection (a)(3) in each subsequent state fiscal biennium in
which the magistrate serves; and
(C) demonstrates competency in a manner
acceptable to the office.
(c-1) Notwithstanding Subsection (c), a magistrate who is
serving on December 1, 2021, is considered to be in compliance with
Subsection (c)(1)(A) or (c)(2)(A) if the magistrate successfully
completes the applicable training course not later than June 1,
2022. This subsection expires January 1, 2023.
(d) Any course developed or approved by the office under
this article may be administered by the Texas Justice Court
Training Center, the Texas Municipal Courts Education Center, the
Texas Association of Counties, the Texas Center for the Judiciary,
or a similar entity.
Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
but not later than 48 hours after a defendant is arrested, the
magistrate performing duties under Article 15.17 with respect to
the defendant shall order, after considering all circumstances and
the results of the pretrial public safety assessment conducted
under Article 17.022, that the defendant be:
(1) released on personal bond with or without
conditions;
(2) released on monetary bond with or without
conditions; or
(3) denied bail in accordance with the Texas
Constitution and other law.
(b) In making a bail decision under this article, the
magistrate shall impose, as applicable, the least restrictive
conditions and minimum amount of bail, whether personal bond or
monetary bond, necessary to reasonably ensure the defendant's
appearance in court as required and the safety of the community, law
enforcement, and the victim of the alleged offense.
(c) In each criminal case, unless specifically provided by
other law, there is a rebuttable presumption that bail, conditions
of release, or both bail and conditions of release are sufficient to
reasonably ensure the defendant's appearance in court as required
and the safety of the community, law enforcement, and the victim of
the alleged offense. For purposes of rebutting the presumption,
the court is not required to hold an evidentiary hearing.
(d) 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 public safety assessment.
(e) 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
public safety assessment has been conducted with respect to the
defendant or before a bail decision has been made by a magistrate
under this article.
SECTION 4. Article 17.03, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsection (b-2) to
read as follows:
(b) Only the court before whom the case is pending may
release on personal bond a defendant who:
(1) is charged with an offense under the following
sections of the Penal Code:
(A) [Section 19.03 (Capital Murder);
[(B)] Section 20.04 (Aggravated Kidnapping);
(B) [(C) Section 22.021 (Aggravated Sexual
Assault);
[(D) Section 22.03 (Deadly Assault on Law
Enforcement or Corrections Officer, Member or Employee of Board of
Pardons and Paroles, or Court Participant);
[(E)] Section 22.04 (Injury to a Child, Elderly
Individual, or Disabled Individual);
(C) [(F)] Section 29.03 (Aggravated Robbery);
(D) [(G)] Section 30.02 (Burglary); or
(E) [(H)] Section 71.02 (Engaging in Organized
Criminal Activity);
[(I) Section 21.02 (Continuous Sexual Abuse of
Young Child or Children); or
[(J) Section 20A.03 (Continuous Trafficking of
Persons);]
(2) is charged with a felony under Chapter 481, Health
and Safety Code, or Section 485.033, Health and Safety Code,
punishable by imprisonment for a minimum term or by a maximum fine
that is more than a minimum term or maximum fine for a first degree
felony; or
(3) does not submit to testing for the presence of a
controlled substance in the defendant's body as requested by the
court or magistrate under Subsection (c) of this article or submits
to testing and the test shows evidence of the presence of a
controlled substance in the defendant's body.
(b-2) Notwithstanding any other law, a defendant may not be
released on personal bond if the defendant is charged with an
offense under the following provisions of the Penal Code:
(1) Section 19.02 (Murder);
(2) Section 19.03 (Capital Murder);
(3) Section 20A.02 (Trafficking of Persons);
(4) Section 20A.03 (Continuous Trafficking of
Persons);
(5) Section 21.02 (Continuous Sexual Abuse of Young
Child or Children);
(6) Section 21.11 (Indecency with a Child);
(7) Section 22.021 (Aggravated Sexual Assault);
(8) Section 43.04 (Aggravated Promotion of
Prostitution);
(9) Section 43.05 (Compelling Prostitution); or
(10) Section 43.25 (Sexual Performance by a Child).
SECTION 5. Article 17.15, Code of Criminal Procedure, is
amended to read as follows:
Art. 17.15. RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a)
The amount of bail to be required in any case is to be regulated by
the court, judge, magistrate, or officer taking the bail in
accordance with Articles 17.20, 17.21, and 17.22 and is [; they are
to be] governed [in the exercise of this discretion] by the
Constitution and [by] the following rules:
(1) [1.] The bail shall be sufficiently high to give
reasonable assurance that the undertaking will be complied with.
(2) [2.] The power to require bail is not to be so
used as to make it an instrument of oppression.
(3) [3.] The nature of the offense, [and] the
circumstances under which the offense [it] was committed, and the
defendant's criminal history, including acts of family violence,
shall [are to] be considered, except that a misdemeanor or an
offense under Chapter 481, Health and Safety Code, that occurred
more than 10 years before the current offense may not be considered
unless the previous offense involved the manufacture or delivery of
a controlled substance or caused bodily injury, as defined by
Section 1.07, Penal Code, to another, or unless good cause
otherwise exists for considering that offense.
(4) [4.] The ability to make bail shall [is to] be
considered [regarded], and proof may be taken upon this point.
(5) [5.] The future safety of a victim of the alleged
offense, law enforcement, and the community shall be considered.
(6) The results of any pretrial public safety
assessment conducted using the validated pretrial public safety
assessment developed under Article 17.021 shall be considered.
(7) Any other relevant facts or circumstances may be
considered.
(b) In this article, "family violence" has the meaning
assigned by Section 71.004, Family Code.
SECTION 6. Chapter 17, Code of Criminal Procedure, is
amended by adding Articles 17.50 and 17.51 to read as follows:
Art. 17.50. NOTICE OF CONDITIONS. (a) As soon as
practicable but not later than the next business day after the date
a magistrate issues an order imposing a condition of release on bond
for a defendant or modifying or removing a condition previously
imposed, the clerk of the court shall send a copy of the order to:
(1) the appropriate attorney representing the state;
and
(2) either:
(A) the chief of police in the municipality where
the defendant resides, if the defendant resides in a municipality;
or
(B) the sheriff of the county where the defendant
resides, if the defendant does not reside in a municipality.
(b) A clerk of the court may delay sending a copy of the
order under Subsection (a) only if the clerk lacks information
necessary to ensure service and enforcement.
(c) If an order described by Subsection (a) prohibits a
defendant from going to or near a child care facility or school, the
clerk of the court shall send a copy of the order to the child care
facility or school.
(d) The copy of the order and any related information may be
sent electronically or in another manner that can be accessed by the
recipient.
(e) The magistrate or the magistrate's designee shall
provide written notice to the defendant of:
(1) the conditions of release on bond; and
(2) the penalties for violating a condition of
release.
(f) The magistrate shall make a separate record of the
notice provided to the defendant under Subsection (e).
Art. 17.51. REPORTING OF CONDITIONS. A chief of police or
sheriff who receives a copy of an order under Article 17.50(a), or
the chief's or sheriff's designee, shall, as soon as practicable but
not later than the 10th day after the date the copy is received,
enter information relating to the condition of release into the
appropriate database of the statewide law enforcement information
system maintained by the Department of Public Safety or modify or
remove information, as appropriate.
SECTION 7. As soon as practicable but not later than
December 1, 2021, the Office of Court Administration of the Texas
Judicial System shall create and provide access to the appropriate
officials in each county the validated pretrial public safety
assessment developed under Article 17.021, Code of Criminal
Procedure, as added by this Act, and any related forms and
materials, at no cost. If those items are made available before
December 1, 2021, the office shall notify each court clerk, judge or
other magistrate, and office of an attorney representing the state.
SECTION 8. As soon as practicable but not later than
December 1, 2021, the Office of Court Administration of the Texas
Judicial System shall develop or approve and make available the
training courses and certification method required under Article
17.024, Code of Criminal Procedure, as added by this Act. If those
items are made available before December 1, 2021, the office shall
notify each court clerk, judge or other magistrate, and office of an
attorney representing the state.
SECTION 9. The changes in law made by this Act apply only to
a person who is arrested on or after the effective date of this Act.
A person arrested before the effective date of this Act 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 10. (a) Except as provided by Subsections (b) and
(c) of this section, this Act takes effect December 1, 2021.
(b) Articles 17.021 and 17.024, Code of Criminal Procedure,
as added by this Act, and Sections 7 and 8 of this Act take effect
September 1, 2021.
(c) Section 2 of this Act takes effect December 1, 2021, but
only if the constitutional amendment proposed by the 87th
Legislature, Regular Session, 2021, 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, law enforcement, and the
victim of the alleged offense, and requiring the denial of bail to a
person accused of capital murder or a sexual offense involving
children absent extraordinary circumstances is approved by the
voters. If that amendment is not approved by the voters, Section 2
of this Act has no effect.