Texas has dramatically changed the narrative on the much-discussed and controversial subject of bail reform. As the 2021 legislative session unfolded, Gov. Greg Abbott proposed a different kind of reform to the state’s criminal justice system that would not tie the hands of judges. With the passage of Senate Bill 6 after a lengthy delay, new laws are finally set to be enacted and hold the promise that it really is possible to implement good bail reform measures that make sense and serve the public’s best interests.
In the past five years, criminal justice reform has been passed in a number of jurisdictions across the country. Reformers argued that change was needed to protect the rights of the poor and to reduce the incarceration of individuals arrested and charged with certain low-level crimes, while claiming that doing so would not jeopardize public safety. They also argued that the private bail system was unconstitutional, despite rulings from two subsequent circuit courts of appeals that held that it is substantively constitutional.
The results from measures that have been pushed through have not been positive. A year after Alaska’s legislature approved reforms to its bail and criminal justice system, many of the changes were repealed on the basis that they did not work. In New York, state lawmakers passed new laws that were such a disaster that even during the COVID-19 pandemic a large number were forced to be repealed.
Unfortunately, local communities are now seeing rising crime as the consequence of these changes. Law enforcement agencies everywhere have identified these “bad” bail reform measures as the source of the problem. These arguments are now being supported with analytical evidence.
In early September, District Attorney Kim Ogg, a Democrat serving Texas’ Harris County, issued a comprehensive report which determined that previous bail reform measures attempted in Harris County were responsible for increased crime and recidivism. The county had entered into a settlement in a federal court lawsuit and agreed to enact many of the measures pushed in other jurisdictions. Ogg’s painstaking research demonstrated conclusively that conventional wisdom was incorrect. It determined that bail reform tied the hands of judges, while allowing criminals to take advantage of the system, and that these measures were the source of increasing crime.
During the 2021 Texas legislative session, Gov. Abbott and many lawmakers pledged to recast the state’s criminal justice system to one based on accountability and committed to protecting public safety. As with most things worthwhile, the journey was difficult. But after dying in the final hours of the regular session and failing yet again during the first special session called by the governor, bail and criminal justice reform finally passed in the second special session. Senate Bill 6 was signed by the governor on September 17.
The fundamental problem every jurisdiction faced was how to effectively process large numbers of individuals through the county’s jails cost efficiently. Individually magistrating each of these defendants would satisfy constitutional requirements, but is costly to administer in urban centers. A search for alternatives to individual magistration has been at the center of reforms in other states.
Unfortunately, Harris County made the same mistake as New York. In the Empire State, reforms required judges to simply release without a bond defendants arrested for a long list of crimes. Harris County set up a similar system in which almost all misdemeanors were released on a $100 free personal recognizance (PR) bond without ever seeing a magistrate. This left no gatekeeper to make an individual assessment and review of a defendant’s criminal history or even make a consideration of the other factors set out in article 17.15 of the Texas Code of Criminal Procedure.
Jurisdictions across the country have been trying to address genuine concerns in seeking alternatives to individual magistration. But reformers have repeatedly pushed the same solution of simple release, promising a different outcome, even though the results consistently have been poor. Yet, remarkably, Texas chose to step off the path of bad, failed bail reform. Instead, it laid out a trail for criminal justice reform based on accountability and training. In response to policies that clearly were not working, Senate Bill 6 represented a new approach.
There are four major changes set out in Senate Bill 6. The first and probably most important part of the bill involves additional rules for setting bail. It adds requirements to article 17.15 of the Texas Code of Criminal Procedure that judges must review a defendant’s criminal history before setting bail. Other changes include requiring a magistrate to consider whether an underlying offense involves violence in general or against a peace officer. It also calls for a magistrate to review the citizenship status of a defendant. Senate Bill 6 also requires a judge to sign a form representing that a magistrate or judge has reviewed information required by changes in the law before bail has been set. The executed form is to be publicly available through a database maintained by the Office of Court Administration.
A large part of the bill is devoted to how to accomplish the requirement to review a defendant’s criminal history. While it may seem to be a commonsense necessity to conduct such a review before setting bail, there have been technical limitations on the ability of a given county to do so outside of its own system of records. The bill addresses this by requiring the Texas Department of Public Safety to establish training classes to teach magistrates how to review the department’s criminal history database. Also, Senate Bill 6 requires the Texas Office of Court Administration to create a portal that is to be made available to every county, free of charge. It is anticipated that this public safety report system will almost instantly display a summary of a defendants’ criminal history by pulling data from the existing Department of Public Safety database.
Additionally, Senate Bill 6 creates article 17.023 of the Texas Code of Criminal Procedure, which states if a defendant is out on bond and is arrested on a new charge in the same county, only the court over the previous case can release the defendant on that new offense. If the new charge arises in a different county, notice must be sent to the court over the existing offense. Further, if the county seeks relief from providing individual magistration for all defendants, the use of a bail schedule is authorized, which adopts procedures set forth in the Fifth Circuit case of ODonnell v. Harris County to protect the poor.
Senate Bill 6 also requires a magistrate to place the least restrictive conditions on a bond after it is set and establishes requirements for giving notice of these conditions to both defendants and law enforcement. It would appear that these changes are intended to limit a judge’s ability to establish a standard set of conditions to be placed on anyone on bond in their court as a standing order (especially if the conditions are not related to a defendant’s criminal charges). It seems that the days of requiring drug testing for all defendants on bond may be over, even if they are charged with theft.
The second part of Senate Bill 6 addresses training that must be provided to judges and magistrates regarding the setting of bail. New article 17.024 of the Texas Code of Criminal Procedure requires the Office of Court Administration (OCA) to establish an eight-hour training class for new magistrates and a two-hour refresher course for existing judges to be taken every two years regarding setting bail. OCA is required to determine whether a magistrate demonstrates competency with regard to materials presented in the classes. However, the bill does not give any further guidance on what would satisfy the competency requirement.
The third component of Senate Bill 6 address the use of free or personal recognizance bonds for some of the most serious crimes in Texas. Previously, article 17.03 of the Texas Code of Criminal Procedure established a list of crimes for which a magistrate could not grant a PR bond, allowing only a trial court judge to do so. However, only a couple of offenses were specified. Through its passage, major changes have been made to article 17.03.
Almost all crimes listed heretofore, along with newly-added offenses, are no longer eligible for a PR bond. A provision has also been added that states a defendant is not eligible for a PR bond if he or she is currently out on bond and is then charged with a new offense punishable as a felony or is one involving assault, deadly conduct or terroristic threats.
The fourth part of Senate Bill 6 creates article 17.071 of the Texas Code of Criminal Procedure dealing with charitable bail organizations. It requires that groups posting more than three bonds in a 180-day period must register as a bail fund. The registration must be completed in each county in which it intends to operate. Also, these funds must make monthly reports to the sheriff for every county in which it conducts business regarding the individuals for whom they have posted bonds and whether they have any failures to appear. The sheriff must then forward the reports to the Office of Court Administration, with certain penalties assessed if the bail fund fails to submit the required reports. Exempt from the registration and reporting requirements are religious organizations and family members. Other than registration and reporting, section 17.071 does not limit bail funds from writing any bond.
While tremendous improvements to our system have been made, one important component of the Texas criminal justice reform package that failed to pass involved an expansion of preventative detention. A proposed constitutional amendment contained in Senate Joint Resolution 3 would have provided judges with the discretion to deny bail to defendants charged with certain sexual and violent offenses. Unfortunately, it failed due to its inability to win two-thirds support from the state House of Representatives. The Texas Governor added the constitutional amendment back to the agenda for the third special session on September 22. Senate Joint Resolution 3 was filed, considered in committee and voted out of the Senate the same day. It then moved to the House of Representatives where it was defeated in the second special session.
Ralph Waldo Emerson once wrote, “Do not go where the path may lead. Go instead where there is no path and leave a trail.” In boldly trailblazing a new path for criminal justice reform, Texas rejected old approaches that not only failed to work, but made matters worse. Learning the tough lessons from other jurisdictions where bail reform measures have led to an increase in crime, it has sought a reasoned, logical and compassionate approach. The result is a rebalancing of the concepts of protecting the poor in such a way that does not tie the hands of judges from holding career criminals accountable for their actions.
Texas has wisely chosen to veer away from the course of reform that would have led inevitably to failure. Instead, it has decided to chart its own path and leaves a trail for others to follow — one based on good, commonsense bail and criminal justice reform.