The Crim Pro Ex Libris Juris series highlights general topics and legal information resources on Texas Criminal Procedure. This installment covers the requirements for bail in Texas and also briefly touches upon some of the constant changes that are being made in the United States and within Houston specifically to ensure bail requirements continue to evolve when necessary.
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After being arrested for a crime, a defendant has a right to an initial hearing, also known as an arraignment. “At an initial appearance, a judge advises the defendant of the charges filed, considers whether the defendant should be held in jail until trial, and determines whether there is probable cause to believe that an offense has been committed and the defendant has committed it.” Bond conditions are set at this initial hearing.
The U.S. Constitution does not create a defendant’s right to bail, only that excessive fines may not be imposed if bail is deemed appropriate (as decided by the U.S. Supreme Court in United States v. Salerno, 481 U.S. 739 (1987)). The Eighth Amendment of the United States Constitution specifically states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” According to the Texas Constitution, however, “all individuals, except those charged with a capital murder, have a right to be released on bail if they can provide sufficient collateral.” A defendant can also be denied bail in Texas if a few different procedural safeguards are met. These are outlined in Section 11a, 11b, and 11c of the Texas Constitution.
To determine the cost of bail and to ensure no excessive bail is required, the judge will look at facts such as “how long the defendant has lived in the area, if they have family nearby, prior criminal record, and if they have threatened any witnesses in the case” in order to make their decision. If a defendant can’t post bond in Texas, “then the prosecutor must file the charges against [them] by complaint, information or indictment within: 15 days for Class B Misdemeanor, 30 days for Class A Misdemeanor, or 90 days for any Felony.”
A bond reduction hearing may be scheduled if a defendant cannot afford the bail amount originally set by the judge. However, it is up to the defendant to prove that the amount set is excessive. “Also, the defendant will need to show a legitimate effort to raise the funds and inability to do so” when they appear at the bond reduction hearing.
Once bail is set, the defendant must post bond before they can be released. There are three different types of bond. The first is a cash bond. “Cash bond is when a defendant pays the full amount of the bond in cash to the Sheriff. The money will be refunded once the case is over.” The second is a bail bond. “Bail bond is when a defendant uses a bonding company or bail bondsman to borrow the collateral. The bondsman will charge a fee and may require additional conditions on the defendant. The fee will not be refunded once the case is over.” The third is a personal recognizance bond. “Personal recognizance bond, or PR Bond is when the Court uses its discretion to release the defendant without requiring a surety or other collateral. PR Bonds are not an option in some serious felony offenses.”
Via the Prison Policy Initiative
Misdemeanor Bail Reform in Houston
Before 2017 here in Houston, a judge would refer to a fixed cash bail system that set a defendant’s bail at a fixed price regardless of their ability to pay. Consequently, this ensured individuals who were living in poverty were unable to post bail while people of means were out quickly. Even an arrest due to a minor crime such as driving with a suspended license could cause someone to stay in jail and face further consequences once they were released such as losing their jobs, finding a way to pay rent after being unable to work, etc. This led to the filing of a federal class action against Harris County and “moved for a preliminary injunction to end the practices that led to these detentions.”
This case, after three years of litigation, reached a settlement in 2019. “First, the decree sets out categories of arrestees who are entitled to a prompt release….The rule rescinded the prior secured money bail schedule, provided for a new set of procedures, and required the prompt release of misdemeanor arrestees, except for six “carve-out” categories of offenses. Persons arrested for misdemeanors that do not fall within the six categories of carve-out offenses must be promptly released under a personal bond or a General Order Bond.” The decree also requires “judges make their findings ‘by clear and convincing evidence’ that the arrestee has the ability to pay the amount required, or does not have that ability to pay but that ‘no less-restrictive condition or combination of conditions’ could ‘reasonably’ prevent flight from prosecution and protect the safety of the community.” It also “provides for improved procedures upon release, including an improved approach towards scheduling and notifying people regarding court appearances” Finally, the decree requires consistent monitoring to “evaluate decree compliance and to approve a range of decisions to be made as the decree is implemented.”
However, amidst reform, there is also pushback around the current state of bail within Texas challenging the current process as too lenient when it comes to felony offenders specifically. Legislators have proposed a bipartisan bill that would amend the Texas Constitution (Section 11 and 11a of Article I) and will allow judges to deny bail for violent offenders if it does pass. Specifically, this would apply to a defendant accused “of a [felony] violent or sexual offense or of continuous trafficking of persons.” This bill is scheduled to be heard on March 7, 2023. If you would like to watch this hearing live, the Texas Senate broadcasts their public hearings here. For the bill to become law, it will have to pass both chambers and be approved by voters in November 2023.
If you would like to access any of the HeinOnline articles referenced within this post, you may be able to access this database remotely. Please read this blog post for more information
Further Resources:
Houston Bonding Process
Harris County Bail Bond Board
ODonnell Consent Decree
Trapped: Cash Bail in America
Prison Policy Initiative - Pretrial Detention
Harris County Pretrial Reform Results
Please note, information from the Law Library is not a substitute for the advice of an attorney.