By: Reynolds H.B. No. 52

A BILL TO BE ENTITLED

AN ACT

relating to bail proceedings and related duties of a magistrate in a criminal case.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Damon Allen Act.

SECTION 2. Article 1.07, Code of Criminal Procedure, is amended to read as follows:

Art. 1.07. RIGHT TO BAIL. (a) Except as provided by Subsection (b) or Chapter 17, any person [All prisoners] shall be eligible for bail, [bailable] unless the person is accused of a [for] capital offense for which [offenses when] the proof is evident. This provision shall not be [so] construed [as] to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.

(b) A person who is charged with a felony offense involving the use or exhibition of a deadly weapon or who is charged with an offense listed in Article 42A.054(a) other than a nonviolent drug offense under Chapter 481, Health and Safety Code, may be denied bail pending trial if a judge or magistrate determines by clear and convincing evidence that requiring bail and conditions of release is insufficient to reasonably ensure:

(1) the person's appearance in court as required; or

(2) the safety of the community or of any person, including the victim of the alleged offense.

SECTION 3. Chapter 17, Code of Criminal Procedure, is amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035, 17.036, and 17.037 to read as follows:

Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of the county courts, statutory county courts, and district courts trying criminal cases in each county shall adopt an instrument to be used in conducting a pretrial risk assessment of a defendant charged with an offense in that county. The instrument adopted must be the automated pretrial risk assessment system developed under Section 72.038, Government Code, or another instrument that is:

(1) objective, validated for its intended use, and standardized;

(2) based on an analysis of empirical data and risk factors relevant to:

(A) the risk of a defendant failing to appear in court as required; and

(B) the safety of the community or of any person, including the victim of the alleged offense, if the defendant is released;

(3) transparent and available for review by the public; and

(4) designed to reduce the likelihood of bail decisions being affected by bias based on sex, race, or other protected classifications.

(b) A magistrate considering the release on bail of a defendant charged with an offense punishable as a Class B misdemeanor or any higher category of offense shall order that:

(1) the personal bond office established under Article 17.42 for the county in which the defendant is being detained, or other suitably trained person, use the instrument adopted under Subsection (a) to conduct a pretrial risk assessment with respect to the defendant; and

(2) the results of the assessment be provided to the magistrate without unnecessary delay to ensure that the magistrate is able to make a bail decision under Article 17.028 within the period required by Subsection (a) of that article.

(c) A magistrate may not, without the consent of the sheriff, order a sheriff or sheriff's department personnel to conduct a pretrial risk assessment under Subsection (b).

(d) Notwithstanding Subsection (b), a magistrate may personally conduct a pretrial risk assessment using an instrument adopted under Subsection (a).

(e) The results of any pretrial risk assessment conducted under this article must be promptly provided to the defendant and the attorney representing the state.

(f) The magistrate must consider the results of the pretrial risk assessment before making a bail decision under Article 17.028.

Art. 17.028. BAIL DECISION. (a) Without unnecessary delay but not later than 48 hours after a defendant is arrested, a magistrate shall hold a proceeding open to the public and, after considering all circumstances and the results of the pretrial risk assessment conducted under Article 17.027, shall order that the defendant be:

(1) released on personal bond without conditions;

(2) released on personal bond or monetary bail bond with any condition the magistrate determines necessary to reasonably ensure the defendant's appearance in court as required and the safety of the community and of any person, including the victim of the alleged offense; or

(3) denied bail in accordance with this chapter and other law.

(b) In making a bail decision under this article, the magistrate shall impose, as applicable, the least restrictive conditions and minimum amount of bail, whether personal bond or monetary bail bond, necessary to reasonably ensure the defendant's appearance in court as required and the safety of the community and of any person, including the victim of the alleged offense.

(c) In each criminal case, there is a rebuttable presumption that personal bond, conditions of release, or both personal bond and conditions of release are sufficient to reasonably ensure the defendant's appearance in court as required and the safety of the community and of any person, including the victim of the alleged offense. For purposes of rebutting the presumption established by this subsection, the court may consider the results of the defendant's pretrial risk assessment and other information as applicable.

(d) A magistrate may not require a defendant to provide a monetary bail bond for the sole purpose of preventing the defendant's release on bail. A defendant who remains in custody for more than 48 hours after a magistrate enters an order requiring the defendant to provide a monetary bail bond is entitled to a bail review hearing under Article 17.034.

(e) A magistrate who denies a defendant's bail shall inform the defendant that the defendant is entitled to a bail review hearing under Article 17.034 and, as soon as practicable but not later than 24 hours after denying bail, issue a written order of denial that includes findings of fact and a statement of the magistrate's reasons for the denial.

(f) If the magistrate determines that a defendant is not indigent and is able to pay any costs related to a condition of the defendant's bail, the magistrate shall assess the costs as court costs or order the costs to be paid directly by the defendant as a condition of release.

(g) A judge may enter a standing order to release defendants charged with specified offenses on personal bond before a pretrial risk assessment has been conducted, but may not otherwise adopt a bail schedule or enter a standing order related to bail that:

(1) is inconsistent with this article; or

(2) authorizes a magistrate to make a bail decision for a defendant without considering the results of the defendant's pretrial risk assessment or the ability of the defendant to pay a monetary bail bond.

(h) This article does not prohibit a sheriff or other peace officer, or a jailer licensed under Chapter 1701, Occupations Code, from accepting bail under Article 17.20 or 17.22 before a pretrial risk assessment has been conducted with respect to the defendant or before a bail decision has been made by a magistrate under this article.

Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION. A defendant who appears before a magistrate as ordered by citation may not be temporarily detained for purposes of conducting a pretrial risk assessment or for a magistrate to issue a bail decision. The magistrate, after performing the duties imposed by Article 15.17, shall release the defendant on personal bond, unless the defendant is lawfully detained on another matter.

Art. 17.034. BAIL REVIEW HEARING REQUIRED. (a) As soon as practicable after a defendant's bail is denied under Article 17.028 or after the defendant becomes eligible for a bail review hearing under Article 17.028(d), but not later than the third day after the date the magistrate issues the written order denying or setting bail, as applicable, the court in which the defendant's case is pending shall conduct a hearing regarding whether to detain the defendant pending the trial of the offense.

(b) A defendant may voluntarily waive in writing the defendant's right to a bail review hearing. The court or the attorney representing the state may not direct or encourage the defendant to waive the defendant's right to a bail review hearing. A waiver under this subsection shall be filed with and become part of the record of the proceedings. A waiver obtained in violation of this subsection is presumed invalid. At any time, a defendant may withdraw a waiver under this subsection and request a bail review hearing, which must be held not later than the third day after the date of the withdrawal.

(c) A defendant is entitled to be represented by counsel at a bail review hearing, and an indigent defendant is entitled to have counsel appointed to represent the defendant for that purpose.

(d) The defendant may present any relevant information at the bail review hearing, including by testifying, presenting witnesses, and cross-examining witnesses presented by the attorney representing the state.

(e) The rules of evidence applicable to criminal trials do not apply to a bail review hearing. The defendant or the attorney representing the state may request a proffer of a witness's testimony before the witness is presented.

(f) A defendant may not use a bail review hearing to:

(1) seek discovery or conduct an examining trial; or

(2) harass a victim of or witness to the alleged offense.

(g) At any time during the period occurring after the bail review hearing concludes and before the trial of the offense commences, and regardless of whether the defendant was released or confined as a result of that hearing, the court may reopen the bail review hearing based on new information that the court determines is material to the bail decision made with respect to the defendant.

Art. 17.035. BAIL REVIEW HEARING: FINDING AND ORDER. (a) In a bail review hearing, the court shall consider:

(1) the nature and circumstances of the offense charged;

(2) the weight of the evidence against the defendant, including whether the evidence is likely to be admissible in the trial of the offense;

(3) the history and characteristics of the defendant, including:

(A) the defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in and other ties to the community, past conduct, criminal history including any prior offenses involving peace officers, history relating to drug or alcohol abuse, and history of attendance at court proceedings related to a charge for a Class B misdemeanor or any higher category of offense; and

(B) whether, at the time of the offense, the defendant was on community supervision, parole, or mandatory supervision or was otherwise released pending trial, sentencing, or appeal for any offense, including an offense under federal law or the law of another state;

(4) the nature and seriousness of the danger to the community or to any person, including the victim of the alleged offense as a result of the defendant's release on bail, if applicable;

(5) the nature and seriousness of the risk of obstruction to the criminal justice process as a result of the defendant's release on bail, if applicable;

(6) the results of the defendant's pretrial risk assessment; and

(7) any other relevant information.

(b) The judge shall reduce any applicable amount of monetary bail in accordance with the defendant's ability to pay and shall order the defendant to be released in accordance with Article 17.028 unless the judge finds by clear and convincing evidence that requiring bail and conditions of release is insufficient to reasonably ensure the defendant's appearance in court as required or the safety of the community or of any person, including the victim of the alleged offense. If the judge makes the finding described by this subsection, the judge shall:

(1) deny the defendant's bail; and

(2) issue a written order of denial that includes:

(A) findings of fact;

(B) a statement of the judge's reasons for the denial; and

(C) an explanation of how the denial was supported by the results of the defendant's pretrial risk assessment.

Art. 17.036. BAIL REVIEW HEARING: CONTINUANCE. Except for good cause shown, the court may not authorize a continuance for more than five days, excluding weekends and legal holidays.

Art. 17.037. BAIL REVIEW HEARING: APPEAL. A defendant is entitled to appeal a denial of bail. The defendant shall be detained in jail pending the appeal. The court of criminal appeals shall adopt rules accelerating the disposition by the appellate court and the court of criminal appeals of an appeal under this article.

SECTION 4. Section 4, Article 17.09, Code of Criminal Procedure, is amended to read as follows:

Sec. 4. Notwithstanding any other provision of this article, the judge or magistrate in whose court a criminal action is pending may not order the accused to be rearrested or require the accused to give another bond in a higher amount because the accused:

(1) withdraws a waiver of the right to counsel; [or]

(2) requests the assistance of counsel, appointed or retained; or

(3) is formally charged with the same offense for which the accused was initially arrested and bond was given.

SECTION 5. Article 17.15, Code of Criminal Procedure, is amended to read as follows:

Art. 17.15. RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a) The amount of bail to be required in any case is to be regulated by the court, judge, magistrate, or officer taking the bail and is [; they are to be] governed [in the exercise of this discretion] by the Constitution and [by] the following rules:

(1) [1.] The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

(2) [2.] The power to require bail is not to be so used as to make it an instrument of oppression.

(3) [3.] The nature of the offense, [and] the circumstances under which the offense [it] was committed, and the defendant's criminal history, including any prior offenses involving peace officers or family violence, are to be considered.

(4) [4.] The ability to make bail is to be considered [regarded], and proof shall [may] be taken upon this point before a bail decision is made under Article 17.028.

(5) [5.] The future safety of the community and of any person, including a victim of the alleged offense, [and the community] shall be considered.

(6) The results of a pretrial risk assessment shall be considered.

(b) In this article, "family violence" has the meaning assigned by Section 71.004, Family Code.

SECTION 6. Chapter 17, Code of Criminal Procedure, is amended by adding Article 17.251 to read as follows:

Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A magistrate authorizing a defendant's release on bail shall, if applicable, provide written notice to the defendant of:

(1) the conditions of the defendant's release; and

(2) the penalties of violating a condition of release, including the defendant's arrest.

(b) The notice under Subsection (a) must be provided in a manner that is sufficiently clear and specific to serve as a guide for the defendant's conduct while released.

SECTION 7. Section 4, Article 17.42, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) Except as otherwise provided by this subsection, if a court releases a defendant [an accused] on personal bond on the recommendation of a personal bond office, the court shall assess a personal bond reimbursement fee of $20 or three percent of the amount of the bail set [fixed] for the defendant [accused], whichever is greater. The court may waive the fee or assess a lesser fee if the court determines that the defendant is indigent or demonstrates an inability to pay the fee or if other good cause is shown. A court that requires a defendant to give a personal bond under Article 45.016 may not assess a personal bond reimbursement fee under this subsection. A court may require that a personal bond reimbursement fee assessed under this subsection be paid as court costs.

(a-1) Notwithstanding Subsection (a), the court or jailer may not refuse to release a defendant based solely on the defendant's failure to pay a personal bond reimbursement fee if the defendant is indigent or demonstrates an inability to pay the fee.

SECTION 8. Section 27.005(a), Government Code, is amended to read as follows:

(a) For purposes of removal under Chapter 87, Local Government Code, "incompetency" in the case of a justice of the peace includes the failure of the justice to successfully complete:

(1) within one year after the date the justice is first elected, an 80-hour course in the performance of the justice's duties, including not less than four hours of instruction regarding the justice's duties:

(A) under Article 15.17, Code of Criminal Procedure; and

(B) with respect to setting bail in criminal cases; and

(2) each following year, a 20-hour course in the performance of the justice's duties, including not less than:

(A) two hours of instruction regarding the justice's duties:

(i) under Article 15.17, Code of Criminal Procedure; and

(ii) with respect to setting bail in criminal cases; and

(B) 10 hours of instruction regarding substantive, procedural, and evidentiary law in civil matters.

SECTION 9. Subchapter C, Chapter 72, Government Code, is amended by adding Section 72.038 to read as follows:

Sec. 72.038. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM; PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article 17.027, Code of Criminal Procedure, the office shall develop an automated pretrial risk assessment system and make the system available to judges and other magistrates in this state at no cost to a county, municipality, or magistrate. The office shall also make available nonautomated pretrial risk assessment instruments to judges and other magistrates in this state at no cost to a county, municipality, or magistrate.

SECTION 10. The following provisions of the Code of Criminal Procedure are repealed:

(1) Article 17.03(g); and

(2) Sections 5(c) and 6(c), Article 17.42.

SECTION 11. (a) Section 27.005(a)(1), Government Code, as amended by this Act, applies only to a justice of the peace who is first elected or appointed on or after the effective date of this Act. A justice of the peace who is first elected or appointed before the effective date of this Act is governed by the law in effect on the date the justice was first elected or appointed, and the former law is continued in effect for that purpose.

(b) A justice of the peace serving on the effective date of this Act must complete the justice's initial two hours of instruction required by Section 27.005(a)(2)(A), Government Code, as added by this Act, not later than March 1, 2022.

SECTION 12. Not later than March 1, 2022, the Office of Court Administration of the Texas Judicial System shall develop the automated pretrial risk assessment system and make available automated or nonautomated pretrial risk assessment instruments as required by Section 72.038, Government Code, as added by this Act.

SECTION 13. Not later than March 1, 2022, the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county shall adopt a pretrial risk assessment instrument as required by Article 17.027, Code of Criminal Procedure, as added by this Act.

SECTION 14. The change in law made by this Act applies only to a person who is arrested on or after March 1, 2022. A person arrested before March 1, 2022, is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 15. (a) Except as provided by Subsection (b) of this section, this Act takes effect on the 91st day after the last day of the legislative session.

(b) Section 2 of this Act takes effect December 1, 2021, but only if the constitutional amendment proposed by the 87th Legislature, 1st Called Session, 2021, authorizing the denial of bail to an accused person if a judge or magistrate determines by clear and convincing evidence that requiring bail and conditions of release is insufficient to reasonably ensure the person's appearance in court or the safety of the community or of any person, including the victim of the alleged offense, is approved by the voters. If that amendment is not approved by the voters, Section 2 of this Act has no effect.