88R14130 JCG-F
By: Reynolds H.B. No. 4379
A BILL TO BE ENTITLED
AN ACT
relating to citations and arrests for criminal offenses and
pretrial detention and release.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 17B to read as follows:
CHAPTER 17B. PRETRIAL RELEASE AND DETENTION ACT
SUBCHAPTER A. GENERAL PROVISIONS
Art. 17B.001. SHORT TITLE. This chapter may be cited as the
Texas Pretrial Release and Detention Act.
Art. 17B.002. DEFINITIONS. In this chapter:
(1) "Abscond" means to fail to appear in court as
required with the intent to avoid or delay adjudication.
(2) "Charge" means an allegation of an offense in a
complaint, information, indictment, citation, or similar record.
(3) "Citation" means a record issued by a peace
officer alleging an offense.
(4) "Covered offense" means:
(A) a violent offense or sexual offense as those
terms are defined by Section 11a(b), Article I, Texas Constitution;
or
(B) an offense under Section 20A.03, Penal Code
(Continuous Trafficking of Persons).
(5) "Detention hearing" means a hearing under Article
17B.151.
(6) "Homeless person" means a person who at any time in
the preceding six months had a primary address at:
(A) a shelter operated and supervised by a
governmental entity or a private charitable organization for the
purpose of providing temporary living accommodations, including
welfare hotels, congregate shelters, or transitional housing for
persons with behavioral or mental health disorders; or
(B) a public or private place not designed for or
regularly used as a regular sleeping accommodation for human
beings, including an automobile, a park, an abandoned building, a
bus or train station, or a similar setting.
(7) "Obstruct justice" means interfere with the
criminal process with the intent to influence or impede the
administration of justice. The term includes tampering with a
witness or evidence.
(8) "Offense" means conduct prohibited by law and
subject to a criminal penalty.
(9) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(10) "Release hearing" means a hearing under Article
17B.101.
(11) "Release on recognizance" means pretrial release
of an individual with no condition other than to appear in court as
required and to abide by generally applicable laws.
(12) "Secured appearance bond" means a person's
promise, secured by sufficient surety, deposit, lien, or proof of
access to collateral, to forfeit a specified sum if the individual
whose appearance is the subject of the bond absconds or does not
appear.
(13) "Undue hardship" means a burden that causes a
person or the person's dependents to sacrifice to some extent the
basic necessities of life, including food, medical care, clothing,
shelter, transportation, or hygiene products.
(14) "Unsecured appearance bond" means a person's
promise other than through secured appearance bond to forfeit a
specified sum if the individual whose appearance is the subject of
the bond absconds or does not appear.
Art. 17B.003. SCOPE. This chapter governs a determination
to arrest, release, or detain an individual before trial. This
chapter does not affect the law of this state other than this
chapter regarding related matters, including:
(1) forfeiture, release, or collection of a secured
appearance bond or an unsecured appearance bond;
(2) involuntary commitment;
(3) a right of a crime victim, including a right of
notification;
(4) appellate review; or
(5) release pending appeal.
Art. 17B.004. CONFLICT OF LAWS. To the extent of any
conflict between this chapter and another law, this chapter
prevails.
SUBCHAPTER B. CITATION AND ARREST
Art. 17B.051. AUTHORITY FOR CITATION OR ARREST. (a) If a
peace officer has probable cause to believe an individual is
committing or has committed an offense, the peace officer may issue
the individual a citation or take other action authorized by law.
(b) Except as otherwise provided by law of this state other
than this chapter, a peace officer, including a person acting at the
direction of the peace officer, may arrest an individual only if:
(1) the individual is subject to an order of detention
from any jurisdiction, including an arrest warrant or order of
revocation of community supervision, parole, mandatory
supervision, or release; or
(2) subject to Subsection (c), the peace officer has
probable cause to believe the individual is committing or has
committed an offense.
(c) If an offense under Subsection (b)(2) is a misdemeanor,
a peace officer, including a person acting at the direction of a
peace officer, may not arrest an individual unless:
(1) after the person has used all reasonably available
means to confirm the identification of the individual, the
individual fails to provide adequate identification, orally or
through documentation, as lawfully requested by the person; or
(2) the peace officer reasonably believes arrest is
necessary to:
(A) protect a reasonably identifiable individual
from significant imminent harm; or
(B) prevent the individual from fleeing the
jurisdiction.
(d) For each arrest a peace officer makes under this
article, the peace officer shall report to the law enforcement
agency that employs the officer the reason the officer did not issue
a citation in lieu of arrest under Subsection (a).
Art. 17B.052. FORM OF CITATION. A citation must state:
(1) the circumstances of the alleged offense and the
provision of law violated;
(2) if a court appearance is required:
(A) the time and place the individual must appear
before a magistrate; and
(B) the process for requesting a change in the
appearance date; and
(3) the possible consequences of failing to appear as
required by the citation or committing an offense before the
individual's first court appearance.
Art. 17B.0525. DUTIES AFTER CITATION. After issuing a
citation under Article 17B.051 to an individual, a peace officer
shall offer the following services to the individual:
(1) phone calls and text messages to the individual
for the purpose of reminding the individual of the date the
individual is required to appear in court;
(2) information on how the individual may:
(A) contact the court for further information;
(B) report to the court a change in
circumstances, including difficulties in attending a scheduled
court appearance; or
(C) reschedule the date and time the individual
is required to appear in court; and
(3) if available in the jurisdiction, transportation
to the court for the scheduled appearance, transitional housing as
needed, and child care for the purpose of assisting the individual
in attending the scheduled court appearance.
Art. 17B.053. RELEASE AFTER ARREST. A peace officer may
release an individual after arrest and without a release hearing by
issuing a citation under Article 17B.051(a). The peace officer may
require the individual to execute an unsecured appearance bond as a
condition of release.
Art. 17B.054. APPEARANCE ON CITATION. (a) If an individual
appears as required by a citation, the court shall issue an order of
pretrial release on recognizance in the case for which the citation
was issued. The order must include the information under Article
17B.104(a).
(b) If an individual absconds or does not appear as required
by a citation, the court may issue an arrest warrant.
SUBCHAPTER C. RELEASE HEARING
Art. 17B.101. RIGHT TO HEARING; TIMING. (a) Unless an
arrested individual is released under Article 17B.053 after arrest,
the individual is entitled to a hearing to determine release
pending trial. Except as otherwise provided in Subsection (b), the
court shall hold the hearing not later than 24 hours after the
arrest.
(b) The court may continue a release hearing:
(1) on motion of the arrested individual; or
(2) in extraordinary circumstances, to a time that is
not later than 48 hours after arrest, on its own motion.
Art. 17B.102. RIGHTS OF ARRESTED INDIVIDUAL. (a) An
arrested individual has a right to be heard at a release hearing.
(b) An arrested individual has a right to counsel at a
release hearing. If the individual is unable to obtain counsel for
the hearing, the court shall appoint counsel. The scope of
representation under this article may be limited to the subject
matter of the hearing.
Art. 17B.103. JUDICIAL DETERMINATION OF RELEVANT RISK. At
a release hearing, the court shall determine whether the arrested
individual poses a risk that is relevant to pretrial release. The
individual poses a relevant risk only if the court determines by
clear and convincing evidence that the individual is significantly
likely to abscond, obstruct justice, violate a protective order, or
cause significant harm to a reasonably identifiable individual. The
court shall consider:
(1) available information concerning:
(A) the nature, seriousness, and circumstances
of the alleged offense;
(B) the weight of the evidence against the
individual;
(C) the individual's adult criminal history,
history of absconding, and community ties;
(D) whether the individual has a pending charge
in another matter or is on community supervision, parole, or
mandatory supervision; and
(E) only as factors supporting release, the
defendant's:
(i) place of residence and the period for
which the defendant has resided there;
(ii) community ties; and
(iii) employment and education
commitments;
(2) any relevant information in a pretrial risk
assessment; and
(3) other relevant information that weighs in favor of
release, including information provided by the individual or the
attorney representing the state.
Art. 17B.104. PRETRIAL RELEASE. (a) Except as otherwise
provided in Subsection (b) and Article 17B.108, at a release
hearing the court shall issue an order of pretrial release on
recognizance. The order must state:
(1) the time and place the individual must appear
before a magistrate; and
(2) the possible consequences of failing to appear as
required by the order of committing an offense while the charge is
pending.
(b) If the court determines under Article 17B.103 that an
arrested individual poses a relevant risk, the court shall
determine under Articles 17B.105, 17B.106, and 17B.107 whether
pretrial release of the individual is appropriate.
(c) If the court determines under Articles 17B.105,
17B.106, and 17B.107 that pretrial release is appropriate, the
court shall issue an order of pretrial release. The order must
include the information required under Subsection (a) and any
restrictive condition imposed by the court.
Art. 17B.105. PRACTICAL ASSISTANCE; VOLUNTARY SUPPORTIVE
SERVICES. (a) If the court determines under Article 17B.103 that an
arrested individual poses a relevant risk, the court shall
determine whether practical assistance or a voluntary supportive
service, or both, are available and sufficient to address
satisfactorily the risk.
(b) If the court determines the practical assistance or a
voluntary supportive service is available and sufficient to address
satisfactorily a relevant risk the court identifies under Article
17B.103, the court shall refer the individual to the practical
assistance or voluntary supportive service and issue an order of
pretrial release under Article 17B.104(c).
(c) For purposes of this article, "voluntary supportive
service" includes transportation assistance, child care
assistance, and referrals to community-based mental health
services.
Art. 17B.106. RESTRICTIVE CONDITION OF RELEASE. (a) If the
court determines under Article 17B.105 that practical assistance or
a voluntary supportive service is not sufficient to address
satisfactorily a relevant risk the court identifies under Article
17B.103, the court shall impose the least restrictive condition or
conditions reasonably necessary to address satisfactorily the risk
and issue an order of pretrial release under Article 17B.104(c).
(b) A restrictive condition under Subsection (a) may
include:
(1) mandatory therapeutic treatment or social
services;
(2) a requirement to seek to obtain or maintain
employment or maintain an education commitment;
(3) a restriction on possession or use of a weapon;
(4) a restriction on travel;
(5) a restriction on contact with a specified person;
(6) a restriction on a specified activity;
(7) supervision by a community supervision and
corrections department or an individual;
(8) active or passive electronic monitoring;
(9) house arrest;
(10) subject to Article 17B.107, a secured appearance
bond or unsecured appearance bond;
(11) a condition proposed by the arrested individual,
the attorney representing the state, or an alleged victim;
(12) any other nonfinancial condition required by law
of this state other than this chapter; or
(13) another condition to address satisfactorily the
relevant risk the court identifies under Article 17B.103.
(c) The court shall state in a record the reasons the
restrictive condition or conditions imposed under Subsection (a)
are the least restrictive reasonably necessary to address
satisfactorily the relevant risk the court identifies under Article
17B.103.
Art. 17B.107. FINANCIAL CONDITION OF RELEASE. (a) Subject
to Articles 17B.108 and 17B.153, the court may not impose a
restrictive condition under Article 17B.106 that requires initial
payment of a fee in a sum greater than the arrested individual is
able to pay without causing undue hardship from personal financial
resources not later than 24 hours after the condition is imposed. If
the individual is unable to pay the initial fee, the court shall
waive or modify the fee, or waive or modify the restrictive
condition that requires payment of the fee, to the extent necessary
to release the individual. If the individual is unable to pay a
recurring fee, the court shall waive or modify the recurring fee or
the restrictive condition that requires payment of the fee.
(b) Before imposing a secured appearance bond or unsecured
appearance bond under Article 17B.106, the court shall consider the
arrested individual's personal financial resources and
obligations, including income, assets, expenses, liabilities, and
dependents.
(c) Subject to Articles 17B.108 and 17B.153, the court may
not impose a secured appearance bond as a restrictive condition
under Article 17B.106 unless the court determines by clear and
convincing evidence that the arrested individual is significantly
likely to abscond, obstruct justice, or violate a protective order.
(d) Subject to Articles 17B.108 and 17B.153, the court may
not impose a secured appearance bond as a restrictive condition
under Article 17B.106:
(1) to keep an arrested individual detained;
(2) for a charge that is not a felony, unless the
individual has been previously convicted of an offense under
Section 38.10, Penal Code, within the preceding five years; or
(3) the cost of which is an amount greater than the
individual is able to pay without causing undue hardship from
personal financial resources not later than 24 hours after the
condition is imposed.
(e) The court shall presume that a restrictive condition
requiring the payment of a fee or imposing a secured appearance bond
causes undue hardship under Subsection (a) or (d) on the arrested
individual if the individual:
(1) is eligible for the appointment of counsel in a
criminal proceeding under Article 26.04 or other law;
(2) is, or has been at any time within the preceding
six months, a homeless person;
(3) regularly earns income at or below 200% of the
federal poverty level;
(4) is a full-time student enrolled at a college or an
institution of higher education;
(5) has been at any time in the preceding six months
confined in a correctional facility, as defined by Section 1.07,
Penal Code;
(6) has resided at any time in the preceding six months
in a facility primarily engaged in providing mental health
services; or
(7) qualifies for or has dependents who qualify for
any state or federal assistance program, including:
(A) the medical assistance program operated
under Chapter 32, Human Resources Code;
(B) the supplemental nutrition assistance
program (SNAP) operated under Chapter 33, Human Resources Code;
(C) the Temporary Assistance for Needy Families
(TANF) program;
(D) Supplemental Security Income (SSI) benefits
under 42 U.S.C. Section 1381 et seq.;
(E) Social Security Disability Insurance (SSDI)
benefits under 42 U.S.C. Section 401 et seq.; or
(F) housing assistance payments under any
federal law described by Section 2306.6702(5)(A)(i), Government
Code.
(f) A restrictive condition imposed under Article 17B.106
that requires the payment of a fee or imposes a secured appearance
bond may never be in an amount that exceeds two percent of the
arrested individual's annual income.
Art. 17B.108. TEMPORARY PRETRIAL DETENTION. (a) At the
conclusion of a release hearing, the court may issue an order to
detain the arrested individual temporarily until a detention
hearing, or may impose a financial condition of release in an amount
greater than the individual is able to pay from personal financial
resources not later than 24 hours after the condition is imposed,
only if the individual is charged with a covered offense and the
court determines by clear and convincing evidence that:
(1) it is likely that the individual will abscond,
obstruct justice, violate a protective order, or cause significant
harm to a reasonably identifiable individual and that no less
restrictive condition is sufficient to address satisfactorily the
relevant risk the court identifies under Article 17B.103; or
(2) the individual has violated a condition of an
order of pretrial release for a pending criminal charge.
(b) If the court issues an order under Subsection (a) to
detain the arrested individual temporarily or that imposes a
financial condition of release in an amount greater than the
individual is able to pay from personal financial resources not
later than 24 hours after the condition is imposed, the court shall
state its reasons in a record, including why no less restrictive
condition or combination of conditions is sufficient.
SUBCHAPTER D. DETENTION HEARING
Art. 17B.151. DUTY TO HOLD HEARING; TIMING. (a) If the court
issues an order of temporary pretrial detention of an arrested
individual under Article 17B.108, or pretrial release of an
arrested individual under Article 17B.104 subject to a restrictive
condition that results in continued detention of the individual,
the court shall hold a hearing to consider continued detention of
the individual pending trial. The hearing must be held not later
than 48 hours after issuance of the order.
(b) The court on its own motion may continue a detention
hearing for good cause for not more than 48 hours.
(c) The court shall continue a detention hearing on motion
of the detained individual for not more than 48 hours.
(d) At the conclusion of a detention hearing, the court
shall issue an order of pretrial release or detention.
Art. 17B.152. RIGHTS OF DETAINED INDIVIDUAL. (a) At a
detention hearing, the detained individual has a right to counsel.
If the individual is indigent, the court shall appoint counsel. The
scope of representation under this article may be limited to the
subject matter of the hearing.
(b) At a detention hearing, the detained individual has a
right to:
(1) review evidence to be introduced by the attorney
representing the state before it is introduced at the hearing;
(2) present evidence, call witnesses, and provide
information;
(3) testify; and
(4) cross-examine witnesses.
Art. 17B.153. PRETRIAL DETENTION. (a) At a detention
hearing, the court shall consider the criteria in Articles 17B.103,
17B.104, 17B.105, 17B.106, and 17B.107 to determine whether to
issue an order of pretrial detention or continue, amend, or
eliminate a restrictive condition that has resulted in continued
detention of the detained individual. If failure to satisfy a
secured appearance bond or pay a fee is the only reason the
individual continues to be detained, the fact of detention is prima
facie evidence that the individual is unable to satisfy the bond or
pay the fee.
(b) The court at a detention hearing may issue an order of
pretrial detention or continue a restrictive condition of release
that results in detention only if the detained individual is
charged with a covered offense and the court determines by clear and
convincing evidence that it is likely that the individual will
abscond, obstruct justice, violate a protective order, or cause
significant harm to a reasonably identifiable individual and no
less restrictive condition is sufficient to address satisfactorily
the relevant risk the court identifies under Article 17B.103.
(c) If under Subsection (b) the court issues an order of
pretrial detention or continues a restrictive condition of release
that results in detention, the court shall state its reasons in a
record, including why no less restrictive condition or combination
of conditions is sufficient.
SUBCHAPTER E. MODIFYING OR VACATING ORDER
Art. 17B.201. MODIFYING OR VACATING BY AGREEMENT. By
agreement of the attorney representing the state and an individual
subject to an order under Subchapter C or D, the court may:
(1) modify an order of pretrial release;
(2) vacate an order of pretrial detention and issue an
order of pretrial release; or
(3) issue an order of pretrial detention.
Art. 17B.202. MOTION TO MODIFY. On its own or on motion of a
party, the court may modify an order of pretrial release or
detention using the procedures and standards in Subchapters C and
D. The court may consider new information relevant to the order,
including information that the individual subject to the order has
violated a condition of release or has demonstrated a history of
compliance with the conditions of release.
SECTION 2. This Act applies to an arrest made, a citation
issued, or a release or detention hearing held on or after the
effective date of this Act, including a hearing to enforce, modify,
or vacate a release or detention order issued before the effective
date of this Act.
SECTION 3. This Act takes effect September 1, 2023.