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Texas’ systems for deciding who should remain behind bars while awaiting trial have long been criticized for unfairly keeping poor people locked up simply because they don’t have the cash to post bail. But it is the death of a police officer and rising homicide rates that have prompted the Texas Legislature to prioritize rewriting the rules for pretrial release this session.
Gov. Greg Abbott and Lt. Gov. Dan Patrick have each put their weight behind efforts to change the state’s bail practices, when courts decide the terms for releasing people legally presumed innocent as their criminal cases are pending.
Their priorities, aimed primarily at keeping dangerous defendants behind bars, are largely detached from what many bail reform advocates seek — keeping fewer people in jail simply because they’re poor.
In the House, the governor is reupping a push from 2019 to keep more defendants deemed dangerous in jail before trial in the name of a slain state trooper, Damon Allen, who was shot during a traffic stop in 2017 while the suspect was out on bond.
In the Senate, Patrick has boosted legislation largely reacting to a shifting bail system in his hometown of Houston after federal courts found the county’s cash bail practices unconstitutional.
The two measures are starkly different, though both authors think the two chambers will be able to find common ground by the time lawmakers go home in May.
Houston Republican state Sen. Joan Huffman said her bill, Senate Bill 21, is meant to “address the appalling uptick in violent crimes by defendants out on multiple personal bonds,” which don’t require cash up front. State Rep. Andrew Murr, a Junction Republican who has worked for several years on bail legislation, called his House Bill 20 “a honest and sincere attempt to provide for bail reform in the State of Texas.”
Political pressure from the top is pushing both Republican-led bills steadily through the Texas Capitol. SB 21 is set to go before the full chamber, and HB 20 is up for debate Tuesday in what is expected to be a lengthy committee hearing.
Some aspects of the bills have garnered widespread support — like increasing training for judges and hearing officers who set bail for criminal defendants. But other major provisions, like a statewide risk assessment tool called for in the House bill, and restrictions on who can pay for a defendant’s release in the Senate’s, have met with opposition from bail reform advocates.
And both bills, the advocates argue, continue to rely on a money-based system – allowing someone who is arrested to quickly walk out of jail if they have access to cash, while a similar defendant who is poor could languish behind bars for months. Both measures would ban courts from releasing certain defendants on no-cost, personal bonds at any point, taking away what advocates argue is important judicial discretion.
“Both bills’ main features is that they will make more legally innocent Texans purchase their freedom from jail,” said Nick Hudson, a policy and advocacy strategist with the American Civil Liberties Union of Texas. “Our hope is that lawmakers will go back to the drawing board and find a path to the bail bill that will meaningfully improve our bail system instead of moving us backwards.”
In the House
Constitutionally, most Texas 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. Generally, the riskier a court thinks a defendant is to skip town or commit a new crime, the higher their money bail is set. Courts often determine that risk by applying a preset sliding scale to set bail based only on the current charge a defendant faces.
So some murder suspects are able to post bond on a $750,000 bail amount and walk free, as was recently seen in Harris County, while others accused of minor crimes sit in jail for months unable to pay $100.
HB 20 seeks to gauge risk differently. It would let courts more often prohibit any pretrial release in more violent cases, and allow more low-risk defendants to be freed without posting cash, Murr said. (To allow for more detention without bail, the legislature and Texas voters would also have to approve a constitutional amendment.)
“The imposition of bail against low risk arrestees should not punish those who are likely to appear for court and not a danger to the community but simply can’t pay whatever amount of bail has been set,” he said in a written response to questions. “Conversely, we want to make sure that policy provides a framework that higher risk, more dangerous persons don’t easily bond out – either because they are wealthy or because a personal bond was set.”
The legislation would create a statewide risk assessment tool for judges to use when estimating the likelihood of a criminal defendant committing another crime or skipping court hearings while their case is pending. But the tool, a critical piece highlighted by Abbott, is mistrusted by bail reform advocates who fear its focus on past criminal convictions will perpetuate already-existing racial disparities in the criminal justice system.
“Risk assessment tools make people without money seem risker,” said Laquita Garcia with the Texas Organizing Project. “They just reinforce systemic racism by labeling Black and brown people as higher risk.”
Murr said work has been done to ensure the tool does not disproportionately affect those in racial or ethnic minority groups, and that as it is implemented, it will be monitored for any potential disparities.
The House bill would also restrict who could be released from jail on a no-cost, personal bond. Murr said that a restriction would only be for “specific, very egregious offenses.” But advocates have railed against a further restriction on moneyless bail and slammed some of the initially included offenses as political, like a felony committed while participating in a riot — striking a nerve after arrests during protests against police brutality last year.
And some activists note that the bar included low-level assaults against a police officer. Krish Gundu with the Texas Jail Project worries it would lead to an even more people with mental illness being stuck in jail, because it is common to see resisting arrest or officer assault charges tied to a mental health crisis. She said spitting and negative reactions to being touched are common among people with mental illness, and are counted as assaults on law enforcement.
“We already have a huge problem of people with mental illness sitting in our county jails,” she said. “This is only going to make that much much worse. This is like pouring gasoline on a burning house.”
An updated version of HB 20, set to be presented to the House Criminal Jurisprudence Committee Tuesday, did not include the personal bond restrictions for low-level assault against officer or riot charges.
Houston’s hold on the Senate
In the Senate’s major bail bill, Harris County’s influence is apparent.
In early 2019, eager to resolve a federal civil rights lawsuit, Texas’ most populous county stopped requiring most people accused of low-level crimes from putting up cash to get out of jail on bond. Independent monitors of the misdemeanor system settlement have since found that the percentage of defendants arrested for new crimes within a year of their original arrest went down after the county changed its bail practices.
Still, in the last year, homicides have been steadily increasing in Houston as they have throughout the nation. Though some county officials say the bail system changes have no connection to the increase, many law enforcement officials and local Republicans have blamed newer misdemeanor and felony bail practices.
With repeat high-profile murders allegedly committed by people released on bonds, Huffman is pushing for the state to step in to change bail practices in her county. Many of the suspects in highly publicized murders cited by Houston politicians or crime victim supporters had been released on cash bail, though that system would not be altered under the bill.
“When judicial discretion is being abused, and violent habitual offenders are continuously released through the use of minimally restrictive personal bonds, the legislature must act,” she said in written response to Tribune questions.
SB 21 would bar courts from releasing defendants on no-cost, personal bonds if they have ever been convicted of a violent crime, or are rearrested while out on bond for a pending violent criminal case. Those restrictions were already largely in effect for much of 2020 — the language closely resembles that in Abbott’s still-in-effect emergency order that limited cashless jail release after Harris County officials sought to reduce the jail population at the start of the pandemic.
Another sticking point for some bail reform advocates in Huffman’s bill is restrictions it would impose on charitable bail organizations, originally with language similar to what has been proposed by the powerful bail bonds industry. After the in-custody Minneapolis death of George Floyd prompted nationwide unrest and protesters were arrested across the country, nonprofits that sought to post people’s bail saw millions of dollars in donations.
As it was voted out of committee, SB 21 would bar charitable organizations that are not churches from posting bond for anyone accused, or previously convicted, of a violent crime. Huffman said she included restrictions and data collection on the organizations in her bill because they are new players in the bail system.
“The purpose of this language is to collect information that would allow us to better understand how these organizations work and to make sure they are not bailing out violent criminals or misleading donors,” she said.
For Garcia, who works at the Texas Organizing Project, the restriction feels like a response to George Floyd protests. She said her organization, which bailed out more than 250 people in Dallas, Bexar and Harris counties last year, works hard to understand the needs of individuals for whom they post bond, and to make sure they are able to get to court.
“Our community is clearly saying we’re willing to put up our money to get these people out of jail pretrial,” she said.
A rocky path forward
The governor has declared HB 20, dubbed the Damon Allen Act after the slain trooper, an emergency legislative item. And Patrick listed SB 21 as a priority bill at the beginning of the legislative session.
The political will to pass some form of bail legislation may outweigh the strong pushback from some long-term bail reform advocates. For Derek Cohen at the Texas Public Policy Foundation, a conservative think tank, Murr’s bill has the most promise — paired with the resolution that would be required to alter the state constitution. He said resistant advocates are laser-focused on the issue of a defendant’s financial status and eliminating cash bail.
“Their focus on this indigency part makes them kick this idea of a dangerousness issue into the future or not consider it at all,” he said.
Murr and Huffman both said they hope for a path forward on meaningful bail legislation this year. Huffman has already largely rewritten her bill based on feedback from the Senate committee hearing, and the new version of Murr’s bill is expected to be ready before it is debated Tuesday.
But for many advocates, and a former Republican judge who was a defendant in the Harris County misdemeanor bail lawsuit, the continued reliance on cash as a means for release from jail will remain a problem. Mike Fields, who was voted out in a Democratic sweep of the county bench in 2018, testified that after 20 years as a judge, he learned that “money doesn’t make us safer. Conditions make us safer.”
“We need to seriously consider how we do bail in Texas and in the U.S. in general,” he reflected on the phone later. “The federal system has eliminated it and it seems to work well.”
Disclosure: The Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.