Texas 2021 - 87th Regular

Texas House Bill HB2077 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	87R11350 ADM-F
2		-	By: Reynolds, Morales Shaw H.B. No. 2077
3		-	Substitute the following for H.B. No. 2077:
4		-	By: Murr C.S.H.B. No. 2077
	1	+	87R5813 ADM-F
	2	+	By: Reynolds H.B. No. 2077
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	10		SECTION 1. This Act may be cited as the Damon Allen Act.
13	11		SECTION 2. Article 1.07, Code of Criminal Procedure, is
14	12		amended to read as follows:
15	13		Art. 1.07. RIGHT TO BAIL. (a) Except as provided by
16	14		Subsection (b) or Chapter 17, any person [All prisoners] shall be
17	15		eligible for bail, [bailable] unless the person is accused of a
18	16		[for] capital offense for which [offenses when] the proof is
19	17		evident. This provision shall not be [so] construed [as] to prevent
20	18		bail after indictment found upon examination of the evidence, in
21	19		such manner as may be prescribed by law.
22	20		(b) A person who is charged with a felony offense involving
23	21		the use or exhibition of a deadly weapon or who is charged with an
24	22		offense listed in Article 42A.054(a) other than a nonviolent drug
25	23		offense under Chapter 481, Health and Safety Code, may be denied
26	24		bail pending trial if a judge or magistrate determines by clear and
27	25		convincing evidence that requiring bail and conditions of release
28	26		is insufficient to reasonably ensure:
29	27		(1) the person's appearance in court as required; or
30	28		(2) the safety of the community or of any person,
31	29		including the victim of the alleged offense.
32	30		SECTION 3. Chapter 17, Code of Criminal Procedure, is
33	31		amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035,
34	32		17.036, and 17.037 to read as follows:
35	33		Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of
36	34		the county courts, statutory county courts, and district courts
37	35		trying criminal cases in each county shall adopt an instrument to be
38	36		used in conducting a pretrial risk assessment of a defendant
39	37		charged with an offense in that county. The instrument adopted must
40	38		be the automated pretrial risk assessment system developed under
41	39		Section 72.036, Government Code, or another instrument that is:
42	40		(1) objective, validated for its intended use, and
43	41		standardized;
44	42		(2) based on an analysis of empirical data and risk
45	43		factors relevant to:
46	44		(A) the risk of a defendant failing to appear in
47	45		court as required; and
48	46		(B) the safety of the community or of any person,
49	47		including the victim of the alleged offense, if the defendant is
50	48		released;
51	49		(3) transparent and available for review by the
52	50		public; and
53	51		(4) designed to reduce the likelihood of bail
54	52		decisions being affected by bias based on sex, race, or other
55	53		protected classifications.
56	54		(b) A magistrate considering the release on bail of a
57	55		defendant charged with an offense punishable as a Class B
58	56		misdemeanor or any higher category of offense shall order that:
59	57		(1) the personal bond office established under Article
60	58		17.42 for the county in which the defendant is being detained, or
61	59		other suitably trained person, use the instrument adopted under
62	60		Subsection (a) to conduct a pretrial risk assessment with respect
63	61		to the defendant; and
64	62		(2) the results of the assessment be provided to the
65	63		magistrate without unnecessary delay to ensure that the magistrate
66	64		is able to make a bail decision under Article 17.028 within the
67	65		period required by Subsection (a) of that article.
68	66		(c) A magistrate may not, without the consent of the
69	67		sheriff, order a sheriff or sheriff's department personnel to
70	68		conduct a pretrial risk assessment under Subsection (b).
71	69		(d) Notwithstanding Subsection (b), a magistrate may
72	70		personally conduct a pretrial risk assessment using an instrument
73	71		adopted under Subsection (a).
74	72		(e) The results of any pretrial risk assessment conducted
75	73		under this article must be promptly provided to the defendant and
76	74		the attorney representing the state.
77	75		(f) The magistrate must consider the results of the pretrial
78	76		risk assessment before making a bail decision under Article 17.028.
79	77		Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
80	78		but not later than 48 hours after a defendant is arrested, a
81	79		magistrate shall hold a proceeding open to the public and, after
82	80		considering all circumstances and the results of the pretrial risk
83	81		assessment conducted under Article 17.027, shall order that the
84	82		defendant be:
85	83		(1) released on personal bond without conditions;
86	84		(2) released on personal bond or monetary bail bond
87	85		with any condition the magistrate determines necessary to
88	86		reasonably ensure the defendant's appearance in court as required
89	87		and the safety of the community and of any person, including the
90	88		victim of the alleged offense; or
91	89		(3) denied bail in accordance with this chapter and
92	90		other law.
93	91		(b) In making a bail decision under this article, the
94	92		magistrate shall impose, as applicable, the least restrictive
95	93		conditions and minimum amount of bail, whether personal bond or
96	94		monetary bail bond, necessary to reasonably ensure the defendant's
97	95		appearance in court as required and the safety of the community and
98	96		of any person, including the victim of the alleged offense.
99	97		(c) In each criminal case, there is a rebuttable presumption
100	98		that personal bond, conditions of release, or both personal bond
101	99		and conditions of release are sufficient to reasonably ensure the
102	100		defendant's appearance in court as required and the safety of the
103	101		community and of any person, including the victim of the alleged
104	102		offense. For purposes of rebutting the presumption established by
105	103		this subsection, the court may consider the results of the
106	104		defendant's pretrial risk assessment and other information as
107	105		applicable.
108	106		(d) A magistrate may not require a defendant to provide a
109	107		monetary bail bond for the sole purpose of preventing the
110	108		defendant's release on bail. A defendant who remains in custody for
111	109		more than 48 hours after a magistrate enters an order requiring the
112	110		defendant to provide a monetary bail bond is entitled to a bail
113	111		review hearing under Article 17.034.
114	112		(e) A magistrate who denies a defendant's bail shall inform
115	113		the defendant that the defendant is entitled to a bail review
116	114		hearing under Article 17.034 and, as soon as practicable but not
117	115		later than 24 hours after denying bail, issue a written order of
118	116		denial that includes findings of fact and a statement of the
119	117		magistrate's reasons for the denial.
120	118		(f) If the magistrate determines that a defendant is not
121	119		indigent and is able to pay any costs related to a condition of the
122	120		defendant's bail, the magistrate shall assess the costs as court
123	121		costs or order the costs to be paid directly by the defendant as a
124	122		condition of release.
125	123		(g) A judge may enter a standing order to release defendants
126	124		charged with specified offenses on personal bond before a pretrial
127	125		risk assessment has been conducted, but may not otherwise adopt a
128	126		bail schedule or enter a standing order related to bail that:
129	127		(1) is inconsistent with this article; or
130	128		(2) authorizes a magistrate to make a bail decision
131	129		for a defendant without considering the results of the defendant's
132	130		pretrial risk assessment or the ability of the defendant to pay a
133	131		monetary bail bond.
134	132		(h) This article does not prohibit a sheriff or other peace
135	133		officer, or a jailer licensed under Chapter 1701, Occupations Code,
136	134		from accepting bail under Article 17.20 or 17.22 before a pretrial
137	135		risk assessment has been conducted with respect to the defendant or
138	136		before a bail decision has been made by a magistrate under this
139	137		article.
140	138		Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION.
141	139		A defendant who appears before a magistrate as ordered by citation
142	140		may not be temporarily detained for purposes of conducting a
143	141		pretrial risk assessment or for a magistrate to issue a bail
144	142		decision. The magistrate, after performing the duties imposed by
145	143		Article 15.17, shall release the defendant on personal bond, unless
146	144		the defendant is lawfully detained on another matter.
147	145		Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as
148	146		practicable after a defendant's bail is denied under Article 17.028
149	147		or after the defendant becomes eligible for a bail review hearing
150	148		under Article 17.028(d), but not later than the third day after the
151	149		date the magistrate issues the written order denying or setting
152	150		bail, as applicable, the court in which the defendant's case is
153	151		pending shall conduct a hearing regarding whether to detain the
154	152		defendant pending the trial of the offense.
155	153		(b) A defendant may voluntarily waive in writing the
156	154		defendant's right to a bail review hearing. The court or the
157	155		attorney representing the state may not direct or encourage the
158	156		defendant to waive the defendant's right to a bail review hearing. A
159	157		waiver under this subsection shall be filed with and become part of
160	158		the record of the proceedings. A waiver obtained in violation of
161	159		this subsection is presumed invalid. At any time, a defendant may
162	160		withdraw a waiver under this subsection and request a bail review
163	161		hearing, which must be held not later than the third day after the
164	162		date of the withdrawal.
165	163		(c) A defendant is entitled to be represented by counsel at
166	164		a bail review hearing, and an indigent defendant is entitled to have
167	165		counsel appointed to represent the defendant for that purpose.
168	166		(d) The defendant may present any relevant information at
169	167		the bail review hearing, including by testifying, presenting
170	168		witnesses, and cross-examining witnesses presented by the attorney
171	169		representing the state.
172	170		(e) The rules of evidence applicable to criminal trials do
173	171		not apply to a bail review hearing. The defendant or the attorney
174	172		representing the state may request a proffer of a witness's
175	173		testimony before the witness is presented.
176	174		(f) A defendant may not use a bail review hearing to:
177	175		(1) seek discovery or conduct an examining trial; or
178	176		(2) harass a victim of or witness to the alleged
179	177		offense.
180	178		(g) At any time during the period occurring after the bail
181	179		review hearing concludes and before the trial of the offense
182	180		commences, and regardless of whether the defendant was released or
183	181		confined as a result of that hearing, the court may reopen the bail
184	182		review hearing based on new information that the court determines
185	183		is material to the bail decision made with respect to the defendant.
186	184		Art. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a)
187	185		In a bail review hearing, the court shall consider:
188	186		(1) the nature and circumstances of the offense
189	187		charged;
190	188		(2) the weight of the evidence against the defendant,
191	189		including whether the evidence is likely to be admissible in the
192	190		trial of the offense;
193	191		(3) the history and characteristics of the defendant,
194	192		including:
195	193		(A) the defendant's character, physical and
196	194		mental condition, family ties, employment, financial resources,
197	195		length of residence in and other ties to the community, past
198	196		conduct, criminal history including any prior offenses involving
199	197		peace officers, history relating to drug or alcohol abuse, and
200	198		history of attendance at court proceedings related to a charge for a
201	199		Class B misdemeanor or any higher category of offense; and
202	200		(B) whether, at the time of the offense, the
203	201		defendant was on community supervision, parole, or mandatory
204	202		supervision or was otherwise released pending trial, sentencing,
205	203		or appeal for any offense, including an offense under federal law or
206	204		the law of another state;
207	205		(4) the nature and seriousness of the danger to the
208	206		community or to any person, including the victim of the alleged
209	207		offense as a result of the defendant's release on bail, if
210	208		applicable;
211	209		(5) the nature and seriousness of the risk of
212	210		obstruction to the criminal justice process as a result of the
213	211		defendant's release on bail, if applicable;
214	212		(6) the results of the defendant's pretrial risk
215	213		assessment; and
216	214		(7) any other relevant information.
217	215		(b) The judge shall reduce any applicable amount of monetary
218	216		bail in accordance with the defendant's ability to pay and shall
219	217		order the defendant to be released in accordance with Article
220	218		17.028 unless the judge finds by clear and convincing evidence that
221	219		requiring bail and conditions of release is insufficient to
222	220		reasonably ensure the defendant's appearance in court as required
223	221		or the safety of the community or of any person, including the
224	222		victim of the alleged offense. If the judge makes the finding
225	223		described by this subsection, the judge shall:
226	224		(1) deny the defendant's bail; and
227	225		(2) issue a written order of denial that includes:
228	226		(A) findings of fact;
229	227		(B) a statement of the judge's reasons for the
230	228		denial; and
231	229		(C) an explanation of how the denial was
232	230		supported by the results of the defendant's pretrial risk
233	231		assessment.
234	232		Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for
235	233		good cause shown, the court may not authorize a continuance for more
236	234		than five days, excluding weekends and legal holidays.
237	235		Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is
238	236		entitled to appeal a denial of bail. The defendant shall be
239	237		detained in jail pending the appeal. The court of criminal appeals
240	238		shall adopt rules accelerating the disposition by the appellate
241	239		court and the court of criminal appeals of an appeal under this
242	240		article.
243	241		SECTION 4. Section 4, Article 17.09, Code of Criminal
244	242		Procedure, is amended to read as follows:
245	243		Sec. 4. Notwithstanding any other provision of this
246	244		article, the judge or magistrate in whose court a criminal action is
247	245		pending may not order the accused to be rearrested or require the
248	246		accused to give another bond in a higher amount because the accused:
249	247		(1) withdraws a waiver of the right to counsel; [or]
250	248		(2) requests the assistance of counsel, appointed or
251	249		retained; or
252	250		(3) is formally charged with the same offense for
253	251		which the accused was initially arrested and bond was given.
254	252		SECTION 5. Article 17.15, Code of Criminal Procedure, is
255	253		amended to read as follows:
256	254		Art. 17.15. RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a)
257	255		The amount of bail to be required in any case is to be regulated by
258	256		the court, judge, magistrate, or officer taking the bail and is [;
259	257		they are to be] governed [in the exercise of this discretion] by the
260	258		Constitution and [by] the following rules:
261	259		(1) [1.] The bail shall be sufficiently high to give
262	260		reasonable assurance that the undertaking will be complied with.
263	261		(2) [2.] The power to require bail is not to be so used
264	262		as to make it an instrument of oppression.
265	263		(3) [3.] The nature of the offense, [and] the
266	264		circumstances under which the offense [it] was committed, and the
267	265		defendant's criminal history, including any prior offenses
268	266		involving peace officers or family violence, are to be considered.
269	267		(4) [4.] The ability to make bail is to be considered
270	268		[regarded], and proof shall [may] be taken upon this point before a
271	269		bail decision is made under Article 17.028.
272	270		(5) [5.] The future safety of the community and of any
273	271		person, including a victim of the alleged offense, [and the
274	272		community] shall be considered.
275	273		(6) The results of a pretrial risk assessment shall be
276	274		considered.
277	275		(b) In this article, "family violence" has the meaning
278	276		assigned by Section 71.004, Family Code.
279	277		SECTION 6. Chapter 17, Code of Criminal Procedure, is
280	278		amended by adding Article 17.251 to read as follows:
281	279		Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A
282	280		magistrate authorizing a defendant's release on bail shall, if
283	281		applicable, provide written notice to the defendant of:
284	282		(1) the conditions of the defendant's release; and
285	283		(2) the penalties of violating a condition of release,
286	284		including the defendant's arrest.
287	285		(b) The notice under Subsection (a) must be provided in a
288	286		manner that is sufficiently clear and specific to serve as a guide
289	287		for the defendant's conduct while released.
290	288		SECTION 7. Section 4, Article 17.42, Code of Criminal
291	289		Procedure, is amended by amending Subsection (a) and adding
292	290		Subsection (a-1) to read as follows:
293	291		(a) Except as otherwise provided by this subsection, if a
294	292		court releases a defendant [an accused] on personal bond on the
295	293		recommendation of a personal bond office, the court shall assess a
296	294		personal bond reimbursement fee of $20 or three percent of the
297	295		amount of the bail set [fixed] for the defendant [accused],
298	296		whichever is greater. The court may waive the fee or assess a
299	297		lesser fee if the court determines that the defendant is indigent or
300	298		demonstrates an inability to pay the fee or if other good cause is
301	299		shown. A court that requires a defendant to give a personal bond
302	300		under Article 45.016 may not assess a personal bond reimbursement
303	301		fee under this subsection. A court may require that a personal bond
304	302		reimbursement fee assessed under this subsection be paid as court
305	303		costs.
306	304		(a-1) Notwithstanding Subsection (a), the court or jailer
307	305		may not refuse to release a defendant based solely on the
308	306		defendant's failure to pay a personal bond reimbursement fee if the
309	307		defendant is indigent or demonstrates an inability to pay the fee.
310	308		SECTION 8. Section 27.005(a), Government Code, is amended
311	309		to read as follows:
312	310		(a) For purposes of removal under Chapter 87, Local
313	311		Government Code, "incompetency" in the case of a justice of the
314	312		peace includes the failure of the justice to successfully complete:
315	313		(1) within one year after the date the justice is first
316	314		elected, an 80-hour course in the performance of the justice's
317	315		duties, including not less than four hours of instruction regarding
318	316		the justice's duties:
319	317		(A) under Article 15.17, Code of Criminal
320	318		Procedure; and
321	319		(B) with respect to setting bail in criminal
322	320		cases; and
323	321		(2) each following year, a 20-hour course in the
324	322		performance of the justice's duties, including not less than:
325	323		(A) two hours of instruction regarding the
326	324		justice's duties:
327	325		(i) under Article 15.17, Code of Criminal
328	326		Procedure; and
329	327		(ii) with respect to setting bail in
330	328		criminal cases; and
331	329		(B) 10 hours of instruction regarding
332	330		substantive, procedural, and evidentiary law in civil matters.
333	331		SECTION 9. Subchapter C, Chapter 72, Government Code, is
334	332		amended by adding Section 72.036 to read as follows:
335	333		Sec. 72.036. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
336	334		PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
337	335		17.027, Code of Criminal Procedure, the office shall develop an
338	336		automated pretrial risk assessment system and make the system
339	337		available to judges and other magistrates in this state at no cost
340	338		to a county, municipality, or magistrate. The office shall also
341	339		make available nonautomated pretrial risk assessment instruments
342	340		to judges and other magistrates in this state at no cost to a
343	341		county, municipality, or magistrate.
344	342		SECTION 10. The following provisions of the Code of
345	343		Criminal Procedure are repealed:
346	344		(1) Article 17.03(g); and
347	345		(2) Sections 5(c) and 6(c), Article 17.42.
348	346		SECTION 11. (a) Section 27.005(a)(1), Government Code, as
349	347		amended by this Act, applies only to a justice of the peace who is
350	348		first elected or appointed on or after the effective date of this
351	349		Act. A justice of the peace who is first elected or appointed
352	350		before the effective date of this Act is governed by the law in
353	351		effect on the date the justice was first elected or appointed, and
354	352		the former law is continued in effect for that purpose.
355	353		(b) A justice of the peace serving on the effective date of
356	354		this Act must complete the justice's initial two hours of
357	355		instruction required by Section 27.005(a)(2)(A), Government Code,
358	356		as added by this Act, not later than January 1, 2022.
359	357		SECTION 12. Not later than January 1, 2022, the Office of
360	358		Court Administration of the Texas Judicial System shall develop the
361	359		automated pretrial risk assessment system and make available
362	360		automated or nonautomated pretrial risk assessment instruments as
363	361		required by Section 72.036, Government Code, as added by this Act.
364	362		SECTION 13. Not later than January 1, 2022, the judges of
365	363		the county courts, statutory county courts, and district courts
366	364		trying criminal cases in each county shall adopt a pretrial risk
367	365		assessment instrument as required by Article 17.027, Code of
368	366		Criminal Procedure, as added by this Act.
369	367		SECTION 14. The change in law made by this Act applies only
370	368		to a person who is arrested on or after January 1, 2022. A person
371	369		arrested before January 1, 2022, is governed by the law in effect
372	370		immediately before the effective date of this Act, and the former
373	371		law is continued in effect for that purpose.
374	372		SECTION 15. (a) Except as provided by Subsection (b) of
375	373		this section, this Act takes effect September 1, 2021.
376	374		(b) Section 2 of this Act takes effect December 1, 2021, but
377	375		only if the constitutional amendment proposed by the 87th
378	376		Legislature, Regular Session, 2021, authorizing the denial of bail
379		-	to an accused person if a judge or magistrate determines by clear
380		-	and convincing evidence that requiring bail and conditions of
381		-	release is insufficient to reasonably ensure the person's
382		-	appearance in court or the safety of the community or of any person,
	377	+	to an accused person if necessary to ensure the person's appearance
	378	+	in court and the safety of the community and of any person,
383	379		including the victim of the alleged offense, is approved by the
384	380		voters. If that amendment is not approved by the voters, Section 2
385	381		of this Act has no effect.