As I write this article today, the second special session of the Texas legislature has ended, and the Texas Denial of Bail for Certain Crimes Amendment (2021) did not pass. As a result, this proposed constitutional amendment currently will not be on the November 2, 2021, ballot in Texas as a legislatively referred constitutional amendment. This amendment was designed to authorize a judge or magistrate to deny bail for certain crimes including violent or sexual offenses or continuous trafficking of persons. The Texas legislature, however, is scheduled to begin its third special session with five agenda items on September 20, 2021. Fortunately, this constitutional amendment is not on the current agenda. I want to thank our outstanding lobbyists – Allen Place, Shea Place, and David Gonzalez – and our excellent legislative committee for their wonderful efforts regarding this proposed amendment and many other legislative issues they successfully faced during this legislative year.
The Texas legislature, unfortunately, passed S.B. No. 6 “relating to rules for setting the amount of bail, to the release of certain defendants on a monetary bond or personal bond, to related duties of certain officers taking bail bonds and of a magistrate in a criminal case, to charitable bail organizations, and to the reporting of information pertaining to bail bonds.” This bill is forty pages in length and covers many bail issues. The bill requires a public safety report (risk assessment) on all offenses Class B and higher. The final version of this bill dropped the broad limitation on charitable bail organizations but retained some reporting requirements for charitable bail organizations. One concerning issue regarding this bill is as follows: “Except as provided by Article 15.21 (Release on personal bond if not timely demanded), Article 17.033 (Release on bond of certain persons arrested without a warrant), and Article 17.151 (Release because of delay), this bail bill amends Article 17.03 (Personal bond) of the Texas Code of Criminal Procedure, effective September 1, 2021, by eliminating personal bonds for the following: (1) persons charged with an offense involving violence (murder, capital murder, kidnapping, aggravated kidnapping, trafficking of persons, continuous trafficking of persons, continuous sexual abuse of young child or disabled individual, indecency with a child, assault where the offense is a felony family violence or a second degree felony committed against a judge or peace officer lawfully discharging their duties or in retaliation, sexual assault, aggravated assault, aggravated sexual assault, injury to a child/elderly/disabled individual, repeated violation of certain court orders, continuous violence against the family, aggravated robbery, taking or attempting to take a weapon from an officer, aggravated promotion of prostitution, compelling prostitution, or sexual performance by a child); or (2) while released on bail or on community supervision for an offense involving violence, persons charged with committing any felony or with assault, deadly conduct, terroristic threat, or disorderly conduct involving a firearm. A citizen accused of these offenses, however, may still bail out with a surety or with cash bail for those listed offenses.”
It is very concerning how indigent citizens and minorities will be adversely affected by S.B. No. 6. Many citizens charged with these offenses are currently able to be released from jail only by using a personal bond because of the very low amount required to be paid for release. How many citizens will be denied bail merely because they will be unable to afford a surety or cash bond? This bill will have a dramatic impact on county jails and magistrates. Jail populations will be increased resulting in a financial burden on counties throughout Texas. With respect to these and other adverse effects resulting from this bill, it was recently reported that, “Last month, the ACLU of Texas sent a letter to all 254 counties in Texas informing them that following the law “might land them in court.” SB6 “conflict[s] with our constitutional right to pretrial liberty and the presumption of innocence,” it said in a statement.1 Time will tell how our brothers and sisters in the criminal defense bar will handle these changes to the bail system in Texas. I want to let all of you know, however, that the Texas Criminal Defense Lawyers Association is here to help you with these and other challenges all of us face every day by providing the best continuing legal education possible.