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

Substitute the following for H.B. No. 20:

By: Vasut C.S.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. (a) Except as provided by this article or by Chapter 17, any person [All prisoners] shall be eligible for bail [bailable] unless the person is accused of committing 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 accused of committing a violent or sexual offense, as defined by Section 11a, Article I, Texas Constitution, may be denied bail pending trial if a judge or magistrate determines 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, law enforcement, or the victim of the alleged offense.

(c) A person accused of committing an offense under Section 19.03, Penal Code, shall be denied bail pending trial unless a judge or magistrate determines by clear and convincing evidence that, based on the existence of extraordinary circumstances, the judge or magistrate is able to set bail and conditions of release sufficient to reasonably ensure:

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

(2) the safety of the community and of law enforcement.

(d) A person accused of committing a sexual offense, as defined by Section 11a, Article I, Texas Constitution, involving a victim younger than 17 years of age, shall be denied bail pending trial unless a judge or magistrate determines by clear and convincing evidence that, based on the existence of extraordinary circumstances, the judge or magistrate is able to set bail and conditions of release sufficient to reasonably ensure:

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

(2) the safety of the community, law enforcement, and the victim of the alleged offense.

(e) A judge or magistrate who denies bail under Subsection (c) or (d) must prepare a written order that includes findings of fact and a statement explaining the judge or magistrate's reason for the denial.

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. PRETRIAL PUBLIC SAFETY ASSESSMENT. (a) The Office of Court Administration of the Texas Judicial System shall develop and maintain a validated pretrial public safety assessment 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 risk factors relevant to:

(A) the risk 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 to whom the assessment is applied.

(b) The office shall provide access to the pretrial public safety assessment 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 pretrial public safety assessment.

(c) The office shall collect data relating to the use and efficiency of the pretrial public safety assessment. 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 pretrial public safety assessment 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 pretrial public safety assessment 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 pretrial public safety assessment and shall include an explanation of the data relied on by the assessment.

Art. 17.022. PRETRIAL PUBLIC SAFETY ASSESSMENT. (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 pretrial public safety assessment developed under Article 17.021 to conduct a pretrial public safety assessment with respect to the defendant; and

(2) the results of the assessment conducted under Subdivision (1) be provided to the magistrate within 48 hours of the defendant's arrest.

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

(c) Notwithstanding Subsection (a), a magistrate may personally conduct a pretrial public safety assessment using the validated pretrial public safety assessment developed under Article 17.021.

(d) The magistrate shall consider the results of the pretrial public safety assessment 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 develop or approve training courses regarding a magistrate's duties under Article 17.022 and duties with respect to setting bail in criminal cases. The courses developed must include:

(1) a four-hour training course for a magistrate who is licensed to practice law in this state;

(2) a 16-hour training course for a magistrate who is not licensed to practice law in this state; and

(3) a four-hour continuing education course for all magistrates.

(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) the magistrate is licensed to practice law in this state and:

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

(B) successfully completes the course described by Subsection (a)(3) in each subsequent state fiscal biennium in which the magistrate serves; and

(C) demonstrates competency in a manner acceptable to the office; or

(2) the magistrate is not licensed to practice law in this state and:

(A) not later than the 90th day after the date the magistrate takes office, the magistrate successfully completes the course described by Subsection (a)(2);

(B) successfully completes the course described by Subsection (a)(3) in each subsequent state fiscal biennium in which the magistrate serves; and

(C) 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)(A) or (c)(2)(A) if the magistrate successfully completes the applicable 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, the magistrate performing duties under Article 15.17 with respect to the defendant shall order, after considering all circumstances and the results of the pretrial public safety assessment conducted under Article 17.022, that the defendant be:

(1) released on personal bond with or without conditions;

(2) released on 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 and minimum amount of bail, 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 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 results of the defendant's pretrial public safety assessment.

(e) 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 public safety assessment has been conducted with respect to the defendant or before a bail decision has been made by a magistrate under this article.

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);

(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 to be required in any case 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 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 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) The results of any pretrial public safety assessment conducted using the validated pretrial public safety assessment 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 and 17.51 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).

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.

SECTION 7. 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 pretrial public safety assessment 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 8. As soon as practicable but not later than December 1, 2021, the Office of Court Administration of the Texas Judicial System shall develop or approve and make available the training courses and certification method required under Article 17.024, Code of Criminal Procedure, as added by this Act. 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. 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 10. (a) Except as provided by Subsections (b) and (c) 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 7 and 8 of this Act take effect September 1, 2021.

(c) Section 2 of this Act takes effect December 1, 2021, but only if the constitutional amendment proposed by the 87th Legislature, Regular Session, 2021, to authorize the denial of bail to an accused person if necessary to ensure the person's appearance in court and the safety of the community, law enforcement, and the victim of the alleged offense, and requiring the denial of bail to a person accused of capital murder or a sexual offense involving children absent extraordinary circumstances is approved by the voters. If that amendment is not approved by the voters, Section 2 of this Act has no effect.