Texas 2023 - 88th Regular

Texas House Bill HB1728 Compare Versions

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1	1	88R3170 JRR-D
2	2	By: Cunningham H.B. No. 1728
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the release on bail of certain defendants accused of
8	8	committing a felony offense and the criminal consequences of
9	9	committing a felony while released on bail for a prior felony;
10	10	creating a criminal offense; increasing the minimum term of
11	11	imprisonment for certain felonies; changing eligibility for
12	12	deferred adjudication community supervision, mandatory
13	13	supervision, and parole.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	ARTICLE 1. MINIMUM BAIL FOR CERTAIN FELONY OFFENDERS
16	16	SECTION 1.01. Article 17.028(m), Code of Criminal
17	17	Procedure, is amended to read as follows:
18	18	(m) Notwithstanding Subsection (a), a magistrate may make a
19	19	bail decision regarding a defendant who is charged only with a
20	20	misdemeanor punishable by fine only or a defendant who receives a
21	21	citation under Article 14.06(c) without considering the factor
22	22	required by Article 17.15(a)(7) [17.15(a)(6)].
23	23	SECTION 1.02. Article 17.03(a), Code of Criminal Procedure,
24	24	is amended to read as follows:
25	25	(a) Except as otherwise provided by this article
26	26	[Subsection (b) or (b-1)], a magistrate may, in the magistrate's
27	27	discretion, release the defendant on personal bond without sureties
28	28	or other security.
29	29	SECTION 1.03. Article 17.15(a), Code of Criminal Procedure,
30	30	is amended to read as follows:
31	31	(a) The amount of bail and any conditions of bail to be
32	32	required in any case in which the defendant has been arrested are to
33	33	be regulated by the court, judge, magistrate, or officer taking the
34	34	bail in accordance with Articles 17.20, 17.21, and 17.22 and are
35	35	governed by the Constitution and the following rules:
36	36	1. Bail and any conditions of bail shall be sufficient
37	37	to give reasonable assurance that the undertaking will be complied
38	38	with.
39	39	2. The power to require bail is not to be used to make
40	40	bail an instrument of oppression.
41	41	3. The nature of the offense and the circumstances
42	42	under which the offense was committed are to be considered,
43	43	including whether the offense:
44	44	(A) is an offense involving violence, as defined
45	45	by Article 17.03; or
46	46	(B) involves violence directed against a peace
47	47	officer.
48	48	4. The minimum amount of bail for an offense involving
49	49	violence, as defined by Article 17.03, that is punishable as a
50	50	felony of the second degree or any higher category of offense is:
51	51	(A) $5 million if the offense is a capital
52	52	offense;
53	53	(B) $3 million if the offense is a felony of the
54	54	first degree; and
55	55	(C) $2 million if the offense is a felony of the
56	56	second degree.
57	57	5. The ability to make bail shall be considered, and
58	58	proof may be taken on this point.
59	59	6 [5]. The future safety of a victim of the alleged
60	60	offense, law enforcement, and the community shall be considered.
61	61	7 [6]. The criminal history record information for the
62	62	defendant, including information obtained through the statewide
63	63	telecommunications system maintained by the Department of Public
64	64	Safety and through the public safety report system developed under
65	65	Article 17.021, shall be considered, including any acts of family
66	66	violence, other pending criminal charges, and any instances in
67	67	which the defendant failed to appear in court following release on
68	68	bail.
69	69	8 [7]. The citizenship status of the defendant shall
70	70	be considered.
71	71	SECTION 1.04. Article 17.20(c), Code of Criminal Procedure,
72	72	is amended to read as follows:
73	73	(c) Notwithstanding Subsection (b), a sheriff, peace
74	74	officer, or jailer may make a bail decision regarding a defendant
75	75	who is charged only with a misdemeanor punishable by fine only or a
76	76	defendant who receives a citation under Article 14.06(c) without
77	77	considering the factor required by Article 17.15(a)(7)
78	78	[17.15(a)(6)].
79	79	SECTION 1.05. Chapter 17, Code of Criminal Procedure, as
80	80	amended by this article, applies only to a person who is arrested on
81	81	or after December 1, 2023. A person arrested before December 1,
82	82	2023, is governed by the law in effect on the date the person was
83	83	arrested, and the former law is continued in effect for that
84	84	purpose.
85	85	ARTICLE 2. IMPROPER SETTING OF BAIL; LIABILITY; OFFENSE
86	86	SECTION 2.01. Title 5, Civil Practice and Remedies Code, is
87	87	amended by adding Chapter 108A to read as follows:
88	88	CHAPTER 108A. PUBLIC SERVANT LIABILITY
89	89	Sec. 108A.001. LIABILITY OF JUDGE OR MAGISTRATE FOR
90	90	IMPROPER SETTING OF BAIL. (a) A victim of an offense that was
91	91	committed while the person was released on bail, or the victim's
92	92	estate if the victim is deceased, may bring a cause of action
93	93	against the judge or magistrate who released the person on bail for
94	94	damages incurred as a result of the offense if:
95	95	(1) the offense for which the person was released on
96	96	bail is an offense involving violence, as defined by Article 17.03,
97	97	Code of Criminal Procedure, that is punishable as a felony of the
98	98	second degree or any higher category of offense; and
99	99	(2) the amount of bail set by the judge or magistrate
100	100	was less than the minimum amount required under Article
101	101	17.15(a)(4), Code of Criminal Procedure, for the offense.
102	102	(b) The amount of damages awarded in an action brought under
103	103	this section may not exceed $10 million.
104	104	(c) A judge or magistrate may not assert judicial immunity
105	105	or other forms of immunity as a defense to an action brought under
106	106	this section.
107	107	(d) Section 108.002 does not apply to an action brought
108	108	under this section.
109	109	SECTION 2.02. Subchapter C, Chapter 33, Government Code, is
110	110	amended by adding Section 33.052 to read as follows:
111	111	Sec. 33.052. IMPROPER SETTING OF BAIL OR RELEASE OF CERTAIN
112	112	DEFENDANTS; OFFENSE; REMOVAL. (a) A judge or magistrate commits an
113	113	offense if the judge or magistrate:
114	114	(1) sets bail for an offense involving violence, as
115	115	defined by Article 17.03, Code of Criminal Procedure, that is
116	116	punishable as a felony of the second degree or any higher category
117	117	of offense and the amount of the bail set by the judge or magistrate
118	118	is less than the minimum amount required under Article 17.15(a)(4),
119	119	Code of Criminal Procedure, for the offense; or
120	120	(2) releases on bail a defendant who is charged with
121	121	committing a felony while released on bail for a prior felony in
122	122	violation of Section 11d, Article I, Texas Constitution.
123	123	(b) Except as provided by Subsection (c), an offense under
124	124	this section is a misdemeanor punishable by a fine not to exceed
125	125	$4,000.
126	126	(c) An offense under this section is a misdemeanor
127	127	punishable by a fine not to exceed $10,000 if it is shown on the
128	128	trial of the offense that the defendant has been previously
129	129	convicted of an offense under this section.
130	130	SECTION 2.03. Sections 81.078(c) and (d), Government Code,
131	131	are amended to read as follows:
132	132	(c) On proof of final conviction of any felony involving
133	133	moral turpitude, an offense punishable under Section 33.052(c), or
134	134	any misdemeanor involving theft, embezzlement, or fraudulent
135	135	misappropriation of money or other property, the district court of
136	136	the county of the residence of the convicted attorney shall enter an
137	137	order disbarring the attorney.
138	138	(d) In an action to disbar any attorney for acts made the
139	139	basis of a conviction for a felony involving moral turpitude, an
140	140	offense punishable under Section 33.052(c), or a misdemeanor
141	141	involving theft, embezzlement, or fraudulent misappropriation of
142	142	money or other property, the record of conviction is conclusive
143	143	evidence of the guilt of the attorney for the crime of which he was
144	144	convicted.
145	145	SECTION 2.04. Chapter 108A, Civil Practice and Remedies
146	146	Code, as added by this article, applies only to a cause of action
147	147	that accrues on or after December 1, 2023.
148	148	ARTICLE 3. INCREASED PENALTIES FOR FELONY COMMITTED WHILE RELEASED
149	149	ON BAIL
150	150	SECTION 3.01. Article 42.01, Code of Criminal Procedure, is
151	151	amended by adding Section 17 to read as follows:
152	152	Sec. 17. In addition to the information described by
153	153	Section 1, the judgment must reflect affirmative findings entered
154	154	pursuant to Article 42.0195.
155	155	SECTION 3.02. Chapter 42, Code of Criminal Procedure, is
156	156	amended by adding Article 42.0195 to read as follows:
157	157	Art. 42.0195. FINDING REGARDING CERTAIN FELONY OFFENSES
158	158	COMMITTED WHILE ON BAIL. In the trial of an offense punishable as a
159	159	felony of the first, second, or third degree, on the motion of the
160	160	attorney representing the state the judge shall make an affirmative
161	161	finding of fact and enter the affirmative finding in the judgment in
162	162	the case if the judge determines that the offense was committed
163	163	while the defendant was released on bail for a prior felony for
164	164	which the defendant has been charged.
165	165	SECTION 3.03. Article 42A.102(b), Code of Criminal
166	166	Procedure, is amended to read as follows:
167	167	(b) In all other cases, the judge may grant deferred
168	168	adjudication community supervision unless:
169	169	(1) the defendant is charged with an offense:
170	170	(A) under Section 20A.02, 20A.03, 49.045, 49.05,
171	171	49.065, 49.07, or 49.08, Penal Code;
172	172	(B) under Section 49.04 or 49.06, Penal Code,
173	173	and, at the time of the offense:
174	174	(i) the defendant held a commercial
175	175	driver's license or a commercial learner's permit; or
176	176	(ii) the defendant's alcohol concentration,
177	177	as defined by Section 49.01, Penal Code, was 0.15 or more;
178	178	(C) for which punishment may be increased under
179	179	Section 49.09, Penal Code;
180	180	(D) for which punishment may be increased under
181	181	Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
182	182	is shown that the defendant has been previously convicted of an
183	183	offense for which punishment was increased under any one of those
184	184	subsections; [or]
185	185	(E) under Section 481.1123, Health and Safety
186	186	Code, that is punishable under Subsection (d), (e), or (f) of that
187	187	section; or
188	188	(F) punishable as a felony of the first, second,
189	189	or third degree, if it is shown that the defendant committed the
190	190	offense while the defendant was released on bail for a prior felony
191	191	for which the defendant has been charged;
192	192	(2) the defendant:
193	193	(A) is charged with an offense under Section
194	194	21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of
195	195	the age of the victim, or a felony described by Article 42A.453(b),
196	196	other than a felony described by Subdivision (1)(A) or (3)(B) of
197	197	this subsection; and
198	198	(B) has previously been placed on community
199	199	supervision for an offense under Paragraph (A);
200	200	(3) the defendant is charged with an offense under:
201	201	(A) Section 21.02, Penal Code; or
202	202	(B) Section 22.021, Penal Code, that is
203	203	punishable under Subsection (f) of that section or under Section
204	204	12.42(c)(3) or (4), Penal Code; or
205	205	(4) the defendant is charged with an offense under
206	206	Section 19.02, Penal Code, except that the judge may grant deferred
207	207	adjudication community supervision on determining that the
208	208	defendant did not cause the death of the deceased, did not intend to
209	209	kill the deceased or another, and did not anticipate that a human
210	210	life would be taken.
211	211	SECTION 3.04. Subchapter K, Chapter 42A, Code of Criminal
212	212	Procedure, is amended by adding Article 42A.518 to read as follows:
213	213	Art. 42A.518. COMMUNITY SUPERVISION FOR CERTAIN FELONY
214	214	OFFENSES COMMITTED WHILE ON BAIL. A court granting community
215	215	supervision to a defendant convicted of an offense for which the
216	216	court has made an affirmative finding under Article 42.0195 shall
217	217	require as a term of community supervision that the defendant serve
218	218	a term of imprisonment in the Texas Department of Criminal Justice
219	219	of not less than five years.
220	220	SECTION 3.05. Section 508.145, Government Code, is amended
221	221	by adding Subsection (e-1) to read as follows:
222	222	(e-1) Except as otherwise provided by this subsection, an
223	223	inmate serving a sentence for an offense for which the judgment
224	224	contains an affirmative finding under Article 42.0195, Code of
225	225	Criminal Procedure, is not eligible for release on parole until the
226	226	inmate's actual calendar time served, without consideration of good
227	227	conduct time, equals five calendar years, or until the date that the
228	228	inmate would otherwise be eligible for release on parole under
229	229	another provision of this section, whichever is later. This
230	230	subsection does not apply to an inmate who is ineligible for release
231	231	on parole pursuant to another provision of this section.
232	232	SECTION 3.06. Section 508.147, Government Code, is amended
233	233	by amending Subsection (a) and adding Subsection (a-1) to read as
234	234	follows:
235	235	(a) Except as provided by Subsection (a-1) and Section
236	236	508.149, a parole panel shall order the release of an inmate who is
237	237	not on parole to mandatory supervision when the actual calendar
238	238	time the inmate has served plus any accrued good conduct time equals
239	239	the term to which the inmate was sentenced.
240	240	(a-1) An inmate serving a sentence for an offense for which
241	241	the judgment contains an affirmative finding under Article 42.0195,
242	242	Code of Criminal Procedure, may not be released to mandatory
243	243	supervision unless:
244	244	(1) the inmate's actual calendar time served, without
245	245	consideration of good conduct time, equals at least five years; and
246	246	(2) the inmate is otherwise eligible for release under
247	247	Subsection (a).
248	248	SECTION 3.07. Subchapter D, Chapter 12, Penal Code, is
249	249	amended by adding Section 12.502 to read as follows:
250	250	Sec. 12.502. PENALTY FOR CERTAIN FELONY OFFENSES COMMITTED
251	251	WHILE ON BAIL. If an affirmative finding is made under Article
252	252	42.0195, Code of Criminal Procedure, in the trial of an offense, the
253	253	minimum term of imprisonment for the offense is increased to five
254	254	years unless another provision of law applicable to the offense
255	255	provides for a minimum term of imprisonment of five years or more.
256	256	SECTION 3.08. Chapters 42 and 42A, Code of Criminal
257	257	Procedure, as amended by this article, Sections 508.145 and
258	258	508.147, Government Code, as amended by this article, and Section
259	259	12.502, Penal Code, as added by this article, apply only to an
260	260	offense committed on or after September 1, 2023. An offense
261	261	committed before September 1, 2023, is governed by the law in effect
262	262	on the date the offense was committed, and the former law is
263	263	continued in effect for that purpose. For purposes of this section,
264	264	an offense was committed before September 1, 2023, if any element of
265	265	the offense occurred before that date.
266	266	ARTICLE 4. EFFECTIVE DATE
267	267	SECTION 4.01. (a) Except as provided by Subsection (b) of
268	268	this section, this Act takes effect September 1, 2023.
269	269	(b) Articles 1 and 2 of this Act take effect December 1,
270	270	2023, but only if the constitutional amendment proposed by the 88th
271	271	Legislature, Regular Session, 2023, authorizing the legislature to
272	272	set a minimum amount of monetary bond for persons charged with
273	273	certain felony offenses involving violence and requiring the denial
274	274	of bail to a person accused of committing a felony while released on
275	275	bail for a prior felony under most circumstances is approved by the
276	276	voters. If that amendment is not approved by the voters, Articles 1
277	277	and 2 of this Act have no effect.