88R3170 JRR-D
By: Cunningham H.B. No. 1728
A BILL TO BE ENTITLED
AN ACT
relating to the release on bail of certain defendants accused of
committing a felony offense and the criminal consequences of
committing a felony while released on bail for a prior felony;
creating a criminal offense; increasing the minimum term of
imprisonment for certain felonies; changing eligibility for
deferred adjudication community supervision, mandatory
supervision, and parole.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. MINIMUM BAIL FOR CERTAIN FELONY OFFENDERS
SECTION 1.01. Article 17.028(m), Code of Criminal
Procedure, is amended to read as follows:
(m) Notwithstanding Subsection (a), a magistrate may make a
bail decision regarding a defendant who is charged only with a
misdemeanor punishable by fine only or a defendant who receives a
citation under Article 14.06(c) without considering the factor
required by Article 17.15(a)(7) [17.15(a)(6)].
SECTION 1.02. Article 17.03(a), Code of Criminal Procedure,
is amended to read as follows:
(a) Except as otherwise provided by this article
[Subsection (b) or (b-1)], a magistrate may, in the magistrate's
discretion, release the defendant on personal bond without sureties
or other security.
SECTION 1.03. Article 17.15(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The amount of bail and any conditions of bail to be
required in any case in which the defendant has been arrested are 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 are
governed by the Constitution and the following rules:
1. Bail and any conditions of bail shall be sufficient
to give reasonable assurance that the undertaking will be complied
with.
2. The power to require bail is not to be used to make
bail an instrument of oppression.
3. The nature of the offense and the circumstances
under which the offense was committed are to be considered,
including whether the offense:
(A) is an offense involving violence, as defined
by Article 17.03; or
(B) involves violence directed against a peace
officer.
4. The minimum amount of bail for an offense involving
violence, as defined by Article 17.03, that is punishable as a
felony of the second degree or any higher category of offense is:
(A) $5 million if the offense is a capital
offense;
(B) $3 million if the offense is a felony of the
first degree; and
(C) $2 million if the offense is a felony of the
second degree.
5. The ability to make bail shall be considered, and
proof may be taken on this point.
6 [5]. The future safety of a victim of the alleged
offense, law enforcement, and the community shall be considered.
7 [6]. The criminal history record information for the
defendant, including information obtained through the statewide
telecommunications system maintained by the Department of Public
Safety and through the public safety report system developed under
Article 17.021, shall be considered, including any acts of family
violence, other pending criminal charges, and any instances in
which the defendant failed to appear in court following release on
bail.
8 [7]. The citizenship status of the defendant shall
be considered.
SECTION 1.04. Article 17.20(c), Code of Criminal Procedure,
is amended to read as follows:
(c) Notwithstanding Subsection (b), a sheriff, peace
officer, or jailer may make a bail decision regarding a defendant
who is charged only with a misdemeanor punishable by fine only or a
defendant who receives a citation under Article 14.06(c) without
considering the factor required by Article 17.15(a)(7)
[17.15(a)(6)].
SECTION 1.05. Chapter 17, Code of Criminal Procedure, as
amended by this article, applies only to a person who is arrested on
or after December 1, 2023. A person arrested before December 1,
2023, 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.
ARTICLE 2. IMPROPER SETTING OF BAIL; LIABILITY; OFFENSE
SECTION 2.01. Title 5, Civil Practice and Remedies Code, is
amended by adding Chapter 108A to read as follows:
CHAPTER 108A. PUBLIC SERVANT LIABILITY
Sec. 108A.001. LIABILITY OF JUDGE OR MAGISTRATE FOR
IMPROPER SETTING OF BAIL. (a) A victim of an offense that was
committed while the person was released on bail, or the victim's
estate if the victim is deceased, may bring a cause of action
against the judge or magistrate who released the person on bail for
damages incurred as a result of the offense if:
(1) the offense for which the person was released on
bail is an offense involving violence, as defined by Article 17.03,
Code of Criminal Procedure, that is punishable as a felony of the
second degree or any higher category of offense; and
(2) the amount of bail set by the judge or magistrate
was less than the minimum amount required under Article
17.15(a)(4), Code of Criminal Procedure, for the offense.
(b) The amount of damages awarded in an action brought under
this section may not exceed $10 million.
(c) A judge or magistrate may not assert judicial immunity
or other forms of immunity as a defense to an action brought under
this section.
(d) Section 108.002 does not apply to an action brought
under this section.
SECTION 2.02. Subchapter C, Chapter 33, Government Code, is
amended by adding Section 33.052 to read as follows:
Sec. 33.052. IMPROPER SETTING OF BAIL OR RELEASE OF CERTAIN
DEFENDANTS; OFFENSE; REMOVAL. (a) A judge or magistrate commits an
offense if the judge or magistrate:
(1) sets bail for an offense involving violence, as
defined by Article 17.03, Code of Criminal Procedure, that is
punishable as a felony of the second degree or any higher category
of offense and the amount of the bail set by the judge or magistrate
is less than the minimum amount required under Article 17.15(a)(4),
Code of Criminal Procedure, for the offense; or
(2) releases on bail a defendant who is charged with
committing a felony while released on bail for a prior felony in
violation of Section 11d, Article I, Texas Constitution.
(b) Except as provided by Subsection (c), an offense under
this section is a misdemeanor punishable by a fine not to exceed
$4,000.
(c) An offense under this section is a misdemeanor
punishable by a fine not to exceed $10,000 if it is shown on the
trial of the offense that the defendant has been previously
convicted of an offense under this section.
SECTION 2.03. Sections 81.078(c) and (d), Government Code,
are amended to read as follows:
(c) On proof of final conviction of any felony involving
moral turpitude, an offense punishable under Section 33.052(c), or
any misdemeanor involving theft, embezzlement, or fraudulent
misappropriation of money or other property, the district court of
the county of the residence of the convicted attorney shall enter an
order disbarring the attorney.
(d) In an action to disbar any attorney for acts made the
basis of a conviction for a felony involving moral turpitude, an
offense punishable under Section 33.052(c), or a misdemeanor
involving theft, embezzlement, or fraudulent misappropriation of
money or other property, the record of conviction is conclusive
evidence of the guilt of the attorney for the crime of which he was
convicted.
SECTION 2.04. Chapter 108A, Civil Practice and Remedies
Code, as added by this article, applies only to a cause of action
that accrues on or after December 1, 2023.
ARTICLE 3. INCREASED PENALTIES FOR FELONY COMMITTED WHILE RELEASED
ON BAIL
SECTION 3.01. Article 42.01, Code of Criminal Procedure, is
amended by adding Section 17 to read as follows:
Sec. 17. In addition to the information described by
Section 1, the judgment must reflect affirmative findings entered
pursuant to Article 42.0195.
SECTION 3.02. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.0195 to read as follows:
Art. 42.0195. FINDING REGARDING CERTAIN FELONY OFFENSES
COMMITTED WHILE ON BAIL. In the trial of an offense punishable as a
felony of the first, second, or third degree, on the motion of the
attorney representing the state the judge shall make an affirmative
finding of fact and enter the affirmative finding in the judgment in
the case if the judge determines that the offense was committed
while the defendant was released on bail for a prior felony for
which the defendant has been charged.
SECTION 3.03. Article 42A.102(b), Code of Criminal
Procedure, is amended to read as follows:
(b) In all other cases, the judge may grant deferred
adjudication community supervision unless:
(1) the defendant is charged with an offense:
(A) under Section 20A.02, 20A.03, 49.045, 49.05,
49.065, 49.07, or 49.08, Penal Code;
(B) under Section 49.04 or 49.06, Penal Code,
and, at the time of the offense:
(i) the defendant held a commercial
driver's license or a commercial learner's permit; or
(ii) the defendant's alcohol concentration,
as defined by Section 49.01, Penal Code, was 0.15 or more;
(C) for which punishment may be increased under
Section 49.09, Penal Code;
(D) for which punishment may be increased under
Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
is shown that the defendant has been previously convicted of an
offense for which punishment was increased under any one of those
subsections; [or]
(E) under Section 481.1123, Health and Safety
Code, that is punishable under Subsection (d), (e), or (f) of that
section; or
(F) punishable as a felony of the first, second,
or third degree, if it is shown that the defendant committed the
offense while the defendant was released on bail for a prior felony
for which the defendant has been charged;
(2) the defendant:
(A) is charged with an offense under Section
21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of
the age of the victim, or a felony described by Article 42A.453(b),
other than a felony described by Subdivision (1)(A) or (3)(B) of
this subsection; and
(B) has previously been placed on community
supervision for an offense under Paragraph (A);
(3) the defendant is charged with an offense under:
(A) Section 21.02, Penal Code; or
(B) Section 22.021, Penal Code, that is
punishable under Subsection (f) of that section or under Section
12.42(c)(3) or (4), Penal Code; or
(4) the defendant is charged with an offense under
Section 19.02, Penal Code, except that the judge may grant deferred
adjudication community supervision on determining that the
defendant did not cause the death of the deceased, did not intend to
kill the deceased or another, and did not anticipate that a human
life would be taken.
SECTION 3.04. Subchapter K, Chapter 42A, Code of Criminal
Procedure, is amended by adding Article 42A.518 to read as follows:
Art. 42A.518. COMMUNITY SUPERVISION FOR CERTAIN FELONY
OFFENSES COMMITTED WHILE ON BAIL. A court granting community
supervision to a defendant convicted of an offense for which the
court has made an affirmative finding under Article 42.0195 shall
require as a term of community supervision that the defendant serve
a term of imprisonment in the Texas Department of Criminal Justice
of not less than five years.
SECTION 3.05. Section 508.145, Government Code, is amended
by adding Subsection (e-1) to read as follows:
(e-1) Except as otherwise provided by this subsection, an
inmate serving a sentence for an offense for which the judgment
contains an affirmative finding under Article 42.0195, Code of
Criminal Procedure, is not eligible for release on parole until the
inmate's actual calendar time served, without consideration of good
conduct time, equals five calendar years, or until the date that the
inmate would otherwise be eligible for release on parole under
another provision of this section, whichever is later. This
subsection does not apply to an inmate who is ineligible for release
on parole pursuant to another provision of this section.
SECTION 3.06. Section 508.147, Government Code, is amended
by amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) Except as provided by Subsection (a-1) and Section
508.149, a parole panel shall order the release of an inmate who is
not on parole to mandatory supervision when the actual calendar
time the inmate has served plus any accrued good conduct time equals
the term to which the inmate was sentenced.
(a-1) An inmate serving a sentence for an offense for which
the judgment contains an affirmative finding under Article 42.0195,
Code of Criminal Procedure, may not be released to mandatory
supervision unless:
(1) the inmate's actual calendar time served, without
consideration of good conduct time, equals at least five years; and
(2) the inmate is otherwise eligible for release under
Subsection (a).
SECTION 3.07. Subchapter D, Chapter 12, Penal Code, is
amended by adding Section 12.502 to read as follows:
Sec. 12.502. PENALTY FOR CERTAIN FELONY OFFENSES COMMITTED
WHILE ON BAIL. If an affirmative finding is made under Article
42.0195, Code of Criminal Procedure, in the trial of an offense, the
minimum term of imprisonment for the offense is increased to five
years unless another provision of law applicable to the offense
provides for a minimum term of imprisonment of five years or more.
SECTION 3.08. Chapters 42 and 42A, Code of Criminal
Procedure, as amended by this article, Sections 508.145 and
508.147, Government Code, as amended by this article, and Section
12.502, Penal Code, as added by this article, apply only to an
offense committed on or after September 1, 2023. An offense
committed before September 1, 2023, is governed by the law in effect
on the date the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this section,
an offense was committed before September 1, 2023, if any element of
the offense occurred before that date.
ARTICLE 4. EFFECTIVE DATE
SECTION 4.01. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2023.
(b) Articles 1 and 2 of this Act take effect December 1,
2023, but only if the constitutional amendment proposed by the 88th
Legislature, Regular Session, 2023, authorizing the legislature to
set a minimum amount of monetary bond for persons charged with
certain felony offenses involving violence and requiring the denial
of bail to a person accused of committing a felony while released on
bail for a prior felony under most circumstances is approved by the
voters. If that amendment is not approved by the voters, Articles 1
and 2 of this Act have no effect.