Last Updated on May 17, 2021 – 10:41 PM CDT
This article originally appeared in The Texas Tribune: Read More
An Austin Bail Bonds II sign near Interstate 35 earlier this year.
Credit: Evan L’Roy/The Texas Tribune
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Texas lawmakers’ attempts to reform how — and whether — criminal defendants get out of jail while awaiting trial is likely headed for a closed-door showdown over the different legislative approaches the House and Senate each devised.
State Rep. Andrew Murr, the Junction Republican who led House Bill 20, has touted his legislation as a push to provide more information to courts and strike a balance between releasing low-risk, poor defendants while still keeping high-risk defendants in jail. Senate Bill 21 author state Sen. Joan Huffman, R-Houston, has said her measure is meant to address “the appalling uptick in violent crimes by defendants out on multiple personal bonds,” which don’t require cash up front.
The upper chamber passed SB 21 last month, but it has yet to get a hearing in the House Criminal Jurisprudence Committee. The House passed HB 20 earlier this month, and it was sent to the Senate Jurisprudence Committee, which Huffman chairs.
On Friday, she gutted the language of the House’s priority bail bill and replaced it with the significantly different measures from her own bill, which would let fewer criminal defendants out of jail before trial unless they can post cash bonds. Her committee then approved the reworked legislation and sent it to the upper chamber as an uncontested bill.
Though still titled House Bill 20, the bail legislation now headed before the full Senate exactly matches Senate Bill 21.
A spokesperson for Murr declined to comment on the bill swap Monday, and Huffman’s spokesperson did not immediately respond to questions.
The drastic change will likely lead to closed door negotiations, where the authors of the two different versions of the bill and a handful of other lawmakers will work to iron out a compromise. Bail reform advocates who oppose both bills fear a potential merging of the legislation could make it worse.
“Both bills are bad, so our hope is that we don’t get some sort of Frankenstein bill that just ratchets up incarceration and punishes people for being poor,” said Nick Hudson, a policy and advocacy strategist with the American Civil Liberties Union of Texas.
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.
In federal litigation and state houses across the country, bail reform efforts have shifted pretrial systems away from cash bail. In Texas, federal judges found the state’s two largest counties had unconstitutional bail systems that discriminated against poor defendants. A person with money could walk free from jail before trial while a similar defendant with a similar criminal history may stay in jail for weeks or months simply because they don’t have access to cash.
But Texas’ priority legislative efforts on bail have focused heavily on keeping more people deemed dangerous locked up, and less on releasing people who are kept in jail largely because they’re poor.
In Houston, rising homicide counts and repeat high-profile murders allegedly committed by people released on bond prompted outcry from local Republicans and law enforcement which ultimately led to Huffman’s bill. The 2017 killing of state trooper Damon Allen during a traffic stop while the suspect was out of jail on bond sparked the House measure.
Many bail reform advocates have denounced both the House and Senate bills as they passed their respective chambers. And some questioned the constitutionality of such bills, arguing that the systems implemented by both the initial HB 20 and SB 21 would still allow for people with money to be released while similar defendants who are poor would stay locked up.
As passed by the chambers, both bills would ban the release from jail on personal bonds — which don’t require cash up front — for those accused of some violent or sexual crimes. But SB 21 would also bar release on personal bonds if the person had ever previously been convicted of a violent crime, even if the current charge was minor. Any defendant would still be able to be released if they had access to enough cash.
As it left the House, HB 20 would have also required judicial officers to use a risk assessment tool when making bail decisions. Murr, and some conservative bail reform advocates, have argued that HB 20 would deprioritize defendants’ financial means by providing reports that weigh the likelihood of them intentionally skipping court or committing new crimes instead of simply assigning a dollar amount based on current charges. Huffman has previously said she opposes risk assessments.
Other bail reform advocates and Democrats questioned the racial bias of such assessment tools, which they fault for their consideration of criminal history in a system that disproportionately incarcerates Black people.
Aside from restricting release on personal bonds, SB 21 and the current version of HB 20, would require court officers setting bail to first review a defendant’s criminal history and citizenship status. It would also bar charitable organizations that are not churches from posting bond for anyone accused, or previously convicted, of a violent crime. Such provisions were promoted by the for-profit bail bonds industry after such organizations began bailing out protesters arrested in the unrest that followed George Floyd’s murder last year.