Texas 2021 - 87th 3rd C.S.

Texas House Bill HB55 Compare Versions

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

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1	1	By: Reynolds H.B. No. 55
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to bail proceedings and related duties of a magistrate in a
7	7	criminal case.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. This Act may be cited as the Damon Allen Act.
10	10	SECTION 2. Article 1.07, Code of Criminal Procedure, is
11	11	amended to read as follows:
12	12	Art. 1.07. RIGHT TO BAIL. (a) Except as provided by
13	13	Subsection (b) or Chapter 17, any person [All prisoners] shall be
14	14	eligible for bail, [bailable] unless the person is accused of a
15	15	[for] capital offense for which [offenses when] the proof is
16	16	evident. This provision shall not be [so] construed [as] to prevent
17	17	bail after indictment found upon examination of the evidence, in
18	18	such manner as may be prescribed by law.
19	19	(b) A person who is charged with a felony offense involving
20	20	the use or exhibition of a deadly weapon or who is charged with an
21	21	offense listed in Article 42A.054(a) other than a nonviolent drug
22	22	offense under Chapter 481, Health and Safety Code, may be denied
23	23	bail pending trial if a judge or magistrate determines by clear and
24	24	convincing evidence that requiring bail and conditions of release
25	25	is insufficient to reasonably ensure:
26	26	(1) the person's appearance in court as required; or
27	27	(2) the safety of the community or of any person,
28	28	including the victim of the alleged offense.
29	29	SECTION 3. Chapter 17, Code of Criminal Procedure, is
30	30	amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035,
31	31	17.036, and 17.037 to read as follows:
32	32	Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of
33	33	the county courts, statutory county courts, and district courts
34	34	trying criminal cases in each county shall adopt an instrument to be
35	35	used in conducting a pretrial risk assessment of a defendant
36	36	charged with an offense in that county. The instrument adopted must
37	37	be the automated pretrial risk assessment system developed under
38	38	Section 72.038, Government Code, or another instrument that is:
39	39	(1) objective, validated for its intended use, and
40	40	standardized;
41	41	(2) based on an analysis of empirical data and risk
42	42	factors relevant to:
43	43	(A) the risk of a defendant failing to appear in
44	44	court as required; and
45	45	(B) the safety of the community or of any person,
46	46	including the victim of the alleged offense, if the defendant is
47	47	released;
48	48	(3) transparent and available for review by the
49	49	public; and
50	50	(4) designed to reduce the likelihood of bail
51	51	decisions being affected by bias based on sex, race, or other
52	52	protected classifications.
53	53	(b) A magistrate considering the release on bail of a
54	54	defendant charged with an offense punishable as a Class B
55	55	misdemeanor or any higher category of offense shall order that:
56	56	(1) the personal bond office established under Article
57	57	17.42 for the county in which the defendant is being detained, or
58	58	other suitably trained person, use the instrument adopted under
59	59	Subsection (a) to conduct a pretrial risk assessment with respect
60	60	to the defendant; and
61	61	(2) the results of the assessment be provided to the
62	62	magistrate without unnecessary delay to ensure that the magistrate
63	63	is able to make a bail decision under Article 17.028 within the
64	64	period required by Subsection (a) of that article.
65	65	(c) A magistrate may not, without the consent of the
66	66	sheriff, order a sheriff or sheriff's department personnel to
67	67	conduct a pretrial risk assessment under Subsection (b).
68	68	(d) Notwithstanding Subsection (b), a magistrate may
69	69	personally conduct a pretrial risk assessment using an instrument
70	70	adopted under Subsection (a).
71	71	(e) The results of any pretrial risk assessment conducted
72	72	under this article must be promptly provided to the defendant and
73	73	the attorney representing the state.
74	74	(f) The magistrate must consider the results of the pretrial
75	75	risk assessment before making a bail decision under Article 17.028.
76	76	Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
77	77	but not later than 48 hours after a defendant is arrested, a
78	78	magistrate shall hold a proceeding open to the public and, after
79	79	considering all circumstances and the results of the pretrial risk
80	80	assessment conducted under Article 17.027, shall order that the
81	81	defendant be:
82	82	(1) released on personal bond without conditions;
83	83	(2) released on personal bond or monetary bail bond
84	84	with any condition the magistrate determines necessary to
85	85	reasonably ensure the defendant's appearance in court as required
86	86	and the safety of the community and of any person, including the
87	87	victim of the alleged offense; or
88	88	(3) denied bail in accordance with this chapter and
89	89	other law.
90	90	(b) In making a bail decision under this article, the
91	91	magistrate shall impose, as applicable, the least restrictive
92	92	conditions and minimum amount of bail, whether personal bond or
93	93	monetary bail bond, necessary to reasonably ensure the defendant's
94	94	appearance in court as required and the safety of the community and
95	95	of any person, including the victim of the alleged offense.
96	96	(c) In each criminal case, there is a rebuttable presumption
97	97	that personal bond, conditions of release, or both personal bond
98	98	and conditions of release are sufficient to reasonably ensure the
99	99	defendant's appearance in court as required and the safety of the
100	100	community and of any person, including the victim of the alleged
101	101	offense. For purposes of rebutting the presumption established by
102	102	this subsection, the court may consider the results of the
103	103	defendant's pretrial risk assessment and other information as
104	104	applicable.
105	105	(d) A magistrate may not require a defendant to provide a
106	106	monetary bail bond for the sole purpose of preventing the
107	107	defendant's release on bail. A defendant who remains in custody for
108	108	more than 48 hours after a magistrate enters an order requiring the
109	109	defendant to provide a monetary bail bond is entitled to a bail
110	110	review hearing under Article 17.034.
111	111	(e) A magistrate who denies a defendant's bail shall inform
112	112	the defendant that the defendant is entitled to a bail review
113	113	hearing under Article 17.034 and, as soon as practicable but not
114	114	later than 24 hours after denying bail, issue a written order of
115	115	denial that includes findings of fact and a statement of the
116	116	magistrate's reasons for the denial.
117	117	(f) If the magistrate determines that a defendant is not
118	118	indigent and is able to pay any costs related to a condition of the
119	119	defendant's bail, the magistrate shall assess the costs as court
120	120	costs or order the costs to be paid directly by the defendant as a
121	121	condition of release.
122	122	(g) A judge may enter a standing order to release defendants
123	123	charged with specified offenses on personal bond before a pretrial
124	124	risk assessment has been conducted, but may not otherwise adopt a
125	125	bail schedule or enter a standing order related to bail that:
126	126	(1) is inconsistent with this article; or
127	127	(2) authorizes a magistrate to make a bail decision
128	128	for a defendant without considering the results of the defendant's
129	129	pretrial risk assessment or the ability of the defendant to pay a
130	130	monetary bail bond.
131	131	(h) This article does not prohibit a sheriff or other peace
132	132	officer, or a jailer licensed under Chapter 1701, Occupations Code,
133	133	from accepting bail under Article 17.20 or 17.22 before a pretrial
134	134	risk assessment has been conducted with respect to the defendant or
135	135	before a bail decision has been made by a magistrate under this
136	136	article.
137	137	Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION.
138	138	A defendant who appears before a magistrate as ordered by citation
139	139	may not be temporarily detained for purposes of conducting a
140	140	pretrial risk assessment or for a magistrate to issue a bail
141	141	decision. The magistrate, after performing the duties imposed by
142	142	Article 15.17, shall release the defendant on personal bond, unless
143	143	the defendant is lawfully detained on another matter.
144	144	Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as
145	145	practicable after a defendant's bail is denied under Article 17.028
146	146	or after the defendant becomes eligible for a bail review hearing
147	147	under Article 17.028(d), but not later than the third day after the
148	148	date the magistrate issues the written order denying or setting
149	149	bail, as applicable, the court in which the defendant's case is
150	150	pending shall conduct a hearing regarding whether to detain the
151	151	defendant pending the trial of the offense.
152	152	(b) A defendant may voluntarily waive in writing the
153	153	defendant's right to a bail review hearing. The court or the
154	154	attorney representing the state may not direct or encourage the
155	155	defendant to waive the defendant's right to a bail review hearing. A
156	156	waiver under this subsection shall be filed with and become part of
157	157	the record of the proceedings. A waiver obtained in violation of
158	158	this subsection is presumed invalid. At any time, a defendant may
159	159	withdraw a waiver under this subsection and request a bail review
160	160	hearing, which must be held not later than the third day after the
161	161	date of the withdrawal.
162	162	(c) A defendant is entitled to be represented by counsel at
163	163	a bail review hearing, and an indigent defendant is entitled to have
164	164	counsel appointed to represent the defendant for that purpose.
165	165	(d) The defendant may present any relevant information at
166	166	the bail review hearing, including by testifying, presenting
167	167	witnesses, and cross-examining witnesses presented by the attorney
168	168	representing the state.
169	169	(e) The rules of evidence applicable to criminal trials do
170	170	not apply to a bail review hearing. The defendant or the attorney
171	171	representing the state may request a proffer of a witness's
172	172	testimony before the witness is presented.
173	173	(f) A defendant may not use a bail review hearing to:
174	174	(1) seek discovery or conduct an examining trial; or
175	175	(2) harass a victim of or witness to the alleged
176	176	offense.
177	177	(g) At any time during the period occurring after the bail
178	178	review hearing concludes and before the trial of the offense
179	179	commences, and regardless of whether the defendant was released or
180	180	confined as a result of that hearing, the court may reopen the bail
181	181	review hearing based on new information that the court determines
182	182	is material to the bail decision made with respect to the defendant.
183	183	Art. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a)
184	184	In a bail review hearing, the court shall consider:
185	185	(1) the nature and circumstances of the offense
186	186	charged;
187	187	(2) the weight of the evidence against the defendant,
188	188	including whether the evidence is likely to be admissible in the
189	189	trial of the offense;
190	190	(3) the history and characteristics of the defendant,
191	191	including:
192	192	(A) the defendant's character, physical and
193	193	mental condition, family ties, employment, financial resources,
194	194	length of residence in and other ties to the community, past
195	195	conduct, criminal history including any prior offenses involving
196	196	peace officers, history relating to drug or alcohol abuse, and
197	197	history of attendance at court proceedings related to a charge for a
198	198	Class B misdemeanor or any higher category of offense; and
199	199	(B) whether, at the time of the offense, the
200	200	defendant was on community supervision, parole, or mandatory
201	201	supervision or was otherwise released pending trial, sentencing,
202	202	or appeal for any offense, including an offense under federal law or
203	203	the law of another state;
204	204	(4) the nature and seriousness of the danger to the
205	205	community or to any person, including the victim of the alleged
206	206	offense as a result of the defendant's release on bail, if
207	207	applicable;
208	208	(5) the nature and seriousness of the risk of
209	209	obstruction to the criminal justice process as a result of the
210	210	defendant's release on bail, if applicable;
211	211	(6) the results of the defendant's pretrial risk
212	212	assessment; and
213	213	(7) any other relevant information.
214	214	(b) The judge shall reduce any applicable amount of monetary
215	215	bail in accordance with the defendant's ability to pay and shall
216	216	order the defendant to be released in accordance with Article
217	217	17.028 unless the judge finds by clear and convincing evidence that
218	218	requiring bail and conditions of release is insufficient to
219	219	reasonably ensure the defendant's appearance in court as required
220	220	or the safety of the community or of any person, including the
221	221	victim of the alleged offense. If the judge makes the finding
222	222	described by this subsection, the judge shall:
223	223	(1) deny the defendant's bail; and
224	224	(2) issue a written order of denial that includes:
225	225	(A) findings of fact;
226	226	(B) a statement of the judge's reasons for the
227	227	denial; and
228	228	(C) an explanation of how the denial was
229	229	supported by the results of the defendant's pretrial risk
230	230	assessment.
231	231	Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for
232	232	good cause shown, the court may not authorize a continuance for more
233	233	than five days, excluding weekends and legal holidays.
234	234	Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is
235	235	entitled to appeal a denial of bail. The defendant shall be
236	236	detained in jail pending the appeal. The court of criminal appeals
237	237	shall adopt rules accelerating the disposition by the appellate
238	238	court and the court of criminal appeals of an appeal under this
239	239	article.
240	240	SECTION 4. Section 4, Article 17.09, Code of Criminal
241	241	Procedure, is amended to read as follows:
242	242	Sec. 4. Notwithstanding any other provision of this
243	243	article, the judge or magistrate in whose court a criminal action is
244	244	pending may not order the accused to be rearrested or require the
245	245	accused to give another bond in a higher amount because the accused:
246	246	(1) withdraws a waiver of the right to counsel; [or]
247	247	(2) requests the assistance of counsel, appointed or
248	248	retained; or
249	249	(3) is formally charged with the same offense for
250	250	which the accused was initially arrested and bond was given.
251	251	SECTION 5. Article 17.15, Code of Criminal Procedure, is
252	252	amended to read as follows:
253	253	Art. 17.15. RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a)
254	254	The amount of bail to be required in any case is to be regulated by
255	255	the court, judge, magistrate, or officer taking the bail and is [;
256	256	they are to be] governed [in the exercise of this discretion] by the
257	257	Constitution and [by] the following rules:
258	258	(1) [1.] The bail shall be sufficiently high to give
259	259	reasonable assurance that the undertaking will be complied with.
260	260	(2) [2.] The power to require bail is not to be so used
261	261	as to make it an instrument of oppression.
262	262	(3) [3.] The nature of the offense, [and] the
263	263	circumstances under which the offense [it] was committed, and the
264	264	defendant's criminal history, including any prior offenses
265	265	involving peace officers or family violence, are to be considered.
266	266	(4) [4.] The ability to make bail is to be considered
267	267	[regarded], and proof shall [may] be taken upon this point before a
268	268	bail decision is made under Article 17.028.
269	269	(5) [5.] The future safety of the community and of any
270	270	person, including a victim of the alleged offense, [and the
271	271	community] shall be considered.
272	272	(6) The results of a pretrial risk assessment shall be
273	273	considered.
274	274	(b) In this article, "family violence" has the meaning
275	275	assigned by Section 71.004, Family Code.
276	276	SECTION 6. Chapter 17, Code of Criminal Procedure, is
277	277	amended by adding Article 17.251 to read as follows:
278	278	Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A
279	279	magistrate authorizing a defendant's release on bail shall, if
280	280	applicable, provide written notice to the defendant of:
281	281	(1) the conditions of the defendant's release; and
282	282	(2) the penalties of violating a condition of release,
283	283	including the defendant's arrest.
284	284	(b) The notice under Subsection (a) must be provided in a
285	285	manner that is sufficiently clear and specific to serve as a guide
286	286	for the defendant's conduct while released.
287	287	SECTION 7. Section 4, Article 17.42, Code of Criminal
288	288	Procedure, is amended by amending Subsection (a) and adding
289	289	Subsection (a-1) to read as follows:
290	290	(a) Except as otherwise provided by this subsection, if a
291	291	court releases a defendant [an accused] on personal bond on the
292	292	recommendation of a personal bond office, the court shall assess a
293	293	personal bond reimbursement fee of $20 or three percent of the
294	294	amount of the bail set [fixed] for the defendant [accused],
295	295	whichever is greater. The court may waive the fee or assess a
296	296	lesser fee if the court determines that the defendant is indigent or
297	297	demonstrates an inability to pay the fee or if other good cause is
298	298	shown. A court that requires a defendant to give a personal bond
299	299	under Article 45.016 may not assess a personal bond reimbursement
300	300	fee under this subsection. A court may require that a personal bond
301	301	reimbursement fee assessed under this subsection be paid as court
302	302	costs.
303	303	(a-1) Notwithstanding Subsection (a), the court or jailer
304	304	may not refuse to release a defendant based solely on the
305	305	defendant's failure to pay a personal bond reimbursement fee if the
306	306	defendant is indigent or demonstrates an inability to pay the fee.
307	307	SECTION 8. Section 27.005(a), Government Code, is amended
308	308	to read as follows:
309	309	(a) For purposes of removal under Chapter 87, Local
310	310	Government Code, "incompetency" in the case of a justice of the
311	311	peace includes the failure of the justice to successfully complete:
312	312	(1) within one year after the date the justice is first
313	313	elected, an 80-hour course in the performance of the justice's
314	314	duties, including not less than four hours of instruction regarding
315	315	the justice's duties:
316	316	(A) under Article 15.17, Code of Criminal
317	317	Procedure; and
318	318	(B) with respect to setting bail in criminal
319	319	cases; and
320	320	(2) each following year, a 20-hour course in the
321	321	performance of the justice's duties, including not less than:
322	322	(A) two hours of instruction regarding the
323	323	justice's duties:
324	324	(i) under Article 15.17, Code of Criminal
325	325	Procedure; and
326	326	(ii) with respect to setting bail in
327	327	criminal cases; and
328	328	(B) 10 hours of instruction regarding
329	329	substantive, procedural, and evidentiary law in civil matters.
330	330	SECTION 9. Subchapter C, Chapter 72, Government Code, is
331	331	amended by adding Section 72.038 to read as follows:
332	332	Sec. 72.038. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
333	333	PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
334	334	17.027, Code of Criminal Procedure, the office shall develop an
335	335	automated pretrial risk assessment system and make the system
336	336	available to judges and other magistrates in this state at no cost
337	337	to a county, municipality, or magistrate. The office shall also
338	338	make available nonautomated pretrial risk assessment instruments
339	339	to judges and other magistrates in this state at no cost to a
340	340	county, municipality, or magistrate.
341	341	SECTION 10. The following provisions of the Code of
342	342	Criminal Procedure are repealed:
343	343	(1) Article 17.03(g); and
344	344	(2) Sections 5(c) and 6(c), Article 17.42.
345	345	SECTION 11. (a) Section 27.005(a)(1), Government Code, as
346	346	amended by this Act, applies only to a justice of the peace who is
347	347	first elected or appointed on or after the effective date of this
348	348	Act. A justice of the peace who is first elected or appointed
349	349	before the effective date of this Act is governed by the law in
350	350	effect on the date the justice was first elected or appointed, and
351	351	the former law is continued in effect for that purpose.
352	352	(b) A justice of the peace serving on the effective date of
353	353	this Act must complete the justice's initial two hours of
354	354	instruction required by Section 27.005(a)(2)(A), Government Code,
355	355	as added by this Act, not later than March 1, 2022.
356	356	SECTION 12. Not later than March 1, 2022, the Office of
357	357	Court Administration of the Texas Judicial System shall develop the
358	358	automated pretrial risk assessment system and make available
359	359	automated or nonautomated pretrial risk assessment instruments as
360	360	required by Section 72.038, Government Code, as added by this Act.
361	361	SECTION 13. Not later than March 1, 2022, the judges of the
362	362	county courts, statutory county courts, and district courts trying
363	363	criminal cases in each county shall adopt a pretrial risk
364	364	assessment instrument as required by Article 17.027, Code of
365	365	Criminal Procedure, as added by this Act.
366	366	SECTION 14. The change in law made by this Act applies only
367	367	to a person who is arrested on or after March 1, 2022. A person
368	368	arrested before March 1, 2022, is governed by the law in effect
369	369	immediately before the effective date of this Act, and the former
370	370	law is continued in effect for that purpose.
371	371	SECTION 15. (a) Except as provided by Subsection (b) of
372	372	this section, this Act takes effect on the 91st day after the last
373	373	day of the legislative session.
374	374	(b) Section 2 of this Act takes effect December 1, 2021, but
375	375	only if the constitutional amendment proposed by the 87th
376	376	Legislature, 1st Called Session, 2021, authorizing the denial of
377	377	bail to an accused person if a judge or magistrate determines by
378	378	clear and convincing evidence that requiring bail and conditions of
379	379	release is insufficient to reasonably ensure the person's
380	380	appearance in court or the safety of the community or of any person,
381	381	including the victim of the alleged offense, is approved by the
382	382	voters. If that amendment is not approved by the voters, Section 2
383	383	of this Act has no effect.