Bail in Texas could see key changes under House bill, but some lawmakers still see an unequal system


Last Updated on May 3, 2021 – 8:41 PM CDT

This article originally appeared in The Texas Tribune: Read More

Around the Clock Bail Bonds on 10th St. and Nueces in Austin in 2019. Texas lawmakers are working on bills that could alter the way criminal defendants can be released from jail before trial.

Credit: Miguel Gutierrez Jr./The Texas Tribune

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The Texas House on Monday moved to alter the way criminal defendants can be released from jail before trial. The priority legislation would, in part, require judicial officers to use a risk assessment tool when making bail decisions and ban cashless release for those accused of some violent or sexual crimes.

House members initially approved House Bill 20 after significant changes — largely by the bill’s author — were made on the floor.

“The goal today is to strike a balance in which we provide … credible information to our trained magistrates so that they can determine that those that are low risk have a chance to get out while those who are higher risk, with a violent offense or a violent criminal history, they don’t easily pay and immediately walk on the street the next day and do something else that harms us,” said state Rep. Andrew Murr, the Junction Republican who authored the bill.

Named the Damon Allen Act after a slain state trooper, HB 20 was deemed an emergency item by Gov. Greg Abbott at the beginning of the legislative session after similar legislation failed in 2019. The suspect in Allen’s shooting death during a 2017 traffic stop was out of jail on cash bail at the time.

On Monday, the bill was tentatively approved by the House on a simple voice vote, but it still needs a final vote before it is sent to the Senate — where its future is uncertain. Last month, the Senate passed a competing priority bail bill which varies significantly from the House’s measure. Senate Bill 21 since has stalled in the House Criminal Jurisprudence Committee.

When making bail decisions, courts decide what restrictions are needed to release from jail a defendant who is legally presumed innocent while ensuring the person comes back to court and does not present a threat to public safety. Most often in Texas, that decision is currently based on a dollar amount.

The cash-reliant system has long prompted criticisms from bail reform advocates who argue it unfairly keeps poor people locked up while similar defendants with cash walk free. And federal courts have found bail practices in Texas’ two most populous counties unconstitutional for discriminating against poor defendants.

Murr, and some conservative bail reform advocates, have argued that HB 20 will prioritize a defendant’s risk instead of financial means by providing a report that weighs the likelihood of them intentionally skipping court or committing a new crime instead of simply assigning a dollar amount based on the current charge.

“We tend to punish those who can’t pay,” Murr said.

More than 80% of people in Texas jails have not been found guilty and are still awaiting trial, he said. By requiring courts to release people on “the least restrictive conditions and minimum amount of bail,” Murr said more people could be released on personal bonds, which don’t require any cash up front.

But many bail reform advocates have denounced both the House and Senate bills, arguing against the use of risk assessment tools, restrictions on cashless bonds and a continued reliance on cash bail.

State Rep. Jasmine Crockett, D-Dallas, raised constitutional concerns with prohibiting judges from releasing those accused of violent crimes on personal bonds, since such defendants could still be released if they have access to enough cash. She also echoed arguments against risk assessment tools and the consideration of criminal history in a system that disproportionately incarcerates Black people.

Texas’ population is 12% Black. In Texas jails in 2015, 29% of people were Black, according to The Vera Institute. In 2019, about a third of inmates in Texas prisons were Black.

“Because people haven’t been able to afford bail, so many of them take hits on their records because that’s the difference between losing their kids or losing their job” she said. “They will do anything to get out including taking a plea on an offense that they didn’t actually commit.”

“We’re taking a tool and we are basing our future decisions on a system that we all agree has been flawed in the past,” she added.

Murr said that the risk assessment tool — since renamed a public safety report — will give more information to judges, who can give the report as much weight as they want. The report would calculate how likely it is for a defendant to violate the conditions of their bond based on factors like age, current offense, pending charges and recent serious criminal history. The bill states that the report can’t use factors that disproportionately affect people of color or poor people, and it must be demonstrated to be unbiased.

Currently, Murr noted, those setting bail sometimes have no knowledge of the defendant beyond their current charge.

“There’s not a requirement that they have any background information at all,” he said.

Notably, the bill would still allow defendants to be released from jail before a public safety report is completed. Former Harris County Judge Mike Fields, once a defendant in Harris County’s bail litigation, said at a committee hearing that the provision could bring similar constitutional challenges.

“We’re right back to, if you have money, it doesn’t matter how dangerous you are, you’re OK,” he later told The Texas Tribune. “If you don’t have money, we have to do a deep dive into you to see if you can be released.”

A significant change made to the bill on the floor was the removal of language that would prohibit jail release for some defendants. Under the Texas Constitution, most criminal defendants are eligible to be released on bail, though some — like capital murder suspects and those accused of a felony while out on bond for another alleged felony — may be kept in jail without the option to bail out.

HB 20, in partnership with a resolution to change the constitution, sought to let courts more often deny any pretrial release in more violent cases. But as the needed resolution has stalled in the House Criminal Jurisprudence Committee, Murr stripped the bill of language to increase bail denials.