By: Gallego, Pete H.B. No. 1964
73R5044 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the detention and release of a person charged with
1-3 family violence, the imposition of conditions on that release, and
1-4 penalties for failure to comply with conditions of release.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 17, Code of Criminal Procedure, is
1-7 amended by adding Article 17.46 to read as follows:
1-8 Art. 17.46. CONDITIONAL RELEASE WHEN CHARGED WITH FAMILY
1-9 VIOLENCE
1-10 Sec. 1. DEFINITIONS. In this article "family," "family
1-11 violence," and "household" have the meanings assigned those terms
1-12 by Section 71.01, Family Code.
1-13 Sec. 2. IMPOSITION OF CONDITIONS. (a) This article applies
1-14 to the release of a defendant charged with an offense involving
1-15 family violence:
1-16 (1) before and during trial, including pending the
1-17 sentencing of the defendant;
1-18 (2) pending the determination of a motion for a new
1-19 trial;
1-20 (3) pending appeal of a conviction; and
1-21 (4) pending appeal by writ of habeas corpus under
1-22 Article 44.35 of this code.
1-23 (b) The release of every person under this article is
1-24 subject to the condition that the defendant not commit an offense
2-1 under federal, state, or local law during the period of the
2-2 defendant's release.
2-3 (c) A court entitled to release a defendant may impose one
2-4 or more of the conditions provided by Subsection (d) of this
2-5 section on the defendant as a condition of release on personal
2-6 bond. The court shall impose the least restrictive condition or
2-7 combination of conditions that, together with the bond to be given,
2-8 will reasonably assure the appearance of the defendant as required
2-9 and the safety of any other person or the community.
2-10 (d) The additional conditions that may be imposed on the
2-11 release of the defendant are that the defendant:
2-12 (1) remain in the custody of a designated person who
2-13 agrees to supervise the defendant and to report any violation of a
2-14 release condition to the court, if the designated person is
2-15 reasonably able to assure the judicial officer that the accused
2-16 will appear as required and will not pose a danger to the safety of
2-17 any other person or the community;
2-18 (2) abide by specified restrictions on the defendant's
2-19 personal associations, place of abode, or travel;
2-20 (3) not directly communicate with the alleged victim
2-21 of the offense or go near a residence, school, or other location,
2-22 as specifically described in the release order, frequented by the
2-23 alleged victim;
2-24 (4) avoid all contact with a potential witness who may
2-25 testify concerning the offense;
2-26 (5) report on a regular basis to a designated law
2-27 enforcement agency, pretrial services agency, or other agency;
3-1 (6) comply with a specified curfew;
3-2 (7) submit to an electronic monitoring program;
3-3 (8) refrain from possessing a firearm, destructive
3-4 device, or other dangerous weapon;
3-5 (9) refrain from excessive use of alcohol or any use
3-6 of a controlled substance, as defined by Section 481.002, Health
3-7 and Safety Code, without a prescription by a practitioner, as
3-8 defined by that section;
3-9 (10) undergo available medical or psychiatric
3-10 treatment, including treatment for drug or alcohol dependency, and
3-11 remain in a specified institution if required for that purpose;
3-12 (11) return to custody for specified hours following
3-13 release for employment, schooling, or other limited purposes; or
3-14 (12) satisfy any other condition that is reasonably
3-15 necessary to assure the appearance of the defendant as required or
3-16 the safety of any other person or the community.
3-17 (e) The court may not impose a financial condition on the
3-18 release of the defendant that results in the pretrial detention of
3-19 the defendant.
3-20 Sec. 3. HEARING. (a) Except as provided by Subsection (b)
3-21 of this section, a court may not detain a defendant or impose
3-22 special conditions on release under this article unless:
3-23 (1) the arresting officer or the victim of the alleged
3-24 offense files a sworn affidavit stating that the detention of the
3-25 defendant or imposition of special conditions of release on the
3-26 defendant is necessary;
3-27 (2) the court determines that the affidavit
4-1 establishes a prima facie case that:
4-2 (A) the defendant poses a threat to the safety
4-3 of any person or to the community at large; or
4-4 (B) no other procedure will reasonably assure
4-5 the presence of the defendant at subsequent proceedings in the
4-6 case; and
4-7 (3) after its determination, the court conducts a
4-8 hearing to further determine whether Subdivisions (1) and (2) of
4-9 this subsection accurately describe the defendant and the
4-10 circumstances in the case.
4-11 (b) A defendant may waive a hearing under this section, and
4-12 if the defendant waives the hearing, the court may order detention
4-13 or the imposition of special conditions on release.
4-14 Sec. 4. FACTORS TO BE CONSIDERED. In determining whether to
4-15 impose additional conditions of release under Section 2 of this
4-16 article, the court shall consider the available information
4-17 concerning:
4-18 (1) the nature and circumstances of the offense
4-19 charged;
4-20 (2) the weight of the evidence against the defendant;
4-21 (3) the history and characteristics of the defendant,
4-22 including:
4-23 (A) the defendant's character, physical and
4-24 mental condition, family ties, employment, financial resources,
4-25 length of residence in the community, community ties, past conduct,
4-26 history relating to drug or alcohol abuse, criminal history, and
4-27 record concerning appearance at court proceedings; and
5-1 (B) whether, at the time of the current offense
5-2 or arrest, the defendant was on probation, parole, other release
5-3 pending trial, sentencing, appeal, or completion of sentence for an
5-4 offense under federal, state, or local law; and
5-5 (4) the nature and seriousness of the danger to any
5-6 person or the community that would be posed by the release of the
5-7 defendant.
5-8 Sec. 5. DETENTION. If, at a hearing held under Section 3 of
5-9 this article, it is shown by clear and convincing evidence that no
5-10 condition or combination of conditions imposed on the release of
5-11 the defendant will reasonably assure the appearance of the
5-12 defendant as required or the safety of any other person or the
5-13 community, the court shall order the defendant to be detained. In
5-14 any other circumstance, the court shall set bond for the defendant
5-15 in an amount necessary to reasonably assure the appearance of the
5-16 defendant at subsequent proceedings in the case.
5-17 Sec. 6. Release order. (a) If a court releases a defendant
5-18 subject to a condition or conditions of release provided by this
5-19 article, the court shall issue a written order stating that the
5-20 release of the defendant is subject to the conditions imposed. The
5-21 order must:
5-22 (1) state all the conditions to which the release is
5-23 subject in a manner sufficiently clear and specific to serve as a
5-24 guide for the conduct of the defendant in accordance with the
5-25 conditions; and
5-26 (2) advise the defendant that on violation of a
5-27 condition of release the defendant is subject to revocation of the
6-1 release, arrest, an order of detention, and prosecution for
6-2 contempt of court.
6-3 (b) The court shall deliver a copy of the release order to
6-4 the defendant at the time of release under the order.
6-5 (c) If the alleged victim is not present at the hearing in
6-6 which the defendant is released, the attorney for the state shall
6-7 mail a copy of the release order to the victim and shall, to the
6-8 extent practicable, attempt to telephonically communicate to the
6-9 victim the terms of the release.
6-10 (d) The court may at any time, after notice to the defendant
6-11 and a hearing, amend a release order to remove or amend a condition
6-12 or to impose an additional condition on the release of the
6-13 defendant. The court shall deliver a copy of an amended release
6-14 order to the defendant as soon as practicable.
6-15 Sec. 7. Detention Order. (a) If the court orders a person
6-16 detained under Section 5 of this article, the court shall issue a
6-17 written detention order. The order must:
6-18 (1) include written findings of fact and a written
6-19 statement of the reasons for the detention; and
6-20 (2) direct that the defendant be:
6-21 (A) confined, to the extent practicable, in a
6-22 facility separate from that used to confine persons awaiting or
6-23 serving sentences or being held in custody pending appeal, if the
6-24 defendant is being detained pending trial; and
6-25 (B) afforded reasonable opportunity to consult
6-26 privately with counsel.
6-27 (b) The court by order may permit the temporary release of
7-1 the defendant, in the custody of a peace officer or other
7-2 appropriate person, to the extent the court considers necessary for
7-3 preparation of the defendant's defense or for any other compelling
7-4 reason.
7-5 (c) A detention order may not be of a duration in excess of
7-6 the time necessary to reasonably assure the safety of any person
7-7 involved in the case, but in any event may not be of a duration
7-8 that is less than 48 hours.
7-9 Sec. 8. Review of Release Order. (a) The state by written
7-10 motion may request the revocation of a release order issued under
7-11 this article or the amendment of the conditions imposed under this
7-12 article on the release of a defendant.
7-13 (b) The defendant by written motion may request the
7-14 amendment of the conditions imposed under this article on the
7-15 release of the defendant.
7-16 (c) A motion under this section must be made to the court
7-17 having original jurisdiction of the offense with which the
7-18 defendant is charged. The court shall rule on the motion promptly.
7-19 Sec. 9. Review of Detention Order. (a) A defendant ordered
7-20 detained under Section 5 of this article by written motion made to
7-21 the court having original jurisdiction of the offense with which
7-22 the defendant is charged may request the court to revoke or amend
7-23 the order. The court shall rule on the motion promptly.
7-24 (b) Judicial review of a detention order issued under
7-25 Section 5 of this article is by writ of habeas corpus.
7-26 Sec. 10. Revocation of Release Order for Violation of
7-27 Condition. (a) The state may initiate a proceeding under this
8-1 section for revocation of a release order issued under Section 6 of
8-2 this article by filing a motion with the court that issued the
8-3 order.
8-4 (b) The court may issue an arrest warrant for the defendant
8-5 charged with violating a condition of the defendant's release. As
8-6 soon as practicable after arrest, the defendant shall be brought
8-7 before the court for a hearing.
8-8 (c) The court shall enter an order revoking the release
8-9 order and ordering the defendant to be detained if, after the
8-10 hearing:
8-11 (1) the court finds that there is:
8-12 (A) probable cause to believe that the defendant
8-13 has committed an offense under federal, state, or local law while
8-14 on release; or
8-15 (B) clear and convincing evidence that the
8-16 defendant has violated a condition of the defendant's release; and
8-17 (2) the court finds that:
8-18 (A) based on the factors listed in Section 4 of
8-19 this article, there is no condition or combination of conditions
8-20 that, together with bond, would assure that the defendant will
8-21 appear as required or will not pose a danger to the safety of any
8-22 other person or the community; or
8-23 (B) the defendant is unlikely to abide by any
8-24 condition or combination of conditions imposed on the defendant's
8-25 release.
8-26 (d) If the court finds that there are conditions of release
8-27 that, together with bond, would assure that the defendant will
9-1 appear as required and will not pose a danger to the safety of any
9-2 other person or the community, the court shall order the release of
9-3 the defendant under those conditions as provided by Section 6 of
9-4 this article.
9-5 (e) Judicial review of an order revoking a release order and
9-6 ordering the defendant to be detained as provided by this section
9-7 is by writ of habeas corpus.
9-8 Sec. 11. Punishment for Contempt. A violation of a
9-9 condition of release imposed under this article may be punished by
9-10 the court as contempt of court.
9-11 SECTION 2. Article 16.17, Code of Criminal Procedure, is
9-12 amended to read as follows:
9-13 Art. 16.17. Decision of Judge. After the examining trial
9-14 has been had, the judge shall make an order committing the
9-15 defendant to the jail of the proper county, discharging him, <or>
9-16 admitting him to bail, or ordering a hearing under Section 3,
9-17 Article 17.46, of this code, as the law and facts of the case may
9-18 require. Failure of the judge to make or enter an order within 48
9-19 hours after the examining trial has been completed operates as a
9-20 finding of no probable cause and the accused shall be discharged.
9-21 SECTION 3. Article 17.29, Code of Criminal Procedure, is
9-22 amended to read as follows:
9-23 Art. 17.29. Accused Liberated. When the accused has given
9-24 the required bond, either to the magistrate or the officer having
9-25 him in custody, and if the court does not order a hearing under
9-26 Section 3, Article 17.46, of this code, he shall at once be set at
9-27 liberty.
10-1 SECTION 4. Subsection (c), Article 44.04, Code of Criminal
10-2 Procedure, is amended to read as follows:
10-3 (c) Pending the appeal from any felony conviction other than
10-4 a conviction described in Subsection (b) of this section (where the
10-5 punishment does not exceed 15 years confinement), the trial court
10-6 may deny bail and commit the defendant to custody if there then
10-7 exists good cause to believe that the defendant would not appear
10-8 when his conviction became final or is likely to commit another
10-9 offense while on bail, permit the defendant to remain at large on
10-10 the existing bail, or, if not then on bail, admit him to reasonable
10-11 bail until his conviction becomes final. The court may impose
10-12 <reasonable> conditions on the release of the defendant as provided
10-13 by Article 17.46 of this code <bail> pending the finality of his
10-14 conviction, in which event the release of the defendant is governed
10-15 by that article in addition to other applicable law. <On a finding
10-16 by the court on a preponderance of the evidence of a violation of a
10-17 condition, the court may revoke the bail.>
10-18 SECTION 5. The change in law made by this Act applies only
10-19 to the release of a defendant on or after the effective date of
10-20 this Act. The release of a defendant before the effective date of
10-21 this Act is governed by the law in effect when the defendant was
10-22 released, and the former law is continued in effect for that
10-23 purpose.
10-24 SECTION 6. This Act takes effect September 1, 1993.
10-25 SECTION 7. The importance of this legislation and the
10-26 crowded condition of the calendars in both houses create an
10-27 emergency and an imperative public necessity that the
11-1 constitutional rule requiring bills to be read on three several
11-2 days in each house be suspended, and this rule is hereby suspended.