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The House Select Committee on Constitutional Rights & Remedies met on August 21 to take up SB 6 (Huffman) relating to rules for setting the amount of bail. SB 6 was left pending.

This report is intended to give you an overview and highlight of the discussions on the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Opening Comments

  • Rep. Moody is participating virtually
  • Chair Ashby – Intend to vote on SB 6 before the committee adjourns

 

SB 6 (Huffman) 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.

  • Smith – Damon Allen Act, seeks to make bail system reforms
  • Majority of changes in this version of the bill are clarifying, substance of the bill is largely the same
  • Section 3 is new, requires magistrate to allow defendant to file affidavit of indigency if defendant is subject to bail schedule
  • Bail form is collected by OCA, OCA to report to Gov and legislature about types of bonds issued during previous year
  • Bill is designed to prevent release of violent repeat offenders, not aimed at jailing low-level offenders
  • Public safety report system to be developed by OCA, distributed for free and must be considered
  • Increases training reqs for those setting bail
  • Standardized bail form to be completed by everyone setting bail, also accessible through OCA website
  • Geren – Can you explain the reason charitable orgs must do more criteria than for-profit orgs
    • Smith – Lack of transparency with charitable bail orgs, guardrails put in place by Sen. Huffman by certain types of crimes
  • Geren – What difference does it make where the money comes from for these orgs?
    • Trying to determine who these orgs are and what their purposes are, provision does not prevent churches
  • Geren – Rather than prohibiting them from doing this, we could find out who they are; don’t have a problem with that, but bill prohibits them from bailing people when a for-profit can, if this is a way to pay the bail bondsman, let’s just say that
    • Charitable bail orgs are not prohibited from bailing the vast majority of cases, only the violent crimes and when defendant has previous conviction in last 10 years
  • Geren – Those people probably shouldn’t be bailed at all; have an issue with the different standards for charitable and for-profit bail bondsman
    • Trying to determine who these folks are, what their agenda is, are defendants getting a break
  • Clardy – Really only two issues, bond amount and ability to pay; but source of funds, whether private bondsman, charitable, etc. is irrelevant to the analysis of the court
  • Clardy – This idea didn’t spring from your mind correct?
    • Correct
  • Clardy – Issue was of great contention among the members last special session,
    • There is some public interest in the transparency of this issue, think there is room to work with Senate, Gov’s office on how we get there
  • Ann Johnson – Appreciates changes on affidavit
  • Johnson – What charitable orgs are you concerned are giving people a break that they shouldn’t be?
    • Don’t personally have concerns, Sen. Huffman may be able to answer
  • Johnson – Heard from charitable orgs that they usually attempt to get people released on low-level offenses for small amounts because many of these people
  • Johnson – Highlights surety bond, defendant can pay a small amount of the bail and then can pay this to bail bondsman to bond the full amount; bail bondsmen are allowed to bail violent offenders under the bill, denying charitable orgs will increase number of offenders seeking surety bonds
    • Not the intention of the provision
  • Johnson – Not your intention that this is a vendor bill; charitable bail usually posts full cash amount for issues like DWI
    • Can still do this under the bill, can still make bond for vast majority of crimes
  • Johnson – Do you limit the number of times a charitable bail org can participate?
    • Don’t think we do, definition of charitable org is 3 or more times in a 180 day period
  • Johnson – 3 times in 180 days
    • Sounds like an issue that we need to keep working on, glad everyone is back at the table
  • Johnson – Concern is that this issue keeps coming back to the table
    • Understand that
  • Johnson – No link between cash bond and public safety
    • Don’t think that’s entirely true, encourages people to appear and trying to measure effect on public safety
  • Johnson – You said if a family member does a Go Fund Me that’s okay? Jan 6th participant got donations to meet $1 million cash bail; highlights case of Kyle Rittenhouse, was able to solicit funds; charitable bail provision excludes these cases
    • Other parts of the bill will hopefully prevent this sort of thing from happening
    • Public safety report system will provide info to magistrates quickly
    • Seeing a large number of releases of violent offenders, necessary to educate magistrates and provide them with more info
  • Johnson – Highlights that judge was given history in the Damon Allen killing, defendant had a current statement that he wanted to kill cops, why should the current statement of intent not have a greater weight than the prior criminal history he was released under
    • Would be nice to know this
  • Johnson – You said that you aren’t impeding judicial discretion, but in Sec. 6 & 7 it restricts PR bonds for certain offenses; why is the “aggravated promotion of prostitution” offense keep showing up?
    • Issues with human trafficking, etc.; not wanting a PR bond for this offense
  • Johnson – In the Regular Session there was an amendment that was accepted to correct this, this is a charge often used against the women who are the victims, concerned that this returns
    • I get your point on that, at the time we said we would have further conversation
  • Johnson – Yes, and here we are again on something we believe we worked out in good faith; removing discretion for judges to let the victims out on PR bond, requiring cash bond can put the victim in further debt and exacerbate the problem; impedes judicial discretion
    • Aggravated promotion of prostitution is a first degree felony, delas with ownership and management
  • Johnson – Former prosecutor, can be multiple women charged acting at demands of a pimp; blanket inclusion of this indicates that this isn’t public safety focused, prosecutor can charge in interest of getting woman into a shelter
    • Would be glad to continue the conversation
  • Johnson – What does “court” mean on page 10?
    • If a person commits another offense in the same county, only that court can set the bond
  • Johnson – Does this include magistrates, others? Want to make sure we’re not talking about the particular elected judge
    • This is my thought on it, if it was limited would reference the judge
  • Johnson – Would you be willing to allow the extensive conversations on July 10 to be included in testimony record?
    • Chair Ashby asks Smith to think on it, July 10th was a long time ago
  • White – Wants the conversation on charitable bail to continue; do we have shady charitable orgs in Texas?
    • Personally not advised about this, Sen. Huffman would likely be able to answer
  • White – Need to get more information, maybe come back in a future session
  • White – How do you envision the report process working?
    • Will all be computerized, will be able to enter in defendant info and a report will be generated; will be much more info than a typical magistrate would ever have
  • Bucy – See no progress on the charitable bail provisions, bipartisan support from committee members
    • If committee votes out, changes would be on the floor
  • Bucy – So you’re seriously open to changes on the floor for charitable bail?
    • Seriously open to continuing the conversation
  • Bucy – Provision makes no sense, these are individuals who want to help and bill will make it harder for them to do that
  • Thompson – What is the distinction between religious and nonreligious charities? Both restricted to no more than 3 in 180 days?
    • Charitable bail provisions do not include families and religious orgs
  • Thompson – Why is there a discrimination between these orgs?
    • Assuming the Senator and Lt. Gov. have examples of charitable orgs of concern
  • Thompson – And they didn’t share this info with you to defend this portion of the bill; bill is discriminating between religious and nonreligious
    • Anecdotally, we believe there is more involvement in the charitable orgs than we’re aware of; point is to get more info on these orgs
  • Thompson – There are some religious orgs that received criticism and public may not support them, but we’re not scrutinizing them
    • Point is well taken, want to continue to work on this provision and visit on what it will look like or if there is one
  • Thompson – Bill restricts bond for certain offenses?
    • PR bonds on certain offenses
  • Thompson – Will this bill necessitate new software?
    • Yes
  • Thompson – Will be required to be used in all counties?
    • I think there will be a site that counties can access through their current system and will be provided free of charge
  • Thompson – I think this is a vendor bill for software and bail bondsmen, helps private prisons
  • Lozano – Page 14, Line 14, requires the court where case is pending to issue bond for organized criminal activity, PR bond allowed; should not allow PR bonds for organized criminal activity
    • Remember the dialogue, this particular charge has many facets, can wrap up low level offenders
  • Lozano – Highlights portions of the charge focused on drugs, wants to target drug traffickers
  • Johnson – Is anything on July 10th different, is the conversation still relevant on portions that haven’t changed?
    • Can’t recall
  • Johnson – Familiar with the dashboard in Harris County, overcrowding; concern that bill will negatively impact Harris County progress
    • On the balance, this bill will mark an improvement for lives of inmates
  • Johnson – What money is available to implement this system?
    • Fiscal note related to development, but talking about counties using existing infrastructure to access the system and forms
  • Johnson – What money is being given to counties to compensate for increased number of people that will be in jails?
    • Information given to judges will also likely allow them to grant PR bonds when they wouldn’t
  • Johnson – No money to counties?
    • No
  • Moody – Problems with cite and release, new report req could lead to these individuals being held; could modify to allow discretionary PSR; is this something you’re committed to clearing up?
    • Want to continue to discuss this and craft something that works, can’t make a commitment right here
    • Talking about a limited number of charges, important part is officer wouldn’t need to do PSR at point of citation
    • Understand that each county has a different variation, need to craft something that works for the state
  • Moody – There is a construct for permissive PSR on fine-only charges; we have jurisdictions that treat these almost like a pre-trial diversion, appreciate you looking at this
  • Moody – Time and wait for those waiting for PSR is a big concern, envisioning a nearly instant system; would you be open to explicitly directing OCA to develop system that gives an immediate result?
    • Need to be careful given we’re dealing with an electronic system, think you will be satisfied
  • Moody – I think we can put direction in without tying the hands of OCA
  • Moody – Language on affidavit used to request lower bond is greatly improved, but bill contemplates adversarial hearing and should be requiring counsel to be appointed for this; would you agree to work with stakeholders on this?
    • There are a number of options, will continue to work; this provision applies in a limited circumstance for counties with a bail schedule or standing order
  • Moody – The charitable provision has no chance of surviving Equal Protection claim, no basis for saying who can pay and who is not; should resolve this on the floor before a court does it for us
  • Moody – Eligibility for PR bonds is the most concerning portion of the bill; bill is covering a huge range of conduct, e.g. assault can be a large number of minor offenses like pushing, etc.
  • Moody – In firearm conversations, always hear that mere accusations can lead to firearm rights being infringed, now talking about liberty being infringed based on accusations
  • Moody – Bill is about how wealthy a person must be to obtain release; should replace PR bond section 6 & 7 of this bill with section 4 of HB 20 as it left the House during regular, that version had been worked on for years
    • PR bonds restricted for defendants in charges involving violence, assault portion only applies if it is the second degree felony version that is 2-20 years
    • Can’t get a PR bond if you’re already out on bail and you commit an assault
  • Moody – Doesn’t change that we’re talking about accusations only
  • Geren – Would the Class A misdemeanors not get bumped up to felonies for elderly claimants?
    • It does
  • Geren – So simple assault could become a felony, there are enhanced penalties for crimes against the elderly
    • Assault envisioned under the bill is specific to judge or officer offenses
  • Geren – Concerned about where we’re going with this just because someone says you did it
  • Chair Ashby – Commends Smith’s commitment to work on portions of bill, 7 members and Chair Ashby have concerns on the charitable bail portions of the bill

 

David Slayton, Office of Court Administration – Resource

  • Judicial Council has been engaged in this effort for years, have made many recommendations to the legislature on this with goal of giving magistrates more information in setting bail
  • Chair Ashby – Asks for more detail on the report
    • Have a basic model of the public safety report that has been piloted in some counties, bill will require additions, e.g. mandatory and discretionary bail conditions
    • Under current system, not integrated under DPS systems
    • Only info needed would be defendant’s name, DOB, etc. then info would be available
  • Heard questions on whether this would affect defendant’s ability to bond out within timeline, covered under the bill
  • Have concerns about being able to integrate with DPS systems, would ask that the December timeline be adjusted
  • Thompson – Do you have knowledge on why there is a distinction on charitable bail orgs?
    • Not aware, distinction was not included in recommendations from the Judicial Council
  • Johnson – Would counties that have already created reports or risk assessments be able to use their current system?
    • No prohibition against using those, but bill reqs criminal history be pulled from DPS and reqs they look at public safety report; could continue all other things they are doing or not doing now
  • Johnson – Will the OCA criminal history check have a timeline?
    • Bill does not have requirements for this, OCA intending to include all criminal history
  • Johnson – So will judge be able to know prior felonies were 30 years ago?
    • Public safety report would list the 3 felonies only, criminal history would include information if the judge looks at it
  • Johnson – So even in the counties that have spent the time and created this type of system and have spent money on it, they would have to use your system?
    • Harris County system is the same as what is conceived under the bill, only difference is that bill prohibits OCA tool from having a risk assessment score system
  • Johnson – Why?
    • Not sure
  • Johnson – Your system will not look at risk?
    • Bill prohibits this info being given to judges
  • Johnson – Stated purpose of bill is to provide info on future risk?
    • Info would be there, but system does not provide an analysis
  • Johnson – Surety bail personnel are not publicly elected or held accountable; funneling defendant population to surety bail system does not equate to public safety
    • Magistrate or judge will look at
  • Johnson – Nothing judge can do to stop for-profit bail orgs even with high amount
    • Nothing a judge can do to stop that
  • Thompson – Is there an info center for JPs, training? No money under bill for this
    • Money already provided covers this, bill requires training for JPs and judges, needs to be a certification that they understand what they’re doing; OCA is required to come up with this in concert with Court of Criminal Appeals
  • Thompson – Money was provided in the GAA for this bill specifically?
    • Money was for judicial training, understanding is there are resources in that appropriation to cover this training
  • White – What happens when the system is down or there are outages?
    • Would like to commit that system itself wouldn’t go down, will do what we can to ensure redundancy
    • Will need to figure out ways to deal with this as we roll it out
  • White – Asks after rural counties running the report
    • Will need to enter the defendant’s ID, current charge, info will then be pulled for the PSR
  • White – Doesn’t seem to be a lot of fiscal implications with this, shouldn’t take any additional time to run this report
    • Correct, integration with DPS is important to allow timely information, assuming that happens it will be rapid
  • Moody – Can always give you more time for implementation; want language to steer OCA towards rapid info
    • Clearly OCA’s intent to provide info without delay
  • Moody – What would you consider with delay?
    • More than 10-15 minutes would be an unreasonable amount of delay; shouldn’t take more than a few seconds
    • Pulling exact info from TCIC that you’re used to seeing, call between our system and DPS systems and then displaying that

 

Public Testimony

Nikki Pressley, Texas Public Policy Foundation -For

  • Bill is step in the right direction
  • Room for improvement, but bill is good to strike balance between not jailing low-level offenders and not releasing violent offenders
  • Requires least restrictive means, determination of criminal history, and training
  • Recognize the difficult task in working on comprehensive bail reform
  • Thompson – what is position on charitable or religious?
    • Have not taken a position, not sure how much an impact that will have on improving public safety

Lauren Rosales, The Bail Project – Against

  • Support lower income when they are at risk of losing everything
  • Should not be a target of government overreach
  • Under bill language, bill is unfair and discriminatory because it treats charitable organization monies differently
  • Bucy – asked for perspective on charitable bail funds and how they determine which clients to accept or deny
    • Feel they are unfairly targeted
    • They step in when cash bail set by judge and figure
    • Try to figure out individual needs, social services needs (health or mental health needs)
  • Bucy – asked about accusation that individuals out on bail committing crimes
    • To their understanding no charitable organization was in those cases, surety bonds were involved
    • Agrees it is because of their wrap around services
    • Speaks to questions on demographics, much of the black and brown community and economically disadvantaged are the people they serve
  • Johnson – what kind of cases do you get involved in?
    • Case by case, will look at individual needs and challenges getting to court
    • Confirm “Public safety is not something they will look passed”
    • Agrees that earlier statement was that for profit industry is $2 billion industry
    • Again confirms in cases the DA flagged, the offenders were not out on charitable bonds but surety bonds

David Gonzalez, Texas Criminal Defense Lawyers Association and Self – Against

  • Language in bill uses charitable and personal bonds to remedy a surety bond solution
  • Thinks magistrates should have more discretion on the front end

Jeffrey Stein, Civil Rights Corps and Self – Against

  • Section 6 of bill language requires large categories of presumptively innocent people to be retained but identical people with identical crimes will go free simply because they have the cash
  • Bill would expose municipalities across the state to litigation
  • Johnson – Asked if in all studies and research do they see any correlation between ability to post cash bond and public safety?
    • “Absolutely not”
  • White – Asked about Rosenthal case, just about misdemeanors and not felonies?
    • That is true, correct
    • White – you are combining and conflating some things
    • White – feels bill is trying to do address repetitiveness of other violent felonies
  • Bill takes away ability for judges to look at individual cases
  • White – argues if they continue the messaging they are working on, a bad bill will be passed
  • White and witness continue to restate their point of view
  • Reiterates earlier arguments

 

Ken Good, Self – For

  • Big disagreement is urban areas, high population areas – how do you process a large number of individuals
  • Concerns with sections tied to constitutional amendment
  • Johnson – what risk do you consider?
    • We take risk into account every day, risk for failure to appear
  • Johnson – seems like bill language pushes people back to you (bail bond industry), taking away judicial discretion
    • Disagrees, that is current situation
  • Speaker asks witness to stay on topic of bill and urging of member
  • Johnson – this bill that takes away judicial discretion, brings up an example (Robert Solis – all public record), again asks about what risk is considered?
    • Number one thing they do is provide supervision for those out on bond
    • Cannot do similar wrap around services as charitable organizations by law such as find them legal services
  • Discussion between witness and Johnson about cases during and after Harvey and then COVID with backlogged cases
  • Johnson concludes bill is about Harris County, witness disagrees

 

Andy Kahan, Crime Stoppers of Houston – For

 

  • Have a poster of all victims but cannot show it to them so its in the room and up to them whether they look at it and not
  • “Crime is up and its due to bail”
  • Not hearing about people who are shot or killed, the victims
  • Examples of people out on bonds, etc
  • Clardy – asked for him to show the poster
    • Was told he will be taken into custody, but after assurances from Clardy poster was shown
    • Clardy appreciates the testimony and affirms discussion is needed about victims
    • Points out woman shot and killed by person out on felony PR bond
  • White – title of poster is felony bond reform crime stoppers, what is position on misdemeanor bail reform
    • Support it, have no problem with bond.. concern is about individuals repeatedly getting out time and time again

 

Kartier, Common Cause Texas and here for Self – Against

  • Tells personal story
  • Massive debt that can be acquired under system is not taken into consideration
  • This is not the way to reform
  • Consider human loss due to criminalization of poverty

 

Stephen Vigorito, (serves as Judge in Travis County) but here for Self – Against

  • Example provided and need for judicial discretion
  • Johnson – asked about thoughts on judicial discretion?
    • There are legitimate concerns in bill, agree the need to address repetitive issues but do not restrict judicial discretion
    • Including misdemeanor cases with no prior history will create real problems

 

Justin Martinez, Texas Criminal Justice Coalition – Against

  • Consequences, any attempt to reform bail must look at harms
  • Practices need to keep more out of jail versus keeping people in jails
  • Provides statistics of demographics
  • Hope is language will be corrected to address harms of pre-trail detention

 

Karen Munoz, Mono Amiga/Latino Justice and Self – Against

  • Family victim of violent crime, so hurtful to hear she may not care
  • Personal example
  • Expanding pre-trail detention will exacerbate situation in jails currently

 

Carson White, Texas Appleseed and Self – Against

  • Bail scheme they are considering passing is unconstitutional
  • Predicts devasting consequences with bill passage

 

Andy – Against

  • List several concerns
    • Language addresses misdemeanors and nothing to address overall goal they said they want to address
    • If internet goes down, person stays in jail under current bill language
    • Asks why misdemeanors in bill need to be addressed
    • 280k felonies, 450k misdemeanors annually
    • More hearings requiring more people – $62 million a year additional to just addressed one part
    • No funding from state side for any funding needed in bill, would all be property taxes
  • Thompson – what are other costs and problems?
    • Misdemeanor caught in this process means those people spend more time in jail and it will be local cost to taxpayers, could address by taking out the misdemeanors
    • Did estimate costs at conservative estimate for $60 million, 20% of current indigent defense cost
    • Chair – point well taken

 

Adam Haynes, Conference of Urban Counties – Against

  • Author has open door policy, work with them and addressing concerns but still have some – clarifies no surprise how much the author is working with people
  • Bill has potential to be a dramatic change
  • Thinks costs can be estimated and it can be a big number

 

Ash Hall, Self – Against

  • Argues bills creates disparities or makes things worse
  • If you have enough money can commit whatever crime you want and bail out

 

Nick Hudson, American Civil Liberties Union of Texas – Against

  • Section 6 and 7 have major constitutional problem, makes locals very vulnerable to prosecution
  • Not about keeping dangerous people behind bars but poor people behind bars
  • This sets up scheme already seen as unconstitutional filed by 5th Circuit, recommends striking those sections altogether

 

Mike Hartman, Texas Probation Association – For

  • Need more funding in general to address these cases
  • Gives statistics on increases in cases
  • Johnson – would like details on what he thinks real cost would be

 

Russell Schaffner, Tarrant County – For

  • Would like clarification on the language in part of the bill regarding assignment of duty
  • Another section on magistrates requirements, they have one that lives out of county so would like grandfather provision
  • Unsure of exact financial impact of bill on their budget, have some concerns
  • Shaheen – asked if they had talked to bill author?
    • Not yet, but happy to reach out
  • White – asked witness about comment that they have hundreds of people ready…will be making a call, they need to get a bus and get people moved, something they can do now
  • Johnson – seems all feeling crunch from COVID and hard to get to trail, is that fair?
    • Yes, they have been struggling with how to dispose of cases

 

Juda Rice, self – Against

  • Concerned about many portions but mainly charitable bail funds
  • Charitable bails have been lifeline for many, feels bill attacks charitable bills
  • Thompson – said Lt. Gov has problems with charitable bails, gave recommendations to talk the offices who have issue with charitable bails
  • Thompson – you use US currency?, provides example of why asking
    • Yes

 

Wade, self – Against

  • Already people in jail waiting for trail, this will become more common if bill passes
  • This bill passes off responsibility to profiteers

 

Rep. Smith Closes

  • Appreciates interaction and looks forward to more of it
  • Reps. Ashby and Smith decided to defer voting to Monday most likely given testimony they have heard

 

Bill left pending