By: Murr, et al. 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. Except as provided by this
article or by Chapter 17, any person [All prisoners] shall be
eligible for bail [bailable] unless denial of bail is expressly
permitted by the Texas Constitution [for capital 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.
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. PUBLIC SAFETY REPORT SYSTEM. (a) The Office
of Court Administration of the Texas Judicial System shall develop
and maintain a validated public safety report system 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
factors relevant to:
(A) the likelihood 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 with respect to whom a
public safety report is prepared.
(b) The office shall provide access to the public safety
report system 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 public safety report
system.
(c) The office shall collect data relating to the use and
efficiency of the public safety report system. 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 public safety report system
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 public safety report system 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 public safety report system and shall include an explanation of
the data used for preparing a public safety report.
Art. 17.022. PUBLIC SAFETY REPORT. (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 public safety
report system developed under Article 17.021 to prepare a public
safety report, or another public safety report approved by the
Office of Court Administration of the Texas Judicial System, with
respect to the defendant; and
(2) the public safety report prepared under
Subdivision (1) be provided to the magistrate as soon as
practicable but not later than 48 hours after the defendant's
arrest.
(b) A magistrate may not, without the consent of the
sheriff, order a sheriff or sheriff's department personnel to
prepare a public safety report under Subsection (a).
(c) Notwithstanding Subsection (a), a magistrate may
personally prepare a public safety report before or while making a
bail decision using the validated public safety report system
developed under Article 17.021.
(d) The magistrate shall consider the public safety report
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,
in consultation with the court of criminal appeals, develop or
approve training courses regarding a magistrate's duties,
including duties under Article 17.022 and duties with respect to
setting bail in criminal cases. The courses developed must
include:
(1) a 16-hour initial training course; and
(2) a four-hour continuing education course.
(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) not later than the 90th day after the date the
magistrate takes office, the magistrate successfully completes the
course described by Subsection (a)(1);
(2) the magistrate successfully completes the course
described by Subsection (a)(2) in each subsequent state fiscal
biennium in which the magistrate serves; and
(3) the magistrate 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) if the magistrate successfully completes the
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, a
magistrate shall order, after individualized consideration of all
circumstances and of the factors required by Article 17.15, that
the defendant be:
(1) granted personal bond with or without conditions;
(2) granted 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, if any, and minimum amount of bail, if any, 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 setting bail or 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 factors in Article 17.15.
(e) A defendant who is denied bail or who is unable to give
bail in the amount required by any bail schedule or standing order
related to bail shall be provided with the warnings described by
Article 15.17.
(f) A defendant who is unable to give bail in an amount
required by any bail schedule or standing order related to bail may
file with the applicable magistrate a sworn affidavit declaring the
maximum amount that the defendant would be able to pay or provide as
security within 24 hours of arrest for purposes of obtaining a bail
bond. The affidavit must set out sufficient facts to clearly
establish that amount, given the totality of the defendant's
circumstances.
(g) A defendant who files an affidavit under Subsection (f)
is entitled to a hearing before the magistrate on the bail amount.
At the hearing or a review, the magistrate shall consider the facts
stated in the affidavit and the rules established by Article 17.15
and set the defendant's bail. The magistrate may deviate from any
bail schedule or standing order related to bail in setting a
defendant's bail under this subsection. The magistrate shall issue
oral or written findings of fact supporting the decision.
(h) 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 public
safety report has been prepared with respect to the defendant or
before a bail decision has been made by a magistrate under this
article.
(i) In making a bail decision under this article, a
magistrate may direct either of the following to monitor the
defendant's compliance with a condition of bond set by the
magistrate:
(1) the personal bond office established under Article
17.42 for the county in which the defendant is being detained; or
(2) the community supervision and corrections
department established under Section 76.002, Government Code, for
the county in which the defendant is being detained.
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), if the defendant is not alleged to have engaged in
conduct constituting an offense under Section 43.02(a);
(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 and the associated conditions of bail to be
required in any case are [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 [; they] are [to be] governed [in the
exercise of this discretion] by the Constitution and [by] the
following rules:
(1) [1.] The amount of bail, if any, and associated
conditions of bail, if any, shall be sufficient [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) Any public safety report prepared using the
validated public safety report system 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, 17.51, and 17.52 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).
(g) The Office of Court Administration of the Texas Judicial
System shall promulgate a form for use by a magistrate in providing
notice to the defendant under Subsection (e). The form must include
the relevant statutory language from the provisions of this chapter
under which a condition of release on bond may be imposed on a
defendant.
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.
Art. 17.52. PROCEDURES AND FORMS RELATED TO CASH BAIL BOND.
The Office of Court Administration of the Texas Judicial System
shall develop statewide procedures and prescribe forms to be used
by a court to facilitate:
(1) the refund of a cash bail bond, with an emphasis on
refunding the bail bond to the person in whose name the receipt
described by Article 17.02 was issued; and
(2) the application of a cash bail bond paid by a
person other than a defendant to the defendant's outstanding court
costs and fees.
SECTION 7. (a) Article 17.02, Code of Criminal Procedure,
is amended to read as follows:
Art. 17.02. DEFINITION OF "BAIL BOND". A "bail bond" is a
written undertaking entered into by the defendant and the
defendant's sureties for the appearance of the principal therein
before a court or magistrate to answer a criminal accusation;
provided, however, that the defendant on execution of the bail bond
may deposit with the custodian of funds of the court in which the
prosecution is pending current money of the United States in the
amount of the bond in lieu of having sureties signing the same. Any
cash funds deposited under this article shall be receipted for by
the officer receiving the funds and, on order of the court, be
refunded in the amount shown on the face of the receipt less the
administrative fee authorized by Section 117.055, Local Government
Code, if applicable, after the defendant complies with the
conditions of the defendant's bond, to:
(1) any person in the name of whom a receipt was
issued, including the defendant if a receipt was issued to the
defendant; or
(2) the defendant, if no other person is able to
produce a receipt for the funds.
(b) Section 117.055, Local Government Code, is amended by
amending Subsection (a) and adding Subsections (a-1) and (a-2) to
read as follows:
(a) Except as provided by Subsection (a-1), to [To]
compensate the county for the accounting and administrative
expenses incurred in handling the registry funds that have not
earned interest, including funds in a special or separate account,
the clerk shall, at the time of withdrawal, deduct from the amount
of the withdrawal a fee in an amount equal to five percent of the
withdrawal but that may not exceed $50. Withdrawal of funds
generated from a case arising under the Family Code is exempt from
the fee deduction provided by this section.
(a-1) A clerk may not deduct a fee under Subsection (a) from
a withdrawal of funds generated by the collection of a cash bond or
cash bail bond if in the case for which the bond was taken:
(1) the defendant was found not guilty after a trial or
appeal; or
(2) the complaint, information, or indictment was
dismissed without a plea of guilty or nolo contendere being
entered.
(a-2) On the request of a person to whom withdrawn funds
generated by the collection of a cash bond or cash bail bond were
disbursed, the clerk shall refund to the person the amount of the
fee deducted under Subsection (a) if:
(1) subsequent to the deduction, a court makes or
enters an order or ruling in the case for which the bond was taken;
and
(2) had the court made or entered the order or ruling
before the withdrawal of funds occurred, the deduction under
Subsection (a) would have been prohibited under Subsection (a-1).
(c) Section 117.055, Local Government Code, as amended by
this section, applies only to a withdrawal of funds from a court
registry under Section 117.055, Local Government Code, made on or
after September 1, 2021. A withdrawal of funds from a court
registry made before September 1, 2021, is governed by the law in
effect on the date the withdrawal was made, and the former law is
continued in effect for that purpose.
(d) This section takes effect September 1, 2021.
SECTION 8. 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 public safety report system
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 9. (a) As soon as practicable but not later than
December 1, 2021, the Office of Court Administration of the Texas
Judicial System shall:
(1) promulgate the form required by Article 17.50(g),
Code of Criminal Procedure, as added by this Act; and
(2) develop or approve and make available the training
courses and certification method as described by Article 17.024,
Code of Criminal Procedure, as added by this Act, and develop the
procedures and prescribe the forms required by Article 17.52, Code
of Criminal Procedure, as added by this Act.
(b) If the items described by Subsection (a) of this section
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 10. 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 11. (a) Except as provided by Subsection (b) 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 8 and 9 of this Act take effect
September 1, 2021.