By: Murr, et al. H.B. No. 20

A BILL TO BE ENTITLED

AN ACT

relating to the release of defendants on bail.

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. Except as provided by this article or by Chapter 17, any person [All prisoners] shall be eligible for bail [bailable] unless denial of bail is expressly permitted by the Texas Constitution [for capital 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.

SECTION 3. Chapter 17, Code of Criminal Procedure, is amended by adding Articles 17.021, 17.022, 17.023, 17.024, and 17.028 to read as follows:

Art. 17.021. PUBLIC SAFETY REPORT SYSTEM. (a) The Office of Court Administration of the Texas Judicial System shall develop and maintain a validated public safety report system that is standardized for statewide use, that is available for use for purposes of Article 17.15, and that:

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

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

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

(B) the safety of the community, law enforcement, and the victim of the alleged offense if the defendant is released;

(3) does not consider factors that disproportionately affect persons who are members of racial or ethnic minority groups or who are socioeconomically disadvantaged;

(4) has been demonstrated to produce results that are unbiased with respect to the race or ethnicity of defendants and does not produce a disproportionate outcome; and

(5) is designed to function in a transparent manner with respect to the public and each defendant with respect to whom a public safety report is prepared.

(b) The office shall provide access to the public safety report system to the appropriate officials in each county at no cost. This subsection may not be construed to require the office to provide a county official or magistrate with any equipment or support related to accessing or using the public safety report system.

(c) The office shall collect data relating to the use and efficiency of the public safety report system. The office shall consider that data, along with other relevant information, and shall, not later than November 1 of each even-numbered year, make appropriate changes or updates to the public safety report system to ensure compliance with this article. Not later than December 1 of each even-numbered year, the office shall submit a report containing the data collected and describing any changes or updates made to the public safety report system to the governor, the lieutenant governor, the speaker of the house of representatives, and the presiding officers of the standing committees of each house of the legislature with jurisdiction over the judiciary.

(d) The office shall create and post on the office's public Internet website a sample result that could occur through the use of the public safety report system and shall include an explanation of the data used for preparing a public safety report.

Art. 17.022. PUBLIC SAFETY REPORT. (a) 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 validated public safety report system developed under Article 17.021 to prepare a public safety report, or another public safety report approved by the Office of Court Administration of the Texas Judicial System, with respect to the defendant; and

(2) the public safety report prepared under Subdivision (1) be provided to the magistrate as soon as practicable but not later than 48 hours after the defendant's arrest.

(b) A magistrate may not, without the consent of the sheriff, order a sheriff or sheriff's department personnel to prepare a public safety report under Subsection (a).

(c) Notwithstanding Subsection (a), a magistrate may personally prepare a public safety report before or while making a bail decision using the validated public safety report system developed under Article 17.021.

(d) The magistrate shall consider the public safety report before making a bail decision.

Art. 17.023. AUTHORITY TO RELEASE ON BAIL IN CERTAIN CASES. (a) This article applies only to a defendant charged with an offense that is:

(1) punishable as a felony; or

(2) a misdemeanor punishable by confinement.

(b) Notwithstanding any other law, a defendant to whom this article applies may be released on bail only by a magistrate who is:

(1) a resident of this state and one of the counties served by the magistrate; and

(2) in compliance with the training requirements of Article 17.024.

(c) A magistrate is not eligible to release on bail a defendant described by Subsection (a) if the magistrate:

(1) has been removed from office by impeachment, by the supreme court, by the governor on address to the legislature, by a tribunal reviewing a recommendation of the State Commission on Judicial Conduct, or by the legislature's abolition of the magistrate's court; or

(2) has resigned from office after having received notice that formal proceedings by the State Commission on Judicial Conduct have been instituted as provided by Section 33.022, Government Code, and before final disposition of the proceedings.

Art. 17.024. TRAINING ON DUTIES REGARDING BAIL. (a) The Office of Court Administration of the Texas Judicial System shall, in consultation with the court of criminal appeals, develop or approve training courses regarding a magistrate's duties, including duties under Article 17.022 and duties with respect to setting bail in criminal cases. The courses developed must include:

(1) a 16-hour initial training course; and

(2) a four-hour continuing education course.

(b) The office shall provide for a method of certifying that a magistrate has successfully completed a training course required under this article and has demonstrated competency of the course content in a manner acceptable to the office.

(c) A magistrate is in compliance with the training requirements of this article if:

(1) not later than the 90th day after the date the magistrate takes office, the magistrate successfully completes the course described by Subsection (a)(1);

(2) the magistrate successfully completes the course described by Subsection (a)(2) in each subsequent state fiscal biennium in which the magistrate serves; and

(3) the magistrate demonstrates competency in a manner acceptable to the office.

(c-1) Notwithstanding Subsection (c), a magistrate who is serving on December 1, 2021, is considered to be in compliance with Subsection (c)(1) if the magistrate successfully completes the training course not later than June 1, 2022. This subsection expires January 1, 2023.

(d) Any course developed or approved by the office under this article may be administered by the Texas Justice Court Training Center, the Texas Municipal Courts Education Center, the Texas Association of Counties, the Texas Center for the Judiciary, or a similar entity.

Art. 17.028. BAIL DECISION. (a) Without unnecessary delay but not later than 48 hours after a defendant is arrested, a magistrate shall order, after individualized consideration of all circumstances and of the factors required by Article 17.15, that the defendant be:

(1) granted personal bond with or without conditions;

(2) granted monetary bond with or without conditions; or

(3) denied bail in accordance with the Texas Constitution and other law.

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

(c) In each criminal case, unless specifically provided by other law, there is a rebuttable presumption that bail, conditions of release, or both bail and conditions of release are sufficient to reasonably ensure the defendant's appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense. For purposes of setting bail or rebutting the presumption, the court is not required to hold an evidentiary hearing.

(d) A judge may not 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 factors in Article 17.15.

(e) A defendant who is denied bail or who is unable to give bail in the amount required by any bail schedule or standing order related to bail shall be provided with the warnings described by Article 15.17.

(f) A defendant who is unable to give bail in an amount required by any bail schedule or standing order related to bail may file with the applicable magistrate a sworn affidavit declaring the maximum amount that the defendant would be able to pay or provide as security within 24 hours of arrest for purposes of obtaining a bail bond. The affidavit must set out sufficient facts to clearly establish that amount, given the totality of the defendant's circumstances.

(g) A defendant who files an affidavit under Subsection (f) is entitled to a hearing before the magistrate on the bail amount. At the hearing or a review, the magistrate shall consider the facts stated in the affidavit and the rules established by Article 17.15 and set the defendant's bail. The magistrate may deviate from any bail schedule or standing order related to bail in setting a defendant's bail under this subsection. The magistrate shall issue oral or written findings of fact supporting the decision.

(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 public safety report has been prepared with respect to the defendant or before a bail decision has been made by a magistrate under this article.

(i) In making a bail decision under this article, a magistrate may direct either of the following to monitor the defendant's compliance with a condition of bond set by the magistrate:

(1) the personal bond office established under Article 17.42 for the county in which the defendant is being detained; or

(2) the community supervision and corrections department established under Section 76.002, Government Code, for the county in which the defendant is being detained.

SECTION 4. Article 17.03, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsection (b-2) to read as follows:

(b) Only the court before whom the case is pending may release on personal bond a defendant who:

(1) is charged with an offense under the following sections of the Penal Code:

(A) [Section 19.03 (Capital Murder);

[(B)] Section 20.04 (Aggravated Kidnapping);

(B) [(C) Section 22.021 (Aggravated Sexual Assault);

[(D) Section 22.03 (Deadly Assault on Law Enforcement or Corrections Officer, Member or Employee of Board of Pardons and Paroles, or Court Participant);

[(E)] Section 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual);

(C) [(F)] Section 29.03 (Aggravated Robbery);

(D) [(G)] Section 30.02 (Burglary); or

(E) [(H)] Section 71.02 (Engaging in Organized Criminal Activity);

[(I) Section 21.02 (Continuous Sexual Abuse of Young Child or Children); or

[(J) Section 20A.03 (Continuous Trafficking of Persons);]

(2) is charged with a felony under Chapter 481, Health and Safety Code, or Section 485.033, Health and Safety Code, punishable by imprisonment for a minimum term or by a maximum fine that is more than a minimum term or maximum fine for a first degree felony; or

(3) does not submit to testing for the presence of a controlled substance in the defendant's body as requested by the court or magistrate under Subsection (c) of this article or submits to testing and the test shows evidence of the presence of a controlled substance in the defendant's body.

(b-2) Notwithstanding any other law, a defendant may not be released on personal bond if the defendant is charged with an offense under the following provisions of the Penal Code:

(1) Section 19.02 (Murder);

(2) Section 19.03 (Capital Murder);

(3) Section 20A.02 (Trafficking of Persons);

(4) Section 20A.03 (Continuous Trafficking of Persons);

(5) Section 21.02 (Continuous Sexual Abuse of Young Child or Children);

(6) Section 21.11 (Indecency with a Child);

(7) Section 22.021 (Aggravated Sexual Assault);

(8) Section 43.04 (Aggravated Promotion of Prostitution), if the defendant is not alleged to have engaged in conduct constituting an offense under Section 43.02(a);

(9) Section 43.05 (Compelling Prostitution); or

(10) Section 43.25 (Sexual Performance by a Child).

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 and the associated conditions of bail to be required in any case are [is] 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 [; they] are [to be] governed [in the exercise of this discretion] by the Constitution and [by] the following rules:

(1) [1.] The amount of bail, if any, and associated conditions of bail, if any, shall be sufficient [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 acts of family violence, shall [are to] be considered, except that a misdemeanor or an offense under Chapter 481, Health and Safety Code, that occurred more than 10 years before the current offense may not be considered unless the previous offense involved the manufacture or delivery of a controlled substance or caused bodily injury, as defined by Section 1.07, Penal Code, to another, or unless good cause otherwise exists for considering that offense.

(4) [4.] The ability to make bail shall [is to] be considered [regarded], and proof may be taken upon this point.

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

(6) Any public safety report prepared using the validated public safety report system developed under Article 17.021 shall be considered.

(7) Any other relevant facts or circumstances may 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 Articles 17.50, 17.51, and 17.52 to read as follows:

Art. 17.50. NOTICE OF CONDITIONS. (a) As soon as practicable but not later than the next business day after the date a magistrate issues an order imposing a condition of release on bond for a defendant or modifying or removing a condition previously imposed, the clerk of the court shall send a copy of the order to:

(1) the appropriate attorney representing the state; and

(2) either:

(A) the chief of police in the municipality where the defendant resides, if the defendant resides in a municipality; or

(B) the sheriff of the county where the defendant resides, if the defendant does not reside in a municipality.

(b) A clerk of the court may delay sending a copy of the order under Subsection (a) only if the clerk lacks information necessary to ensure service and enforcement.

(c) If an order described by Subsection (a) prohibits a defendant from going to or near a child care facility or school, the clerk of the court shall send a copy of the order to the child care facility or school.

(d) The copy of the order and any related information may be sent electronically or in another manner that can be accessed by the recipient.

(e) The magistrate or the magistrate's designee shall provide written notice to the defendant of:

(1) the conditions of release on bond; and

(2) the penalties for violating a condition of release.

(f) The magistrate shall make a separate record of the notice provided to the defendant under Subsection (e).

(g) The Office of Court Administration of the Texas Judicial System shall promulgate a form for use by a magistrate in providing notice to the defendant under Subsection (e). The form must include the relevant statutory language from the provisions of this chapter under which a condition of release on bond may be imposed on a defendant.

Art. 17.51. REPORTING OF CONDITIONS. A chief of police or sheriff who receives a copy of an order under Article 17.50(a), or the chief's or sheriff's designee, shall, as soon as practicable but not later than the 10th day after the date the copy is received, enter information relating to the condition of release into the appropriate database of the statewide law enforcement information system maintained by the Department of Public Safety or modify or remove information, as appropriate.

Art. 17.52. PROCEDURES AND FORMS RELATED TO CASH BAIL BOND. The Office of Court Administration of the Texas Judicial System shall develop statewide procedures and prescribe forms to be used by a court to facilitate:

(1) the refund of a cash bail bond, with an emphasis on refunding the bail bond to the person in whose name the receipt described by Article 17.02 was issued; and

(2) the application of a cash bail bond paid by a person other than a defendant to the defendant's outstanding court costs and fees.

SECTION 7. (a) Article 17.02, Code of Criminal Procedure, is amended to read as follows:

Art. 17.02. DEFINITION OF "BAIL BOND". A "bail bond" is a written undertaking entered into by the defendant and the defendant's sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation; provided, however, that the defendant on execution of the bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this article shall be receipted for by the officer receiving the funds and, on order of the court, be refunded in the amount shown on the face of the receipt less the administrative fee authorized by Section 117.055, Local Government Code, if applicable, after the defendant complies with the conditions of the defendant's bond, to:

(1) any person in the name of whom a receipt was issued, including the defendant if a receipt was issued to the defendant; or

(2) the defendant, if no other person is able to produce a receipt for the funds.

(b) Section 117.055, Local Government Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows:

(a) Except as provided by Subsection (a-1), to [To] compensate the county for the accounting and administrative expenses incurred in handling the registry funds that have not earned interest, including funds in a special or separate account, the clerk shall, at the time of withdrawal, deduct from the amount of the withdrawal a fee in an amount equal to five percent of the withdrawal but that may not exceed $50. Withdrawal of funds generated from a case arising under the Family Code is exempt from the fee deduction provided by this section.

(a-1) A clerk may not deduct a fee under Subsection (a) from a withdrawal of funds generated by the collection of a cash bond or cash bail bond if in the case for which the bond was taken:

(1) the defendant was found not guilty after a trial or appeal; or

(2) the complaint, information, or indictment was dismissed without a plea of guilty or nolo contendere being entered.

(a-2) On the request of a person to whom withdrawn funds generated by the collection of a cash bond or cash bail bond were disbursed, the clerk shall refund to the person the amount of the fee deducted under Subsection (a) if:

(1) subsequent to the deduction, a court makes or enters an order or ruling in the case for which the bond was taken; and

(2) had the court made or entered the order or ruling before the withdrawal of funds occurred, the deduction under Subsection (a) would have been prohibited under Subsection (a-1).

(c) Section 117.055, Local Government Code, as amended by this section, applies only to a withdrawal of funds from a court registry under Section 117.055, Local Government Code, made on or after September 1, 2021. A withdrawal of funds from a court registry made before September 1, 2021, is governed by the law in effect on the date the withdrawal was made, and the former law is continued in effect for that purpose.

(d) This section takes effect September 1, 2021.

SECTION 8. As soon as practicable but not later than December 1, 2021, the Office of Court Administration of the Texas Judicial System shall create and provide access to the appropriate officials in each county the validated public safety report system developed under Article 17.021, Code of Criminal Procedure, as added by this Act, and any related forms and materials, at no cost. If those items are made available before December 1, 2021, the office shall notify each court clerk, judge or other magistrate, and office of an attorney representing the state.

SECTION 9. (a) As soon as practicable but not later than December 1, 2021, the Office of Court Administration of the Texas Judicial System shall:

(1) promulgate the form required by Article 17.50(g), Code of Criminal Procedure, as added by this Act; and

(2) develop or approve and make available the training courses and certification method as described by Article 17.024, Code of Criminal Procedure, as added by this Act, and develop the procedures and prescribe the forms required by Article 17.52, Code of Criminal Procedure, as added by this Act.

(b) If the items described by Subsection (a) of this section are made available before December 1, 2021, the office shall notify each court clerk, judge or other magistrate, and office of an attorney representing the state.

SECTION 10. The changes in law made by this Act apply only to a person who is arrested on or after the effective date of this Act. A person arrested before the effective date of this Act 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.

SECTION 11. (a) Except as provided by Subsection (b) of this section, this Act takes effect December 1, 2021.

(b) Articles 17.021 and 17.024, Code of Criminal Procedure, as added by this Act, and Sections 8 and 9 of this Act take effect September 1, 2021.